Every day, judicial officers across Australia are making hundreds if not thousands of bail decisions. These decisions and the legislative regime in which they are made are a fundamental part of the Australian criminal justice system. Bail law is in constant reform receiving a high level of publicity and, at times, criticism. Largely driven by negative publicity, bail law reform has seen individuals’ access to bail restricted rather than expanded.
Bail decisions attempt to balance safety of the community and those affected by alleged offending, and the accused person’s liberty in circumstances where they are presumed innocent. When judicial officers attempt to mitigate against harm and risk through appropriate bail conditions, there is often good reason why a person should not be granted bail. That might be because of the offence they are alleged to have committed, the known facts surrounding the alleged offence, or their background. They might be wrongly accused and if refused bail that period of time on remand would have been entirely unnecessary.
Hugo Law Group partner Helen Christinson recently spoke with The Australian (read the full article here) about how “knee-jerk” bail reforms may have unintended consequences. Creating a legislative regime which removes or restricts a person’s ability to apply for bail, either because of the offence or their background, is problematic for a range of reasons. Importantly, it removes the ability for Courts to make an individualised evidence-based decision.
Now come the mice.
Applying economies of scale, I initially questioned the cost benefit of having chickens in my backyard at home. I must admit, I was initially horrified at the price of each egg after considering the cost of buying the chickens and the necessary equipment, building the coop, and the ongoing feed. My family soon enjoyed the social, and in good time, financial benefits of caring for a small flock of chickens.
After finally achieving economies of scale, we went from buying a bag of chicken feed every six weeks to buying a bag every two weeks. After discussing the problem with someone very dear to me that I trust completely they were of the view it was the local bird and mice community that were helping themselves to the chicken feed. The local bird and mice population were being accused of interfering with the economies of scale. They were being accused and I was prepared to assume they were doing something wrong because it appeared logical.
The very sensible person whom I trust suggested we wrap the coop in bird netting to prevent the birds from having a free feed. Bird netting is not cheap, and my free time is precious. I questioned the basis of the decision and considered what the appropriate decision was to make in the circumstances. I was not satisfied on the balance of probabilities it was necessary to wrap the coop with bird netting. This created a conflict; all be it a small one.
It’s not that I don’t trust the person that suggested the local bird community was part of the problem, I wanted to make an evidence-based decision. I also did not want to interfere with the bird’s liberty unnecessarily.
I purchased a day/night camera with motion sensors. The evidence gathered established the local bird community was not the true culprit. It was the local mice community, and a lot of the little buggers. Yes, mice from across the region were fattening up on chicken feed we had been purchasing with our hard-earned money intended for chickens.
What if I had mitigated against the harm and risk by netting the coop? I would have spent valuable resources by unnecessarily restricting the movement of the local bird community. Sure, those birds might have been having a little nibble. I can deal with a little nibble. I cannot deal with feast. A feast is an unacceptable risk.
On the balance of probabilities, I was not satisfied the local bird community created an unacceptable risk. I was further satisfied they were unlikely to interfere with the now efficient economies of scale. Application for bail allowed. The presumption of innocence of the local bird community remains.
There are people that have far more expertise and experience than I do in caring for chickens. My chicken career is amateur at best. The experts would have told me the problem was mice without the need of wasting even more money to purchase a day/night camera with motion sensors. It would not however have been evidence-based, nor would it have been individualised.
An accused person’s liberty and presumption of innocence is important and the decision to interfere with it must remain evidence-based and left to the Courts to decide on an induvial basis. Evidence-based decision making provides for a consideration of all the circumstances to make a decision and potentially tailor bail conditions which mitigates against harm and risk.
Not only did I find out that mice are feasting on our hard-earned money, but our beloved labrador Lexi is on border patrol making visits to the coop at nighttime.
So is a local cat eager to introduce herself to the mice and impose herself in the Animal Kingdom.
As for the mice, I satisfied myself on the balance of probabilities they impose an unacceptable risk and if they were allowed to continue in the community, they would interfere with the efficient economies of scale. This is an appropriate situation after considering all the evidence they should not be entitled to enter the coop and their liberty needs to be restricted. Application for bail refused. I am open to considering a further bail application should there be additional information that might inform an evidence-based decision.
Tom Taylor, Partner
