Domestic violence: Bill Potts says blanket bail refusal not the answer
Changes should be made in the way courts deal with domestic violence offenders with mental health issues, rather than making bail harder to secure, a prominent Queensland lawyer has argued.
That means a person charged with a domestic-violence-related offence would automatically be refused bail pending their court case being finalised and the defendant would have to prove why they should be released.
Attorney-General Yvette D’Ath asked her department to examine bail laws in other jurisdictions and Police Minister Mark Ryan on Thursday opened the door to possible ankle bracelet tracking for some offences on bail.
David Bradford, 52, was freed on bail less than three weeks before police believed he murdered his wife Teresa at her Pimpama home, and then killing himself.
Before his release, Mr Bradford had spent 44 days behind bars, accused of choking and assaulting his estranged partner.
Police reportedly objected to bail, pointing to his “fragile mental state” and saying he was an “unreasonable risk of causing self-harm or harm towards others”.
Queensland Law Society immediate past president and criminal lawyer Bill Potts said mental illness, alcohol or drugs were often involved in domestic violence cases.
Mr Potts said the society needed to deal with the causes, such as mental health, alcohol or drugs, rather than locking people up and throwing away the key.
“Rather than simply deny bail to the 99 per cent of people who do not breach bail in these circumstances and who are more than prepared to obey the orders which are made by the court, we should in fact ensure that the courts have the proper and appropriate means to monitor the fluctuating states of the mental condition of people who appear before them,” he said.
“People can appear to be quite sane when they’re applying for bail but their condition may change if they utilise drugs or alcohol or if their depression comes back.”
Mr Potts said courts should be notified of a defendant’s deteriorating mental health situation by hospitals, police, neighbours or “anybody who is in the position to see the person is hanging on by a thread or losing their sense of reality”.
“Courts are able to order mental health assessments … If there’s any change in that, the person books themselves back in hospital, the spouse notices that they’re deteriorating, that sort of thing ought to be told to the court, so up to date information is available to the courts.
“Rather than laws which on their face may be populist, what we in fact need is better resources for a court system that is stretched to breaking point.
“People act in these things, sometimes out of an explosion of rage or anger, but more often out of despair and where that’s tied up with a recognised mental illness.”
Also on Thursday, Mr Ryan said he would speak to the Premier and Attorney-General about Ms Bradford’s family’s comments suggesting ankle bracelets could be used to track accused DV offenders.
“I’ve got an open mind on that and I’m happy to talk with the Premier and the Attorney-General about that very thing,” he said.
“As I mentioned before, just a couple of moments ago, the Queensland Police Service is a world-leading police service in terms of being an early adopter of technology, so where there is technology to assist us in keeping Queenslanders safe, I’ve got a really open mind.”
Mr Potts said about 23,000 applications for domestic violence orders were made each year, which involved up to 46,000 couples.
“We simply cannot and ought not to have a rule that prevents people from getting bail because we simply do not have enough jails and secondly there is simply no need for such a course of action,” he said.
When questioned on whether his proposed law reform could lead to prison overcrowding, Opposition Leader Tim Nicholls said he believed the issue could be managed.
Mr Potts said people’s hearts must go out to the family and friends of Ms Bradford and people quite properly questioned what went wrong and whether lessons could be learnt.
“But I’m concerned that sometimes in the desire to do good and to prevent harm that we in fact can cause injustice,” he said.
Mr Potts said there had also been “unfounded and quite hysterical abuse” directed at Magistrate Colin Strofield, who allowed Mr Bradford to be released on bail.
“It’s all very well for people to be wise with 20/20 hindsight,” he said.
“We should be trying to ensure that our hardworking magistrates at the coal face of justice are given support and resources.”
Queensland Council for Civil Liberties vice president Terry O’Gorman said reversing the onus of proof for bail would result in defendants spending many months on remand before their cases were heard, when some would be found not guilty.
“[It will] cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped,” he said.
Mr O’Gorman said the Teresa Bradford tragedy should not be ignored but it did not demonstrate a systemic problem with the domestic violence bail system.
But he said the council supported a proposal to make police tell domestic violence complainants when the alleged perpetrator was released on bail.
Women’s Legal Service coordinator Angela Lynch said the WLS supported calls to reverse the bail laws where risk assessments identified red flags for victims’ safety.
She said the WLS also supported urgent consultation with stakeholders and experts.
“We’re heartened that bail laws are on the agenda for both sides of the aisle,” Ms Lynch said.
“I’m interested to see specifics on the private member’s bill to be introduced to Parliament by the opposition.
“This is complex. We need DV experts to be consulted. We owe it to Teresa and the women of Queensland living with violence to get this right.”
During January, the WLS received a 41 per cent spike in calls to its statewide domestic violence helpline.
Seek Legal Advice
If you are considering making an application to vary a domestic violence order or are the respondent to an application to vary a domestic violence order, you should seek our advice.