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Magistrates and judges cannot be expected to gaze into a crystal ball when granting bail.The answer to that question is that you can't lock people away simply because what they say is offensive.If the magistrate's decision had been so outside the realm of judicial discretion then it could have been appealed by the police or DPP.The new bail laws in NSW represent a serious attack on the right to liberty that all people should enjoy if they have not been sentenced to imprisonment after a fair trial.In effect, it means people who are subsequently found not guilty of criminal offences have to languish in prison for months or years despite their having not committed any offence.This change represented a substantial diminution of the presumption of innocence.
But this change has nothing on the appalling changes the current Attorney-General, Brad Hazzard, has introduced and that will come into force in January next year.It wasn't and that says something of the reasonableness of the magistrate's decision.Bail was also granted in relation to sexual assault charges, relating to incidents alleged to have occurred some 11 years ago, by Magistrate Joan Baptie at Parramatta Local Court earlier this year.But NSW bail laws already undermine fundamental human rights and, in any event, the changes made to those laws in the past two years might not have made any difference to Monis's case.The facts in Monis's case seem to be, as far as one can glean from media reports, on the side of the Sydney magistrate* who granted him bail in December last year. The magistrate took into account the weakness of the prosecution case.Liberty of individuals and the right to the presumption of innocence should not be undermined lightly, but in NSW fundamental rights have been cast aside. The death of individuals in Martin Place this week is tragic but it is no reason to trash the rule of law.*Editor's note (December 18): This article originally misidentified the magistrate involved in the Monis bail decision in December 2013.