Bail, reverse presumptions and family violence: Examining the implications of a presumption against bail in the family violence jurisdiction

Abstract

There has been a traditional presumption in favour of granting bail and this has been premised on the basis that defendant's are presumed innocent until proven guilty and have a right to be released from detention unless just cause exists to continue that detention. Over time that presumption has been incrementally eroded by legislation imposing a reversal of the general presumption in favour of bail and this has occurred most often in reaction to high profile criminal offending. These legislative amendments have mainly affected those accused of serious offending (such a murder, treason and espionage) and recidivist violent and property offenders.

There is a question now however about whether a subtle revers presumption is operative in the family violence jurisdiction for all defendants charged with "family violence". This query arises as a result of recent changes to the bail procedures in that court. Is a reverse presumption is operative the follow up question is how that sits with a defendant's NZBORA rights and how appropriate it is that these changes have not come about via legislative amendment.

This paper explores the history of reverse presumptions in New Zealand's bail legislation and examines the changes to the family violence procedure. The conclusion reached is that it is arguable the Porirua Court is approaching bail in the family violence jurisdiction from a presumption against bail and that, in the circumstance, absent full NZBORA vetting that approach is inappropriate. It is further opined that, is this is the direction the pending amendments to the Bail Act 2000 are heading, it is likely NZBORA betting will confirm that a blanket reverse bail presumption for offending categorised as "family violence" is an unjustified limitation on a defendant's NZBORA rights.