As a criminal lawyer spending time everyday in the criminal justice system in NSW, there is one subject that continues to both be raised in the media and raises the ire of public opinion and that is bail.

How do some people get bail having been on bail at the time of allegedly committing serious offences? How do some people get granted bail despite a history of non attendances at court? How do some people get granted bail despite having lengthy criminal records?

These are all very legitimate questions for the public to ask, but it is another aspect of the bail process that I believe has the potential to be extremely unfair to those seeking bail.

Once a person has been convicted of a matter in the Local Court and given a fulltime custodial sentence, if that person wishes to appeal the severity of that sentence to the District Court being of the opinion that the crime did not deserve fulltime gaol, they will in nearly each case have to go back before the same Magistrate who sentenced them, to seek bail until their appeal is heard.

Once a person is sentenced to fulltime custody they are usually taken away from the courtroom by Department of Corrective Services officers and placed in a cell, awaiting transport to a gaol.

If they appeal the severity of their sentence and apply for bail between that day and when their appeal can be heard in the District Court, and this time period can be a matter of weeks and sometimes months, it will be the sentencing Magistrate determining whether they are set free in that interim period.

Now in many cases where a fulltime period of imprisonment has been imposed it is a very close run thing, and on appeal it is not uncommon for appeals to be upheld and a sentence of less severity than fulltime custody imposed by the District Court Judge.

So the determination of bail for the period between when the original sentence is imposed and the appeal heard may be the determination as to whether a defendant spends anytime in fulltime custody, or not.

As I said earlier this determination is usually made by the Magistrate who imposed the period of fulltime custody in the first place. Now one would think the sentencing Magistrate would have therefore already made up their mind on the justification of the defendant walking free that day from court upon conviction.

Even if the Magistrate was disciplined enough to totally disregard their earlier sentencing of the defendant and focus solely on the legislative parameters of the Bail Act and the merits of the bail application before them, two other issues arise.

Firstly, as human beings it is our nature to be bias to some degree. Now I am not going to discuss conscious bias because I believe very very few Magistrates would allow such bias to impact on their decision making.

However, unconscious bias occurs everyday in society. Unconscious bias is when a person’s decision-making is influenced by automatic evaluations, without the person being aware of it. Having just sentenced a person to fulltime custody I believe a sentencing Magistrate is susceptible to unconscious bias impacting on their bail determination to some degree.

Secondly, it simply isn’t a good look in my opinion for the sentencing Magistrate to be making the bail determination. The old adage that justice must not only be done but must be seen to be done fits perfectly in this situation.

I have had a number of client’s over the years refused bail in this situation who say to me words to the effect of “I was never going to get bail. He /she was the one who locked me up”.

Now both issues raised by me can be negated if the bail application is put before another Magistrate. Most cases in NSW would be heard in larger court complexes where more than one Magistrate sits each day. It would be little trouble to put the bail application before a different Magistrate in such circumstances.

Now in cases where only one Magistrate is available, in regional or some smaller suburban areas, there is little option but to put it back before the same magistrate. But where an option is available, I believe  in the interest of justice, such an opportunity should be grabbed.