Northern Territory Second Reading Speeches

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BAIL AMENDMENT BILL 2003

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bill be read a second time. As I have signalled clearly and publicly so far, I wish to have the Bail Act amended to correct what I consider to be an anomaly on how the Bail Act is used. In my second-reading speech here today, I will touch on three major themes which, in some degrees, intercept in relation to how the operation of how the Bail Act is being used by the courts at the moment.

The first part of my themes is the fundamental breach of the simple principle of law. That simple principle of law, under our legal system, is that a magistrate or judge would even be prepared to allow a person to be sent for punishment before that person had been convicted under the criminal justice system. The second theme which underlines my comments is the lawfulness of the bail in the first place. Finally, and to a lesser degree, but still a theme that has to be touched upon, is a possible defence which is created under section 26 of the Criminal Code, which deals with authorisation.

I am a little surprised, frankly, that I have to bring this amendment here into this Chamber at all. I am always mindful of the principles that separate us and our law-making cousins in the judiciary in the Northern Territory. Those principles that separate us are very important. However, there are times that it is necessary to step over those boundaries and this is one of those occasions where it is acceptable to do so. The reason I do so is because I have a concern that a fundamental principle of law has been breached. That fundamental principle of law is simply this: where a person is charged with an offence, they have not been convicted of that offence; where they stand unconvicted, they are innocent and, to that end, should not be sentenced to any form of punishment, logically.

I draw members’ attention to Division 2, Part 1 of the Criminal Code, section 5, which deals with innocence. It is very eloquently and simply expressed in the Criminal Code: every accused person is presumed to be innocent until the contrary is proved. Of course, that burden of proof is reasonable doubt. Before we even get to that stage, when a person is arrested for an offence, they are often taken into custody and, when taken into custody, they are still innocent people. It is a fundamental principle of bail that a person has the right to be at liberty rather than in custody. It is an established concept within the terms of the Bail Act. The reason that liberty exists is, quite simply, because a person who has been arrested is not guilty and, therefore at that point, is still an innocent person and, therefore, has a right to be at liberty.

That presumption of bail is reversed in certain circumstances. The circumstance that brought about my comments late last year in this House, was that one of the offences for which the presumption of bail to be reversed is actually murder. It is my understanding that, in the situation that brought about my comments here tonight and late last year, that person was charged with murder. The reports in the newspaper of the day certainly indicated that that person was charged with murder, and that bail had deliberately been set by the court of the day so that that person would be released for one purpose only - and that purpose was to suffer a punishment.

I am surprised that a court would allow that to occur. Nevertheless, it has occurred in that instance, and so consequently, we found ourselves in a situation where an innocent person was sent to be punished, and the innocent person ultimately was punished. As a consequence of that punishment, that person suffered fractures to legs, multiple head lacerations, blows about the body and stab wounds. I have some problems that still at that point the person had not been convicted inside a court, and if the purpose of bail was to undergo punishment alone, then I think that that fundamental principle of law is confronted.

I draw members’ attention to the bill and particularly subsection 2 of the proposed section 24A, and this endeavours to create a new section, but this subsection 2 refers to section 24(1)(b)(iii). Now, section 24(1)(b)(iii) is the section as I understand it relied upon by the magistrate in the instance that I am referring to as the process by which that person received bail. Inside the Bail Act there are certain criteria as to how bail may be arrived at by court and that is section 24, which is the section that my proposed section refers to, and criteria to be considered in bail applications include, and in subsection (1)(b):

The interests of the person having regard only to,

- and then sub-subsection(iii):

The needs of the person to be free for any lawful purpose not mentioned in subparagraph (2).

Subparagraph (2) is the needs of the person to be free to prepare for his appearance in court or obtain legal advice, or both, so any lawful purpose. I would suggest that the purpose for which the person was bailed was actually not lawful and where I derived that from is that in section 26 of the Criminal Code, and I would urge honourable members to remember that everything is unlawful in the Northern Territory unless it is authorised, justified or excused, and in terms of section 26, that is where we draw our authorisations from and it is interesting to note that in subsection (3) of 26:

A person cannot authorise or permit another to kill him or except in the case of medical treatment, cause him grievous harm.

Now, this is a long-established principle of law, that you cannot allow a person or give consent for a person to cause you bodily harm. This goes back to an English case when this was first explored called R v Donovan (1934) 2 KB 498 and in this particular case it was established that bodily harm could not be given consent to.

There is a clear distinction, and it is important to make a distinction in the Northern Territory, between grievous harm and bodily harm. Bodily harm is actually quite a low level of physical harm whereas grievous harm in the Criminal Code means:

Any physical or mental injury of such a nature as to endanger or likely to endanger life or to cause or be likely to cause permanent injury to health.

It is a principle of English law that you cannot give consent for even bodily harm. However, I will talk about grievous harm a little bit later on. The right or the privilege of not being able to give consent to bodily harm was again confirmed in R v Brown & Ors (1993) All ER at page 75, and once again the law lords of England looked at this particular issue of whether or not a person could consent to allow bodily harm to be done to them, and although there were dissenting lords, at the end of the day the court upheld the principle that you could not give consent for bodily harm.

In Australia, and much more to the point, McPherson J in R v Watson (1987) 1 Queensland Reports at page 440 talks about the consent aspect of grievous harm, and although it is an obiter it is worth pointing out his comments in the case. In the case of R v Watson a woman with whom the offender was charged with killing had died of the effects of a stab wound in her abdomen. The accused had stated that he had not intended to kill her or cause grievous bodily harm, but he had wanted to simply cut her on the arms and ribs as a form of domestic discipline, a practice that was apparently accepted as widespread. McPherson J said that a cut of that order can constitute bodily harm as involving an injury which interferes with health or comfort. As such, the law does not recognise the consent of the victim as a circumstance capable of depriving the act and producing such harm of its criminal character as an offence under section 339 of the Code. He then goes on to talk about R v Rudd which was a similar case and supported R v Donovan, which I referred to earlier.

Bodily harm in different jurisdictions means slightly different things, but in terms of the Northern Territory, bodily harm is quite a mild piece of damage to the person and, as I have already described, grievous harm is a much more serious injury. If we are to believe the cases that I have outlined, and if we are guided by section 26 authorisation under the Criminal Code, then a person cannot authorise or permit another to kill him or, except in the case of medical treatment, causing grievous harm. Bearing in mind that the Bail Act allows a person to be bailed for a lawful purpose, I would suggest that the receiving of the injuries described to the person who was affected by this form of punishment was in fact an unlawful reason to be at liberty. Consequently, I feel that the magistrate – and I am not a lawyer; I stress that – seems to have relied on an act on the face of it which he was not empowered to rely upon. If the reports of the injuries that this individual suffered are to be believed, I would suggest that it does satisfy the term ‘grievous harm’ and that this creates then a difficult situation for the court, especially if that person had passed away as a result of the punishment that was inflicted upon them.

I have experience that stab wounds to the thighs can kill people. I have seen it, when I was a policeman, and I know that those sorts of wounds can kill people. It is a very difficult moral situation that a court finds itself in. It also raises another scenario: should the person in this instance have passed away, does it raise then a defence or should the person have made a complaint, for whatever reason, that they were assaulted, or that complaint was made on that person’s behalf by a third party, would that then allow the person who is charged with the offence to rely on section 26 of the Criminal Code and say: ‘I committed an act which induced grievous harm, authorised by a court to do so because obviously it was in the mind of the magistrate that I should be able to do this, spear the person or whatever else, with the authority of the court’.

It is a difficult legal quandary, and it is something I hope the Attorney-General’s department looks at when they have to assess the material will come out of the second reading speech because I think it places the court in an invidious situation of being the authorising body to what may ultimately become, in its own right, a criminal act under criminal law. It is an intriguing situation. I have no answers for it, but I do know that if there is any risk of this predicament rearing its head in the courts, they should not be entertaining these concepts.

There are other effects, of course, is that although the person in this case was ultimately found guilty. What would have happened if he had been found not guilty after being punished for the crime. And that also places the court in a very difficult situation, because it would be a strange thing, indeed, for an innocent man to have been punished before he was tried. And that is one the fundamental principles of our criminal legal system.

Madam Speaker, this is not just targeted at Aboriginal traditional law. This is targeted at any customary practice that falls outside of the criminal justice system. I have had some cause during my research to bring this bill before the House, to look at the Sherea, which is the Islamic code of law stipulated in the Koran. And there are some suggested punishments in the Sherea which we would not commonly accept as reasonable punishments, and we certainly wouldn’t have placed ourselves in a position where we would bail a person to suffer those punishments. Indeed, in the Book of Leviticus in the Old Testament, just about everything is punishable by death, and, of course, we are still a predominantly Christian community but, nevertheless, we do not rely solely on our traditional punishments under the Christian structures.

What I am trying to do here - and I am certain that the honourable members will agree with me - is that I am simply seeking to bring an amendment which upholds the first principles of justice within our criminal justice system. It seeks to uphold common sense and seeks to protect the innocent under our criminal justice system. I hope honourable members will understand what I’m trying to do. I certainly hope the honourable members will turn an open-minded eye to this particular matter, and I certainly expect that the government will see the intent of the bill before the government and, ultimately, I commend the bill to honourable members.

Debate adjourned.

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