Canberra prosecutors for the first time triggered controversial new powers allowing a man accused of domestic violence offences to be temporarily locked up as they decided whether to seek a review of a magistrate's decision to grant him bail.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
The move reignited strong condemnation from defence lawyers, who have argued the bail review legislation was unnecessary and at odds with human rights, as they expressed dismay it had been used one day after it came into effect.
Alleged offender Darren John West was sent back to the cells moments after he was told he would be released in the ACT Magistrates Court on Tuesday morning.
He faced court charged with reckless threat to kill, assault, attempted choking, possessing an offensive weapon with intent and assault occasioning actual bodily harm arising from an alleged incident involving his partner. He did not enter pleas.
His Aboriginal Legal Service defence lawyer launched an application for bail, but it was opposed by prosecutors on grounds he was likely to reoffend or endanger the woman's safety.
Magistrate Robert Cook granted bail on strict conditions, prompting the prosecutor to swiftly signal a review of the court's decision under the new legislation.
The court heard the initial application stayed the court's bail decision and meant the Director of Public Prosecutions had two hours to provide West's lawyers with a written request if they wanted the review to go ahead in the higher court.
The DPP decided within that two-hour period not to pursue the application, clearing the path for West to be released from custody on the conditions initially ordered by the magistrate.
ACT Law Society president Sarah Avery said she was dismayed the powers had been used so quickly as lawyers were assured the powers would be exercised "sparingly and only in exceptional circumstances".
"This power has just come into force. We are gravely concerned by the lack of appreciation shown for the exceptional nature of the power that has been given to the DPP."
The bail review laws were passed in the Legislative Assembly in August and came into effect on Monday.
The ACT government insisted the laws, which were watered down from an original proposal allowing individuals to be held for a far longer period, struck the right balance and ensured the person's rights were limited in the least restrictive way possible.
Under the legislation, prosecutors can have accused individuals locked up for 48 hours while they seek an immediate review of a magistrate's decision to grant bail, if they disagree, in cases involving allegations that are serious or linked to family violence.
The bail review power is intended for use in exceptional circumstances, where prosecutors fear defendants accused of serious or family violence offences who have been granted bail still pose a risk to the community.
After indicating they disagree with the magistrate's decision, prosecutors can have an accused person detained for up to two days until the case comes before an ACT Supreme Court judge for review.
"We understand that during today's oral application by the DPP to use the bail review power, no reference was made as to what 'exceptional circumstances' or 'public interest factors' caused the prosecutor to make the application in the case," Ms Avery said.
She understood the defendant was held in custody more than two hours after Mr Cook initially granted bail.
ACT Bar Association president Ken Archer said the court proceedings showed the new legislation was problematic.
"Undoubtedly decisions are made in good faith, but the reality is the decision's hastily made and the person's kept in custody longer than they should be. You can sniff at two hours if it's not you."
