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life//Good news in hard places
Innocent, I presume?
David Pettett
November 4th, 2011

This blog is about good news in hard places. This week, while the man whose story is told here has had something of a good outcome, this is not a good news story. It is about the adverse effects the bail laws of New South Wales have on some of the most vulnerable people in our community. It raises the question of justice and how Christians can better advocate for justice in our community.

When he retired from politics, the former Premier Bob Carr, said one of his proudest moments in office was changing the bail laws from presumption in favour of bail to presumption against. With this change the remand population in NSW went from 700 to 2,000 overnight.

In the Remand Centre at Silverwater I met Ivan who was arrested on fraud charges. A very complicated business deal had gone wrong and the people he had been negotiating with called the police. Not making bail, Ivan was sent to the Remand Centre, a maximum security jail with 950 inmates. The normal routine here is that inmates are locked in their cells at 3.30 in the afternoon until 8.30 the following morning. This made it very difficult for Ivan to mount a defence.

It was the most stressful time he had ever experienced. He gained some support by coming to weekly chapel. But every day was full of tension as the police built their case. Ivan tried to gain access to all his records and find a barrister who understood all the implications of the financial issues involved and who would be able to explain them to a jury of lay people. He was in the fight of his life for eighteen months before his case came to trial.

Ivan was found not guilty. “Thank you very much. You can go home now.” Ivan had no home to go to. He had lost everything trying to fight to prove his innocence. A friend gave him a spare room. He went to bed and couldn’t get up. Ivan was diagnosed with post traumatic stress disorder.

Ivan’s is not an unusual story. Inevitably serious crimes take eighteen months to two years to come to a resolution. All this time, a prisoner on remand, innocent by definition until proven guilty, is incarcerated in a maximum security jail.

Greg Smith, the New South Wales Attorney General has made noises about addressing these bail laws. As people who know what real justice is about, Christians have a unique place to stand with and advocate for those who are marginalised by the current bail laws in NSW. Will this turn into a real good news story that sees Christians advocating for real justice and NSW refusing to lock people up until they are proven guilty?

Ernest Burgess    04 November 2011 3:10pm
Hi David, You have raised some very good points in this article, however I can recall a pastoral case that comes to mind where those who had been defrauded lost everything,(family home,business,car etc)and the offender who had been in remand got a 12 month good behaviour bond and did not have to pay any of the money back. So while it is right that Christian advocate for Justice, we know that often justice will not be found until the Lord's return (come Lord Jesus). You have also raise the issue of which hat does the chaplain/pastoral care worker wear, chaplaincy engaged in therapeutic conversations leading people to Christ and or advocating for social justice or both and if both to what extend are prison chaplains trained in criminal law? Especially when we have patient advocates in the hospital system and therefore I presume also in the prison system and if the prison do not have them should Christians be pushing for them?

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David Pettett    04 November 2011 10:15pm
Part of the recognized role of chaplaincy in NSW prisons is to advocate for the inmates. I don't think you have to be trained in criminal law to advocate for people who suffer injustice. But I think you've missed the point here Ernie. It's simply a question of whether you think our bail laws are just or not. I don't think they are just and I have seen the human suffering they are causing. I am therefore keen to see the law changed so that there is some justice brought back into how people who have been charged with a crime are treated. I believe the way the law operates at the moment is that innocent people are treated as guilty until they can prove their innocence. Do you think it is just that a person who is ultimately found to be not guilty should have been kept in a maximum security jail for 18 months, treated like a criminal, worn prison uniform, and locked in a cell 17 hours a day?

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Craig Schwarze    05 November 2011 9:35am
Hi David, this sounds like a dreadful situation, and very unjust. I hope the state government will look seriously at reform.

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Craig Schwarze    05 November 2011 9:36am
Ernest, I assume your friends could have started a civil action against the offender?

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Ernest Burgess    05 November 2011 10:57am
Craig, They did not have that as an option nor could they get any assistance from the victims of crime compensation. David,I understand your passion, however you said that an extra 1,300 went into remand overnight if that mean't that for the majority they could not engage in criminal activity that would cause others harm or themselves harm then so be it. It was and is in all cases that Ivan's and others legal representatives to argue more forcefully the bail conditions prior to him/them going to remand and I don't think magistrates make bail decisions lightly. I am also unsettled that part of the role of the chaplain in prison's is the advocacy role as it could add to that "them verses us" mentality as prison officers need to hear the gospel too. I reaffirm what I said in 1# regarding justice in this world be it re bail,global poverty or any type of institutionalised care. Being in remand for 18 months suggests to me that the courts are not handling cases quick enough and there is an old criminal law adage which states "justice delayed is justice denied" so it may not be the bail side of the process but the time taken for cases to heard.
I was once privileged to hear the prison chaplain to Ronald Briggs if you think our justice system is bad go and have a look at the English system.

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Ernest Burgess    05 November 2011 1:22pm
Hi David, While it maybe off the point.In regard to advocacy I think a reasonable understanding of the basic's of criminal law would be necessary for any advocacy role that chaplains may undertake and I think you should include it in CPE for chaplains to the prison system if you get the opportunity to implement it.

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David Pettett    05 November 2011 1:23pm
Ernie, what are you saying? England is worse than us, so don't complain?
I am complaining because keeping an innocent person (which all remainders are until proven guilty) in prison for 18 months or more until there is an outcome, is unjust. You're probably right that the solution rests with a legal system that deals with criminal cases faster and more efficiently. I have only spoken of how the change to bail laws has created an unjust situation that needs to be fixed.

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Ernest Burgess    05 November 2011 4:54pm
Hi David, before I write to my local member about unjust bail laws, I would need to have more evidence than just this blogs content. I would need to know for example. 1) If those waiting in remand and get a custodial sentence have their time in remand factored in, and if that is the case what compensation options are available to those found innocent? 2)what is the cost factor to keep a person in remand (per month per year) say in this case did it cost over $100,000 to keep Ivan in max security if so there may be a strong case for more magistrates on an economic basis alone given the high numbers in remand? 3)Is there a high suicide rate for those in remand and does it have a high proportion of those who would have been found innocent? 4)Is there a NSW prisons annual report and do their figures support any changes you are seeking?

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David Pettett    05 November 2011 7:36pm
@ Ernest #8. Ernie! Ernie! Ernie! "those found innocent"! Everybody is innocent until proven guilty. There is no compensation for having spent two years in gaol and then found not guilty. It is, "Thank you very much. You can go home now." The current cost of keeping a person on remand in NSW is about $120,000 per annum. Don't know the stats on suicide, but the death rate of those who are released from prison is 50% within two years after release! You can see the Corrective Services NSW reports on their web site. You may also find this paper by Nicholas Cowdery helpful:
http://news.csu.edu.au/uploads/documents/DPP speech notes 030810..pdf


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Ernest Burgess    05 November 2011 10:26pm
Hi David thank you for the extra info, yeah I am a bit thick at times as I find it hard to comprehend that a magistrate would place anybody in remand without looking at all the evidence and coming to the reasonable conclusion that a conviction would be the outcome. Nevertheless I will send you a copy of the reply I get from the local member.

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David Pettett    06 November 2011 5:47am
@Ernest #8. I didn't answer your question about getting time already served factored in if found guilty. Yes, they normally do but it is not automatic.

#10. Magistrates work within the law and rules of bail. It's not that they don't look at all the evidence of whether someone would get a prison sentence if found guilty. The bail laws tell them there have to be exceptional circumstances to grant bail. A former judge heads an organisation seeking changes to the bail laws.

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Grant Hayes    07 November 2011 11:30am
David @ #9
Don't know the stats on suicide, but the death rate of those who are released from prison is 50% within two years after release! You can see the Corrective Services NSW reports on their web site.


David, I've searched the Corrective Services website and haven't been able to locate the 50% statistic in the various reports that come up. Could you offer a more specific link?

And, just to confirm, are you saying that half of those released from prison in any given year are dead within two years?

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David Pettett    07 November 2011 7:45pm
@Grant.

Justice Action reports that, "Almost one quarter of ex-prisoners die within a year of release." Hopefully that figure drops off in the second year after release and so my figures at #12 may be exaggerated.

You can find this report at http://justiceaction.org.au/cms/images/stories/CmpgnPDFs/jareport_141011.pdf

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Grant Hayes    08 November 2011 9:04am
David,

Many thanks for the feedback. I followed the link to Justice Action and found the "almost one quarter" remark. It would be good to know the source of the "horrific statistics" on which the remark is based.

I did a quick web search of Australian sites using the terms "deaths after custody" and "statistics", and could find only the Justice Action reference you cite and a GetUp Campaign suggestion, which asserts that "more than 50% of ex-prisoners to suicide within 1 year of leaving jail"
http://suggest.getup.org.au/forums/60819-getup-campaign-suggestions/suggestions/2044051-deaths-after-custody-5-00pm-abc-reg-l-radio-ne?ref=title

I would suggest that the "statistics" being passed around on this issue have been garbled. It would be better if original sources were cited, rather than the possibly distorted factoids of net polemic.

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David Pettett    11 November 2011 4:11pm
The stats from Justice Action do appear to be an exaggeration. A study by the Burnet Institute, believed to be the first national estimates of mortality among ex-prisoners in Australia, aimed to estimate the number of deaths among those released from prison in Australia in 2007/08, within four weeks and one year of release from custody.

The study estimated that among those released from prison in 2007/08, between 449 (95%CI:380-527) and 472 (95%CI: 438-507) died within one year of release, with between 68 (95%CI: 56-82)and 138 (95%CI: 101-183) dying within four weeks of release.

In their discussion the authors say, “The annual number of deaths among recently released prisoners in Australia is orders of magnitude greater than the annual number of deaths in custody, highlighting the extreme vulnerability of this population once they return to the community.”

This research was published in the Medical Journal of Australia. You can find an electronic copy at:
http://www.mja.com.au/public/issues/195_02_180711/kin10879_fm.html

And at:

http://www.burnet.edu.au/freestyler/gui/media/Kinner et al in press-3.pdf


The MJA Editor also comments on the Kinner research in the same edition:
http://www.mja.com.au/public/issues/195_02_180711/choice_180711_fm.html

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