Editorial: Bail laws must be rigidly enforced if they are going to work

Opinion

Hard though it may be at times for victims of crime to see it, defence lawyers do a worthwhile and often thankless task: in testing the robustness of the criminal cases that the state brings against citizens, they guard against the improper use of state power.

But noted Auckland defence lawyer Gary Gottlieb pushed his remit too far when he spoke in the wake of the conviction and sentencing of Haiden Davis for the murder of Augustine Borrell.

Gottlieb, who was not acting for Davis, but rather speaking about issues raised by the case, seemed relaxed about the fact that the killer was on bail when he fatally stabbed Augustine in a late-night fracas outside a Herne Bay service station.

"People are out there banging the drums," he said, "saying yes we must make it tougher, but the reality is the system by and large works well. It doesn't matter what system you bring in, there are always going to be hiccups but in the end, it works pretty well."

It is not hard to imagine the reaction of Augustine Borrell's bereaved family to this blithe pronouncement. It would tax the patience even of the dead youngster's father, Charlie, who comported himself during and after the trial with impressive dignity and bearing.

Gottlieb, a former president of the Auckland District Law Society, has become accustomed over the years to making public statements designed to soothe community disquiet. But to the extent that they may be applied to the case of Haiden Davis, his assurances do not stack up.

This is not the first case in which someone on bail has committed an offence. It will not be the last. Gottlieb is right to say that there will always be "hiccups". But it is not sufficient to describe what happened in this case as a hiccup.

Judges are not unaware of public unease about the frequency and ease with which bail is granted. That unease prompted the incoming National Government to amend the bail laws to protect the public from "any" risk, rather than the more qualified "real or substantial risk" that had applied under the Labour-led administration.

Davis' applications for bail - both on the murder charge and on the earlier charge of aggravated assault - preceded that legislative change, of course, and the prevailing wisdom at the time was that bail should be granted for young accused. But if Police Commissioner Howard Broad described the assault charge as "a bag snatch [and] kick in the shins", it sounds suspiciously like an attempt to minimise the systems failure that occurred here. The fact is that

Davis had a string of convictions, yet police failed on three occasions to oppose bail. Worse, when he breached his conditions by failing to turn up at court, the matter was not followed up.

The revelation this week that he had broken even the terms of the restricted bail he was on while awaiting trial on the murder charge - meeting a witness and driving a stolen car, among other things - was the final slap in the face to the Borrell family. But the police failure to adequately monitor Davis is an equal disgrace. As Charlie Borrell put it, if someone on bail awaiting trial for murder cannot be closely monitored, they should not be released at all.

If the police have inadequate resources to monitor people on bail they need to redeploy staff - or make it plain that they cannot fulfil the expectations we have of them. Either way, they need to lift their game. And in the meantime, systemic failure that cost a young man his life should not be dismissed as a hiccup.