Supreme Court in Darlinghurst, Sydney, where Steven Fesus' trial took place.
Bail Laws | 21 April 2016
In 2014, Steven Fesus, who was awaiting trial on a murder charge, was granted bail by the NSW Supreme Court in Sydney following a successful application made by his lawyer Dennis Miralis. Community outrage and a media frenzy followed – after all, he’d allegedly confessed to the crime which occurred some 16 years earlier, had been in custody since 2013, and had two previous bail applications rejected.
How was it that a person still being accused of murder and awaiting trial was suddenly no longer considered a risk to the community? Was this decision just? And would the same decision be made in 2016 in similar circumstances?
To answer those questions, let’s delve into the NSW bail laws, and the events of the past few years that have led to more than one re-think on whether the state’s bail laws are just and effective.
The NSW Bail Act, which dated back to 1978, had been amended over 80 times, resulting in a piece of legislation that was confusing and complicated. A new Bail Act 2013 was introduced to replace it, and it had some key changes that would soon result in controversy.
Previously, certain crimes (such as murder) resulted in an automatic denial of bail. But the new legislation replaced this with the concept of ‘unacceptable risk’, meaning that bail decisions were not based on the nature or severity of the crime, but on whether the alleged offender presented an unacceptable risk to the community.
In order to determine whether an alleged offender presented an unacceptable risk, certain factors would be taken into account, including:
Whether it was likely that they would fail to attend at any future court dates or matters related to their trial.
Whether they would or were likely to commit a serious offence while out on bail.
Whether they might endanger the safety of victims, other individuals or the community at large while out on bail.
Whether they might interfere with witnesses or evidence prior to their trial date.
Lawyer Dennis Miralis considered that his client Steven Fesus would likely pass the unacceptable risk test, despite being accused of murdering his wife Jodie, because he was supported by the couple’s children, had strong community ties, a favourable employment history, no prior criminal record and would be defending the charge, which raised the possibility of a lengthy stay in jail before the matter was given a trial date.
He had also been living in the community for many years after the alleged offence, apparently without incident, which was likely to weigh on the side of him being at low risk of offending if freed on bail.
Further, although this was not a matter which would be taken into account in determining whether he passed the unacceptable risk criterion, Fesus's lawyers later argued that while he had previously confessed to the murder, his confession was false and he had withdrawn it.
An application was heard in the NSW Supreme Court on June 16, 2014, which resulted in Fesus' release on bail.
There was an immediate public outcry. Fesus' alleged crime had taken a grip on the public imagination. Many people who had previously been affected by violent crimes considered it personally offensive and a "slap in the face" to see alleged offenders such as Fesus walking free in the community, and to see accused criminals have another bite at the cherry by being able to make fresh bail applications.
Another controversial decision included the release on bail of Hassan “Sam” Ibrahim, a known bikie who had been accused of firearms supply. In a test of the new laws, the Crown appealed the decision. In support of his renewed application for bail, Ibrahim argued that he was in solitary confinement in prison – a traumaticexperience for him – and that he needed to help care for his ex-wife with cancer. But his bail was revoked on the basis he posed an unacceptable risk of offending while on bail.
Decisions such as releasing Ibrahim and Fesus on bail resulted in some social commentators claiming that the NSW Government had become "soft on crime".
But the story doesn’t end there. Facing community backlash from legal professionals, politicians and many victims of crime, a review into the bail laws was conducted, led by former NSW Attorney General John Hatzistergos. Following the review, changes were made to the Act in the Bail Amendment Act 2014, which came into force in January 2015.
As we wrote at the time, the key changes included:
A change to the definition of ‘unacceptable risk’ requirements.
The introduction of a ‘show cause’ provision - meaning that in certain circumstances those charged with serious offences would need to prove why they shouldn't be detained.
However, another less publicised change was that a requirement for bail authorities to specifically take the presumption of innocence and the right of each person to liberty into account when making decisions on bail was removed.
Legal commentators, including the NSW Bar Association, reacted critically to the changes, complaining that they breached human rights because they marked a return to assessing eligibility for bail based on the nature of the offence rather than the individual circumstances of the accused and the circumstances in which the crime was allegedly committed. It was therefore considered that the presumption of innocence was undermined, and all of the worst parts of the previous laws had been reintroduced.
Other ways in which the presumption of innocence could be considered to have been undermined include:
Considering the welfare of the community to be more important than the freedom of the accused and the presumption of their innocence.
Requiring the accused to prove that they should be released on bail – under the show cause requirement – means that instead of being innocent until proven guilty, the accused effectively needs to prove that they are not guilty.
This is an important legal distinction.
The horrifying events in the Lindt Cafe on Martin Place in December 2014 brought issues relating to bail starkly back into the public eye. Perpetrator Man Monis had been released on bail only six days after the laws were changed. Had he not been on bail, he would not have been able to engineer the Lindt Cafe siege, and he would have been unlikely to have been bailed under the updated laws.
The siege sparked further changes to the bail laws, announced by NSW Premier Mike Baird in August 2015.
Under the changes, which have passed NSW Parliament, bail will be refused to anybody with any links to extremism or terrorism, and any statements they might have previously made in relation to terrorism must be taken into account in the ‘unacceptable risk’ decision.
These changes have caused further controversy as they are considered to breach human rights of association.
Ultimately, the law is capable of being changed and adapted to take into account global and local conditions, and respond to situations as they arise. We are unlikely to have a clear picture of the impact of the new bail laws for some time, however one immediate impact has been a significant increase in the number of people being refused bail, which has led to increased pressures on the prison system and the criminal justice system.
Fesus finally proceeded to trial in late 2015. Evidence was heard for some months, but on December 22, 2015, the jury was formally discharged after they were unable to reach a unanimous verdict. Fesus now faces a retrial.
The new laws make bail applications critical. If you have been accused of a crime, and would like to apply for a release on bail, having an experienced criminal lawyer with a track record of successful bail applications can make a difference to the outcome. Call 1800 NOT GUILTY, or fill in our contact form and arrange a freeconference with a solicitor today.
If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in children criminal proceedings. Call 1800 NOT GUILTY and arrange a free conference with a solicitor today.