Nationally, more than a fifth of prisoners are unsentenced at any one time. While the total number of prisoners across Australia has increased by about 20 per cent since 1995, remandee numbers have increased by between 50 per cent and 270 per cent depending upon the jurisdiction.
In both SA and Victoria remand rates are associated with a small range of offences but variations in the numbers of people remanded in custody result from the different characteristics of defendants and different practices and policies of remand decision-makers, according to UniSA researchers Sue King from the School of Social Work and Social Policy and Professor Rick Sarre from the School of Commerce.
"In examining the reasons behind the different remand figures for the two states, four factors stood out - differences in bail legislation upon which decision-makers rely to guide their decisions; accountability of bail authorities and their review of remand decisions; agency operated procedures; and the use of `therapeutic' justice models and court resources," Professor Sarre said.
SA's legislation is significantly different to the Victorian laws. The Victorian Bail Act distinguishes between grounds for remand in custody and the information used in determining whether or not those grounds exist. The Act also puts the onus on defendants in certain circumstances to argue their case for being granted bail but provides for immediate review of police bail decisions and extensive use of intermediaries known as bail justices. In contrast, the South Australian Act is less constraining, resulting in interpretations that enable the use of remand in custody for non-traditional reasons such as arresting and holding `usual suspects' in the targeting and investigation of serious crime.
Victoria's remand decisions undergo a rigorous review process, which includes greater accountability for those seeking remand when compared with SA's telephone review process. Victoria also requires those seeking to remand prisoners in custody to attend the bail justice hearing and to give sworn evidence in any subsequent court hearing. This is closely scrutinised by a court assessing the risk of a defendant not complying with bail. And while the percentage of contested bail applications is about 40 per cent in both states, Victoria exercises an increased level of scrutiny, with the mean time for a hearing being 18 minutes, compared with five minutes in SA.
Bail decision-makers operate within policy and cultural constraints of their own agencies, particularly within the police. Here again both states differ, with custodial remand in SA more closely linked to operational policies, such as encouraging arrest even where a summons might be appropriate, or using custodial remand as a crime reduction strategy under the heading of `intelligence-led policing'.
In studies of `therapeutic' justice and the deployment of court resources to pursue therapeutic ends, researchers have identified a trend in Victoria towards changed perceptions of judicial roles that have not been identified in SA. Some Victorian magistrates have adopted the `therapeutic' justice model, partly in response to the changing characteristics of defendants and their needs. This has enabled Victorian courts to attract a greater range of resources to help defendants with alternatives to being remanded in custody while awaiting trial.
In summary, Victoria's lower remand rates can be sourced to enhanced police accountability for bail refusal, improved feedback between courts and police, higher transaction costs for custodial remand and longer bail hearings.
Based on these findings, the researchers outlined three broad goals to be achieved in bail decision-making - to ensure the integrity and credibility of the justice system, to protect the community, and to assist in the care and protection of the rights of defendants.
"Over the last 40 years tension between these goals has seen a move away from ensuring the integrity and credibility of the justice system as the main outcome to community protection being elevated above the other goals," King said.
"Measuring the extent to which current bail and remand practices achieve these goals has been limited by poor availability of data on issues such as failure to appear, reasons for failing to appear, bail offences, and interfering with witnesses and victims," she said.
Crucial to good practice in bail and remand is resources, the researchers concluded. Bail decision-making takes time and requires reliable information and good support services that must be resourced if they are to be effectively maintained.
"This includes programs that help the accused while on bail, along with communication between all parties to ensure that appropriate information is made available when needed. In addition, reliable data must be collected and be accessible, both within and between jurisdictions, using common terms and collection processes that allow data to be compared and trends determined," Professor Sarre said.
The study on factors that influence remand in custody was undertaken for the Criminology Research Council by chief researchers Professor Sarre, Sue King and David Bamford from Flinders University Law School.
