Guest post: Zeev Vinokurov Victorian bail reforms undermine human rights and won’t prevent future massacres

Make no mistake: Victoria’s new law bail laws undermine your human rights and will do nothing to repeat incidents like the Bourke St massacre. They undermine your right to be presumed innocent before proven guilty at trial. Police can usually only apply to lock you up if they can prove that you are too dangerous to release on bail before trial. Now you will be presumed to be too dangerous to release if you are suspected of various kinds of violent offences, unless you can show otherwise. But this treats suspects as guilty before proven innocent. It means innocents could be imprisoned before trial for crimes they did not commit. This is profoundly useless and wrong.

Famously, Lindy and Michael Chamberlain were wrongly found guilty of murdering their baby daughter, Azaria, in 1980. After Lindy spent 4 years in prison, they were vindicated after their daughter’s jacket was in a dingo lair. They are not alone—every year 62,400 Australians have the charges against them dropped and 23,400 Australians are acquitted at trial. Innocent Australians like you could land in jail if bail laws are tightened.

Jail is no place for innocent people, or for that matter low-level offenders. People in jail lose their job and valuable skills. Their ties to friends, family and the community weaken. They socialise with criminals and could exposed to drugs. They can emerge from jail more dangerous than ever. That’s why bail should only be refused if police prove that you are a danger to the community. The evidence of guilt must be strong, the crime must be serious, and you must have a serious criminal record or be a flight risk. Jailing people who don’t meet that standard could increase crime.

As for the Bourke Street killer whose case prompted these reforms, it’s difficult to see how anyone could have predicted what he would go on to do after being bailed. He was no more than an alleged small-time crook charged with numerous dangerous driving charges, breaking a car windscreen, an assault, and car theft. Imprisoning more alleged small-time crooks because of the miniscule chance that one of them might commit an act of mass violence is senseless. Further, these reforms could result in imprisoning people who commit crimes of passion, for example, who are not obvious dangers to the public after they have calmed down and separated from the victim.

Advocates for bail restrictions, and for that matter mandatory sentences, also overlook that jail can prevent people from rehabilitating. For example, young Sudanese-Australian offenders have successfully rehabilitated and found work in the community. Further, the Victorian Ombudsman has found that rehabilitation programs makes reoffending less likely. Moreover, more than half of prisoners do not reoffend after being released. Not all offenders are lost causes, but these reforms unjustly treat them all alike.

Bail restrictions or mandatory sentences also don’t make sense because they don’t deter crime. That’s because the odds of being caught are very low, and those who commit crimes of passion are unlikely to care. Victoria’s prison population increased by 66.9% after lengthier sentences and parole restrictions were imposed in the last decade, yet crime still increased. Canada and Sweden’s crime rates are far lower than the US, which has mandatory sentencing and the highest incarceration rate in the world. One study indicates that several American States have seen crime rates drop despite reducing their prison populations. Prisons exist to house people who cannot be safely released into the public, not to deter crime.

The best way to fight crime is to increase employment. According to the Australian Bureau of Statistics, one-quarter of Australians aged 15-24 who are not undergoing a full-time educational course are unemployed. That’s about 359,700 people. Studies repeatedly show that career criminals are far more likely to be unemployed, undereducated, and disadvantaged. That’s because the black market lets them earn money without a proper job. Indeed, two Apex Gang members recently admitted that they committed crimes to earn money. Promoting legal employment is the solution.

Cutting red tape that prevents businesses from hiring unskilled employees will help. For example, employers must pay unskilled people the same minimum wage even if they have no prior experience. This makes hiring a skilled worker even more attractive than hiring an unskilled worker. Further, employers are often legally required to hire workers who have completed training courses because of licensing schemes. As of 2008, more than 800 licensing schemes for manual trades existed nation-wide, and 400 schemes were in Victoria. Uber had to wage a legal battle just to operate in Australia and retain thousands of drivers, including veterans.  Getting rid of these legal barriers to employment will reduce crime.

The presumption of bail and discretionary sentencing must be retained to protect innocent people and low-level offenders from unjust, unnecessary, and excessive punishment. Crime would be reduced, however, if we cut red tape, and empower young people to get employment.

Vladimir “Zeev” Vinokurov is a solicitor.

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38 Responses to Guest post: Zeev Vinokurov Victorian bail reforms undermine human rights and won’t prevent future massacres

  1. Whalehunt Fun says:

    Bollocks. Crime would be reduced however if we executed criminals for a first offence. Second offences would be fewer and I would be safer. Nothing, and I mean nothing, is more important than mysafety. Not yoursafety and not yourfreedom or privacy. So until the scum are processed, suck it up.

  2. Rafe says:

    So many things come back to employment and that comes back to deregulation and the stimulis of reduced company tax. Plus the work ethic.

  3. Rafe says:

    In principle convicted crims who are not dangerous should be out of jail working to compensate their victims. In fact there are probably a lot of prisoners who are not employable especially the intellectually/mentally handicapped who were decanted out of the mental hospitals in the 1980s.

  4. Whalehunt is spot on!

    The above rambling defence of letting crooks out aside, Victoria has a most unhappy record of bailees/parolees reoffending in a most brutal manner.

  5. James Gibson says:

    Take sentencing away from corrupt judges, give it to juries.

    Juries already decide on the guilt of an offender. They should be allowed to decide the offender’s sentence as well. It’s more democratic and would get outcomes more in line with community expectations. Mandatory sentences don’t work and can cause unpalatable situations where people who did very little wrong get a manifestly excessive sentence.

  6. Nerblnob says:

    I agree with most of this Zeev, but can you be more specific about this employment “in the community”?

    How does that differ from just “employment”?

  7. rickw says:

    The problem here is that we are no longer operating a “normal” society.

    Small time crooks did not normally go on to murder people, until islam.

    Now days there is virtually a 100% correlation between being a small time crook, a muslim and being a future murderer.

    You can throw all the previous experiences from western countries in the bin, the game has changed profoundly.

  8. Baldrick says:

    What a load of tosh.

    Laws against murder still don’t prevent some people from killing another. Oh and if Police do apply to have you locked up before your day in Court, that decision still needs to be approved by a Court.

    And spare me the ‘human rights’ of an alleged offender. My thoughts will go to the victims.

  9. TheDAwg says:

    Garbage from the sort of garbage in the system that needs cleaned out.

    Jail IS the place for offenders of all types and kinds – even solicitors!

    Fear of jail is key, not continued “freedom” as you would have it. Knowing that if you break law “x” will result in jail time, shows acceptance of the result of their crimes. Thereby reducing court time and reducing the need for the involvement of solicitors!

  10. Bruce says:

    Persons suspected of violent crimes should be turned loose under the presumption of innocence doctrine. Let all these people out pending trial, all of them- what a top idea.

  11. Combine Dave says:

    Now you will be presumed to be too dangerous to release if you are suspected of various kinds of violent offences, unless you can show otherwise

    Wait so you just need to demonstrate that you don’t have a history of rape/assualt etc whatever it is you are accused of this time and you can wait you trial time in the community on bail like normal?

    But the people with a history of violent offending will be in the lockup pending trial (time which will no doubt be considered already served for when they are sentenced)?

    This actually seems pretty good. Well done Dan the man!

    PS: The Chamberlains are a pretty bad example, I mean they were found guilty over and over again and only now after the media narrative of innocence had become to grow (and some evidence was dismissed on technicalities) were the convictions overturned.

    Humans were involved in disappearance says lead Azaria detective

    Mr Marchant said there was no evidence of damage or canine incisions on the jacket he examined in Mrs Chamberlain’s presence.

    “(There were) no rips, no tears, no precise dingo scissors teeth cuts, only some stitching that had become loose with the loops intact,” he said.

    “Of particular interest was the single button at the neck had the thread passing through the button hole. The button had become detached though remained adhering to the buttonhole.

    “The jacket was inside out when the package was opened for the first time at Forensic Section, again in her presence. In a nutshell, the jacket was inside out with a button stuck to the button hole …

    “There was no damage consistent with a canine attack and it would appear the jacket was removed and turned inside out while buttoned up.”

    Mrs Chamberlain was released in 1986 after the jacket was found, partially buried. Mr Marchant said “a few rough experiments” carried out by late forensics experts Joy Kuhl and Brian Nieman showed the jacket could not be removed from a doll by pulling it over the head and turning it inside out.

    But that could be done if the doll had no head.

    “So what happened?” Mr Marchant asked. “Don’t know. Was not there. Pure conjecture.”

    “But perhaps the dingo while running off with the child, stopped, undid the jacket, took it off, buttoned it up again, turned it inside out, buried it and then made off … with the child.”

    He said the first coroner, the late Dinny Barret, found there had been human involvement in the disappearance of Azaria.

  12. Combine Dave says:

    Persons suspected of violent crimes should be turned loose under the presumption of innocence doctrine. Let all these people out pending trial, all of them- what a top idea.

    I’d suggest we temporarily billet them in the homes of solicitors and activist lawyers 😛

  13. A Lurker says:

    That article is simplistic nonsense.

    The way to reduce crime must begin with the families and the schools.

    The reason why we suffer so much crime is because the traditional family unit has been deliberately broken down by the State. If you want to empower young people, then schools and families must be first empowered to be able to apply punishment judiciously.

    Bring back corporal punishment in the schools.
    End the Rights mentality in the schools.
    Kids have to learn – from an early age – that real consequences arise from rule breaking.
    A couple of firm whacks on the bum at a tender age is when that lesson is best learned and not forgotten.

  14. Richard says:

    Moreover, more than half of prisoners do not reoffend after being released.

    That’s a stretch, your link discusses the percentage returning to prison within two years of being release. Let’s see doesn’t included those who’s crimes haven’t been caught, those under investigation, those charged and on bail (very slow justice system), …

  15. sfw says:

    Zeev, you sound just like all the other compassionate do gooders, you want things but you personally will never bear the cost of your wants.

    Bail has always been on a show cause basis for serious offences, the problem is the courts and bail justices often bailed people who should have been remanded, if the bail has been made harder to get it is because of those who bailed when it wasn’t appropriate, they of course don’t bear the cost of their decisions other people do.

    As for the Apex members wanting money well of course they wanted money and I’m sure they were in receipt of government benefits, but they wanted more money and probably couldn’t get work because of racism, so they had no choice but to go on violent rampages. Really Zeev you must truly think that crooks tell the truth and nothing but the truth when in court or when with their lawyers.

    Funny how the US crime rate dropped as more people were imprisoned, the lefties took the dropping crime rate as evidence that too many people were being locked up, funny how we see what we want to see.

  16. Woolfe says:

    Moreover, more than half of prisoners do not reoffend after being released.

    So half do re offend. How do you know which will re offend, can’t use any profiling that would be raaaaaacist

  17. sfw says:

    Hey Lurker

    You’re onto something with the corporal punishment, it should also be used as a tool in prisons. I think there is nothing crueler than to isolate someone in prison often for long periods of time as a punishment. If I was in prison for a long period and was given the chance to substantially reduce my sentence in exchange for a flogging, I reckon I’d take it. I’m serious, I reckon a lot of long termers would take the option too, and it would be a strong deterrent to re offending, so you have an option that is cheaper and would be preferred by the offenders but can’t be used because it’s cruel, I don’t get it.

  18. H B Bear says:

    Own goal.

  19. Tim Neilson says:

    Advocates for bail restrictions, and for that matter mandatory sentences, also overlook that jail can prevent people from rehabilitating. … Moreover, more than half of prisoners do not reoffend after being released.

    Hmm, not sure that this stacks up.
    Anyway, aren’t suspects held at the Remand Centre, not an actual jail? I’m sure it’s still not a pleasant place, but it’s run differently to a prison precisely because it’s for suspects, not convicts.

    One study indicates that several American States have seen crime rates drop despite reducing their prison populations.

    Methinks there’s confusion between cause and effect. Rudy Giuliani’s “zero tolerance” approach drastically reduced the number of crimes in New York, and a lower prison population was the effect – not the cause.

    Zeev, I’m actually sympathetic to what you’re saying. It does impose what’s essentially a punishment before any actual conviction.But if it operates the way Combine Dave summarises it above I’m with him.If someone is convicted of violent offences, then future problems with bail should be regarded just as a natural consequence of the proved wrongdoing.

  20. Captain Bastard says:

    Sure Zev. If you feel that strongly about it, you could provide a personal surety for your clients.

    You won’t of course. Because despite all your virtue signalling, you know what would happen.

  21. Luke says:

    I see an article full of anecdotes passing as data and non sequiturs.

    The reversal of onus is only in limited cases and not ALL cases. It is not a given but rather a reversible presumption. People caught red handed (with or without previous criminal histories) are not innocent. BTW A court never says you are innocent, just guilty or not guilty.

    WTF any of this has to do with the near 40 year old case of the Chamberlains I do not know.

    Trying stop people from ever becoming criminals is a good thing. But the only real success we have with stopping the criminally inclined is by denying them the opportunity.

    I love how people talk about human rights for criminals but seem to completely forget that in reality the biggest threat to people’s human rights are from criminals. Human rights don’t stop you being bashed in your own home from home invaders. They don’t prevent your daughter being sexually assaulted on her way home and the don’t rescue your sun from being murdered by some amped-up thug on a bender. But funnily enough they will be evoked and used to help of those perpetrators avoid the courts, conviction or punishment.

    Stop excusing violent serial offenders on the basis that some girl scout is going to be lock-up for life on a trumped up charge of jay walking.

    Also, if punishment doesn’t work on criminals then why are they so enthusiastic about employing it on their own for breaches of their codes?

  22. notafan says:

    Apex members wanting money

    Apex members are typically leaving school at around age 14.

    They make themselves unemployable and then blame everyone else.

    What about the Sudanese and Somalian youth that stay as school, work hard and get good jobs?

    Because those also exist.

  23. Robbo says:

    Trust a lawyer to come up with an argument that things are going along so well here we don’t need to tighten up police powers. Given what we regularly see here in Victoria the most important thing needed is to getting back to allowing our police to do their job rather than being ordered to stand back and let lawbreakers run riot. A new Chief Commissioner would be a good start. The we need a clean out of the judiciary with their replacements clearly understanding that their primary role is to protect the community and not be a case worker for the criminals. Wasn’t it Shakespeare who came up with the famous line, “kill all the lawyers”? Sounds fair enough to me because so many of them just love crime and criminals because it provides them with a huge income.

  24. Empire GTHO Phase III says:

    People caught red handed (with or without previous criminal histories) are not innocent. BTW A court never says you are innocent, just guilty or not guilty.

    Bollocks. An accused is presumed innocent until a guilty plea is made or a jury returns a guilty verdict, notwithstanding the trend to reversal of onus in specific legislation.

    The purpose of remand is to protect the citizenry from those accused of violent and serious crime that would likely reoffend before trial or interfere in their own trial. The issue we face is leftist SJW lawyers have been appointed to the bench, people with no respect for our legal traditions who are incapable of administering justice.

    Zeev’s position seems to be that remand is never appropriate because an innocent might be incarcerated. That doesn’t acccord with history or the fundamental function of state. That said, if the left ramps up show trials before they collapse, there could be a few of us here learning about the joys of remand.

    Be careful what you wish for.

  25. jupes says:

    Trust a lawyer to come up with an argument that things are going along so well here we don’t need to tighten up police powers.

    Lawyers exist to create work for lawyers.

    Zeev is just doing his bit for the cartel.

  26. jupes says:

    An accused is presumed innocent until a guilty plea is made or a jury returns a guilty verdict, notwithstanding the trend to reversal of onus in specific legislation.

    Legally yes. In reality no.

    Does anyone actually think the Bourke Street murderer is innocent?

  27. jupes says:

    Advocates for bail restrictions, and for that matter mandatory sentences, also overlook that jail can prevent people from rehabilitating. … Moreover, more than half of prisoners do not reoffend after being released.

    Yes all those poor innocent Muslims in Goulburn Jail are well on their way to being rehabilitated.

    You idiot.

  28. Tator says:

    For those who are not counting, try these names for some who should have been remanded in custody.
    Adrian Bayley
    David Bradford
    James Gargasoulas
    Greg Anderson
    Haron Man Monis
    Sean Price
    John Coombes
    David Clifford
    Leigh Robinson
    William Watkins
    Francis McCullagh
    Kevin Byrne
    Gareth Buck
    All committed murder whilst on bail.
    And what about the victims in serious offences. A court grants bail against prosecutions arguing against it and the victims feel like their rights have been violated yet again and are being abandoned by the legal system. There is a Declaration of the Rights of the Victims in SA. This must be given priority over the so called rights of the offender as everything else in the court is biased towards the offenders rights.
    Incarcerating a possibly innocent man over protecting the lives of others is a tough balancing act. But one has the ability to be reversed, the other hasn’t. In addition, with the complexity of prosecuting a serious offence in today’s legal system, the odds of getting it wrong is minimal as most serious crime cases taken to trial are normally so strong as any doubt on the prospect of a conviction normally means the DPP won’t proceed with it. It was quite disheartening when I was working at State Committal and seeing the number of files come back from the DPP as withdrawn files after all the work done by the investigators and police prosecutors to get the file committed to the higher courts.
    In other words, the criminal justice system is well and truly broken and needs drastic reform, it is far too complex and procedurally rigid to the extent that it is legal rigor mortis most of the time. Considering that files can be dismissed purely on a typographical error on an administrative form without any further comeback is a joke.

  29. jupes says:

    In other words, the criminal justice system is well and truly broken and needs drastic reform, it is far too complex and procedurally rigid to the extent that it is legal rigor mortis most of the time.

    Indeed.

    Consider the case of the Bourke Street murderer. Everyone knows he did it. In a just society he would have been tried and executed within days.

    Instead we get months of “investigation” followed by a long trial costing millions of dollars.

    Can anyone guess where that money goes?

  30. ned says:

    The principle of lex talionis—eye for an eye

    Who should receive restitution from the offender, the victim or the State?

    The criminal does not owe a “debt to society.” He owes a debt to his victim.

    The Mosaic penalties were flogging, restitution, and execution.

    There was no prison system

    A Lurker:
    “The way to reduce crime must begin with the families”

    “The reason why we suffer so much crime is because the traditional family unit has been deliberately broken down by the State.”

    Nice and true.

  31. . says:

    The Mosaic penalties were flogging, restitution, and execution.

    Oh great.

  32. . says:

    Considering that files can be dismissed purely on a typographical error on an administrative form without any further comeback is a joke.

    How come I got “validly” fined with a wrong name on the ticket?

  33. . says:

    In addition, with the complexity of prosecuting a serious offence in today’s legal system, the odds of getting it wrong is minimal as most serious crime cases taken to trial are normally so strong as any doubt on the prospect of a conviction normally means the DPP won’t proceed with it.

    Are you serious? In NSW we have majority jury verdicts and the double jeopardy rule is abused or ignored.

  34. Tator says:

    Dot,
    An expiation notice is not a court document, it is a Police document, what I am discussing are Informations and Complaints which lay out the charges for the court. Different scenarios, I have seen expiation notices be reissued several times due to errors on the form. Until you elect to go to court and the Police Prosecutor lays a Complaint (its the name of the court document) and begins a court case, errors are correctable without sanction. Once the complaint is laid, that is when everything has to perfectly correct without any errors.
    Majority verdicts are commonplace, as there is actually no requirement to have an unanimous verdict as there are no capital punishments involved and plenty of avenues of appeal.
    Having worked in the major indictable system in SA, even some cases which the investigators are sure are slam dunks are filed by the DPP as unreasonable prospect of conviction. You would be surprised by the percentage of cases that don’t go to trial compared to those that do and it is a significant number of them.
    As for double jeopardy, are you discussing when a court trial finds a defendant not guilty and the prosecution relays the same charges or when cases are dismissed without prejudice and relaid at a later time which is actually completely legal and not double jeopardy. The only time a case cannot be relaid is when the case is dismissed WITH prejudice and then double jeopardy applies.
    Prosecutors tendering no evidence or tendering a white certificate allows the prosecution to withdraw the charges and relay them at a later date if further evidence arises. Another possibility is an appeal declaring a mistrial, this is not a not guilty verdict and the prosecution is entitled to reprosecute which is the norm. This is not the same as a trial finding the defendant not guilty. So unless NSW has changed the procedural rules on double jeopardy, as the double jeopardy rule is one of the huge biases in the defendants favour, it would more likely be one of the above situations. As I haven’t worked in the NSW legal system, I really cannot comment on any double jeopardy exemptions or violations that have occurred there.

  35. . says:

    As for double jeopardy, are you discussing when a court trial finds a defendant not guilty and the prosecution relays the same charges

    Yes. So what if it is legal. It is a right we’re meant to have. Anyway, the rules are much more strict otherwise in the US. Besides murder, they have lower violent crime rates than us. It doesn’t make us or them unsafe.

    Majority verdicts are commonplace, as there is actually no requirement to have an unanimous verdict as there are no capital punishments involved and plenty of avenues of appeal.

    I don’t care if it is commonplace. Too many of our ancestors died for a right to unanimous verdicts in the criminal system.

  36. Tel says:

    Incarcerating a possibly innocent man over protecting the lives of others is a tough balancing act. But one has the ability to be reversed, the other hasn’t.

    Given the number of posters here pushing for summary execution without either evidence or trial, I’d be saying don’t count on that ability to get a reversal.

    For what it’s worth, I have a plan to dob all the rest of you in on trumped up charges ASAP, which is just a self defense measure given the likelihood of at least one of you attempting to get me executed the same way unless I make a preemptive. There’s no honour among comrades while even one counterrevolutionary remains at large… hope you understand it’s nothing personal.

    As G W Bush demonstrated, retaliation against an arbitrary (and completely wrong) target is considered perfectly acceptable behavior during times of hardship.

  37. Combine Dave says:

    Majority verdicts are commonplace, as there is actually no requirement to have an unanimous verdict as there are no capital punishments involved and plenty of avenues of appeal.

    I don’t care if it is commonplace. Too many of our ancestors died for a right to unanimous verdicts in the criminal system

    A Balkanised society with juries split on ethnic lines is no place for an unanimous jury system.

  38. Combine Dave says:

    Given the number of posters here pushing for summary execution without either evidence or trial, I’d be saying don’t count on that ability to get a reversal.

    If all the evidence points to one who after being executed is found innocent, there’s no shame in compensating the family before moving onto hanging the guilty party.

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