Police are increasingly relying on pre-written forms instead of showing up to argue against the release of accused criminals, something barristers have criticised as an "unacceptable cheapening" of the value of liberty.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
And the forms have copped criticism from a number of ACT magistrates, who have repeatedly told prosecutors they give untested claims made in the documents little weight, potentially weakening efforts to prevent an alleged offender's release.
The recent reliance on the forms is changing a long-standing practice of police physically showing up to court for opposed bail hearings.
That allows for police evidence to be challenged and tested by the defence.
The purpose of the forms is to reduce the considerable amount of time that police sit waiting in ACT courts to give evidence, often taking many hours out of their day, sometimes on the back of lengthy overnight shifts.
Police say they are still showing up to bail hearings for family violence and other more serious matters, and say they can be requested for cross-examination at short notice.
Defence lawyers have been critical of the use of forms, saying they do not allow for the cross-examination of police on the important issue of bail.
Many have either strongly opposed such forms being tendered into evidence, or told courts they can give them almost no weight.
Those criticisms have been echoed by some magistrates recently. A number have refused to accept them into evidence.
The ACT Bar Association said on Sunday that the deprivation of liberty, one of the most serious actions a state can take against a citizen, must be treated with greater care.
President Shane Gill said immediate testing was needed when the prosecution asserted that an individual should be held in custody when their guilt or innocence had not yet been proven.
The shift to bail forms, he said, did not allow that to take place.
"It is a position that cannot be justified on the basis of resources or efficiency," he said.
"A person's liberty is too important to be treated in such a manner."
Common practice elsewhere
But Director of Public Prosecutions Jon White said the practice was commonplace in other jurisdictions, and the ACT had made the shift to stop police wasting hours of their time waiting to give evidence.
Mr White said the forms are appropriate to use in cases where police witnesses were not "genuinely needed for specific meaningful cross examination".
He said police were always available at short-notice for cross-examination, and it was still practice to attend court to give evidence in family violence cases or other serious matters.
"Experience has shown that rarely has the substance of any allegations been meaningfully challenged through cross-examination of knowledge held by the actual police officer sitting in the witness box in a bail application," he said.
"Of course, no one witness can have complete firsthand knowledge of all relevant matters.
"It is standard practice in other jurisdictions for material relevant to bail to be placed before the court in written form. This is appropriate given the function of the bail hearing."
Legal Aid ACT chief executive John Boersig said his lawyers generally welcomed any move to boost the efficiency of the Magistrates Court.
Dr Boersig said in circumstances where the evidence was not contested, there was no concern.
But he said the lack of a police witness at court became problematic when the forms contained hearsay evidence.
"Mostly it's not a problem, and we're managing it in terms of giving submissions, and the court is giving the weight that may or may not be appropriate to particular circumstances," he said.
