- PRIORITY ONE: OVERNIGHT CUSTODY
- BAIL IS IMPORTANT
- ELIGIBILITY FOR BAIL
- BAIL AUTHORITIES
- APPLICATIONS FOR RELEASE ON BAIL
- CONDITIONS OF BAIL
- TAKING INSTRUCTIONS FOR A BAIL APPLICATION
- THE STRUCTURE OF A BAIL APPLICATION
- BAIL SUBMISSIONS
- THE OUTCOME OF THE APPLICATION
- WHEN TO NOT APPLY FOR BAIL
- BAIL PENDING APPEAL
- UNREPRESENTED DEFENDANTS
- SUPPRESSION ORDERS
Applications for bail in all courts are governed by the Bail Act 1985 which applies to South Australian and Commonwealth offences. A bail agreement is an undertaking to the Crown to attend all court proceedings (except when excused from attendance by the court) and to comply with all conditions [see Bail Act 1985 s 6]. The bail agreement and guarantees end upon finalisation of the matter for which bail was granted, [see Bail Act 1985 s 20] or if revoked by the court as a consequence of breaching a term or condition of the bail agreement [see Bail Act 1985 ss 6(4), 6(5) and 18(1)].
|PRIORITY ONE: OVERNIGHT CUSTODY|
The priority of the duty solicitor is to assist people in overnight custody to apply for bail. It is important that the duty solicitor pursue every application for bail vigorously, regardless of their own view of the prospects of success. Even where a bail application is unsuccessful, it matters that the person feels a professional effort was made on their behalf.
Common reasons why people are in overnight custody:
- the deprivation of liberty, exposure to and experience of custodial conditions and gradual demoralisation;
- hampering the preparation of their defence;
- a lost opportunity to demonstrate the potential for rehabilitation while in the community before matter(s) are finalised;
- loss of employment and housing;
- time spent in custody unnecessarily if they are eventually acquitted;
- an inducement to plead guilty to finalise the matter, despite their innocence;
- loss of opportunity to make a better impression on the court by appearing at liberty rather than ex-custody; and
- an inability to settle domestic affairs; make arrangements for family, housing, debts, employment and other commitments prior to serving a sentence of imprisonment.
- are charged with an offence;
- are convicted of an offence but not yet sentenced;
- have not exhausted all rights of appeal or review following sentence [see Bail Act 1985 s 10(2) regarding unfettered discretion whether applicant should be granted bail];
- have failed to obey a condition of a recognizance;
- have failed to appear to answer a summons (includes witnesses and victims); or
- have been arrested on a warrant and are due to appear before a court as a witness [see Bail Act 1985 s 6(1b) for nature of bail agreement and s 10(3) for presumption of bail ].
A sergeant or higher-ranking police officer or the person in charge of the police station where the defendant is delivered following arrest can grant bail [see Bail Act 1985 s 5(1)(e)]. Where police bail is granted, the person is released from the police station once the conditions of bail are satisfied or agreed, and on condition they attend court on a designated date.
In theory, the only situation in which the Watch House sergeant or the sergeant of the police station at which the person is charged cannot grant bail is when the person is arrested on a first instance warrant (FINS) which has been endorsed by the Court as “ not certified for bail ”. This happens when the defendant has failed to appear in court on a previous occasion and the Court has issued a warrant of apprehension excluding police bail [see Bail Act 1985 s 5(1)(e)(i) and s 5(2)(b)]. In practice, the sergeant normally refuses police bail in serious matters such as homicides and armed robberies on the grounds of the gravity of the offence. Refusal of police bail means the person remains in custody until they can be brought to court for a bail application. A person is not eligible to apply for bail while detained under the Summary Offences Act 1953 for the purpose of investigating a serious offence [see Bail Act 1985 s 4(2); Summary Offences Act 1953 s 78(2) for power to detain; Summary Offences Act 1953 s 78(3) for removal from custody in police station; Summary Offences Act 1953 s 78(4) for authorisation by a Magistrate; Summary Offences Act 1953 s 78(6) for definition of prescribed period and serious offence; and Police Powers and Forensic Procedures chapter].
If police bail is refused, the defendant must be brought to court ‘ as soon as reasonably practicable on the next working day following the day of arrest but in any event not later than 4 p.m. on that day ’ [see Bail Act 1985 s 13(3)]. These people are detained overnight at the Watch House (or a few hours if arrested in the morning) while they wait to be brought to court to apply for bail.
If the person cannot be taken to court before 4 p.m. the day after their arrest, they can apply for a bail review (of the police refusal of bail) by a Magistrate over the telephone [see Bail Act 1985 ss 14(2)(b), 15 and 15(3)].
Where a South Australian police officer arrests and charges an offender in another participating jurisdiction within the geographical region (namely Western Australia or Northern Territory), the provisions of the Bail Act 1985 (SA) apply with some modifications [see Cross-border Justice Act 2009 ss 92 and 34(2)(a)]. Where a person is arrested and charged by a police officer from another jurisdiction in the South Australian region, the laws governing bail for the other jurisdiction apply rather than the Bail Act 1985 [see Cross-border Justice Act 2009 ss 94 and 51(2)(a) and Police Powers and Forensic Procedures chapter].
The Watch House sergeant will have refused bail for reasons based on the Bail Act 1985 s 10(1), which lists the circumstances which may rebut the presumption in favour of bail (discussed in detail below). The reasons for refusal of police bail must be clearly endorsed on the document Form 2 Written record of reasons for refusal of bail application and attached to the court file [see Bail Regulations 2000 sch 1 Form 2]. There should also be a copy of this document on the prosecution file. The Form 2 sets out the reasons for refusing police bail and forms the basis for prosecution opposing court bail. The factors commonly cited on the Form 2 are:
- the reasons why it is likely the applicant will abscond, such as a lack of community ties, no fixed address or previous breaches of bail conditions;
- the reasons why the applicant is likely to re-offend, such as allegations the person has re-offended whilst on bail for other offences, or a pattern of offending indicating a continued risk they will re-offend if released from custody. Examples are ongoing dishonesty offences due to drug dependency or making further violent approaches to a victim contrary to a domestic violence restraining order;
- the seriousness of the offence and/or the grave nature of the allegations;
- a previous history of, or current first instance warrants; and/or
- the applicant is wanted by police interstate for questioning and/or warrants.
|ADDRESS THE FORM 2|
|The duty solicitor should always access and address the Form 2 provided by prosecution before proceeding with an application for bail. The factors on the Form 2 will be the ones the duty solicitor takes detailed instructions on and concentrates on during submissions. Sometimes the Form 2 is not on the police file. This is the prosecution’s responsibility, not that of the duty solicitor. It is up to the police prosecutor to give reasons why bail is opposed. If the duty solicitor knows of the reasons from the defendant’s instructions, it is not their job to put them to the Court. The duty solicitor should simply indicate that they are not instructed by prosecution as to why police bail was refused and make submissions as to the factors in favour of bail.|
Bail may be granted by a Magistrate in the following circumstances:
The first application for bail following arrest and charge for a summary offence or indictable offence (prior to committal) following refusal of police bail [see Bail Act 1985 ss 5(1)(d) and 14(2)(b) regarding review of decision of bail authority]. Persons charged with major indictable offences must be subject to bail conditions [see Summary Procedure Act 1921 ss 103 and 112, and Courts and Jurisdiction chapter].
An application for bail can be made for persons who have been arrested for outstanding warrant(s) of apprehension [see Bail Act 1985 ss 4(1)(e) and 4(1)(f)]. When witnesses or victims in court proceedings who are required by the Court to attend to give evidence and/or produce evidentiary material fail to answer the summons to attend the Court, a warrant may be issued for their arrest [see Magistrates Court Act 1991 s 20(3)]. There is a presumption in favour of the granting of bail for a witness unless there is a risk they will abscond [see Bail Act 1985 s 10(3)]. In the case of a victim, there is a presumption in favour of the granting of bail with the primary consideration being any need of the victim for physical protection from the applicant [see Bail Act 1985 s 10(4)].
|WITNESSES AND VICTIMS|
|The arrest of persons who have failed to attend the Court to give evidence and/or produce evidentiary material in court proceedings is becoming more common. These people are at risk of being remanded into custody pending their appearance at court. Remember, there is a presumption in favour of granting bail in this situation. These people should be advised that it is a contempt of court to appear at the court proceeding and then refuse or fail to make an oath or affirmation, give oral evidence or provide evidentiary material. This is a contempt of court regardless of their appearance due to their arrest on a warrant [see Magistrates Court Act 1991 s 21].|
It is permissible to make further bail applications following an earlier refusal of bail [see Bail Act 1985 s 12(2) and box below]. While a change in circumstances is not required to reapply for bail, it is unlikely the application will be successful without a change in circumstances [see Webster v SA (2003) 87 SASR 17;  SASC 347].
|REQUEST TO REAPPLY FOR BAIL|
|The duty solicitor may be asked by a defendant remanded in custody to reapply for bail following an earlier refusal of bail. It is permissible to do so bearing in mind that some Magistrates: will not entertain a fresh application unless there is some new factor to put before the Court, such as the availability of assured accommodation or a guarantor or prosecution no longer opposes bail; or take the view that a fresh application should be heard by the Magistrate who originally refused bail. INSTRUCTIONS The duty solicitor should take careful instructions if they did not appear on the first application for bail. This is because they do not know what submissions were made to the Court during that first bail application.|
The defendant was previously granted bail but has remained in custody being unable to meet a particular condition such as provide a guarantor, deposit a cash surety or live at a nominated address. The defendant must be brought to court ‘for a review of the condition as soon as reasonably practicable, and, in any event, within five working days after the condition is imposed’ [see Bail Act 1985 s 11(9)(b)]. This review can be facilitated via audiovisual link [see Magistrates Court Rules 1992 r 46.03 and box below]. Should the applicant wish to be brought to court for the review, notice must be given to the Court at least two days prior to the hearing date [see Magistrates Court Rules 1992 r 46.07]. Upon review the Magistrate considers whether it is appropriate to confirm, vary, revoke or impose an alternative bail condition(s) to allow for release from custody [see Bail Act 1985 s 11(10) and box below].
|ALTERNATIVE BAIL CONDITIONS|
In this situation the duty solicitor should take instructions as to whether a substituted condition is acceptable to the defendant. For example:
|URGENT COURT LISTING|
|If the duty solicitor becomes aware that a defendant is in custody due to an unmet bail condition either within or after the requisite five days, ask court listings to urgently list the matter with a gaol order for the defendant to be brought to the Court. Where the Department for Correctional Services fail to ensure a person with an unmet bail condition is brought to the Court within the required five working days, there may be civil law issues of negligence as to a breach of duty under s 11(9) of the Bail Act 1985. In serious cases, the Crown Solicitor may authorise an ex gratia payment to compensate the defendant for the experience of unnecessary time in custody. The duty solicitor is not in a position to follow up such a situation. However, they should advise the defendant to seek legal advice about their entitlement to compensation. AUDIOVISUAL LINK Should the proceedings be listed by audiovisual link, the duty solicitor should be aware of the limitations on obtaining instructions on the day of the hearing. In particular, a lack of time and confidentiality may limit your ability to take further instructions immediately prior to the hearing. Attend the courtroom well before the hearing time and request access to the applicant via telephone before the hearing commences. Make sure the applicant can see and hear the proceedings at the commencement of the hearing [see Magistrates Court Rules 1992 r 46.07 for alternative gaol order and r 46.05 for private audio communication].|
All bail authorities are able to vary bail conditions upon their own initiative or upon application of the defendant [see Bail Act 1985 s 6(4)]. Matters can be brought forward for an earlier court listing if there is a need to vary a bail condition. The required Form 7 Application to vary or revoke a condition of bailis available from the court registry.
A District Court Judge may grant bail on indictable matters once the Court has jurisdiction on or following arraignment [see Bail Act 1985 s 5(1)]. The Court will issue a bench warrant should a defendant fail to appear or abscond [see Bail Act 1985 s 6(5)]. An application for bail on that particular matter must come before a Judge of that court [see box below].
|ASSISTING A PERSON WITH A BENCH WARRANT|
Duty solicitors commonly encounter the situation where a defendant arrested on a fresh summary offence also has a District or Supreme Court bench warrant. In this case you should:
The duty solicitor should not refrain from applying for bail on the summary matters simply because there is a bench warrant. If there is no application for bail on the summary matter(s) and the defendant is subsequently granted bail on the bench warrant matter(s), a situation arises where the defendant remains in custody in relation to their less serious offences.
|BAIL INFORMATION SYSTEM (BIS)|
|As of 23 May 2011, the Supreme Court and District Court introduced the Bail Information System (BIS) which provides a comprehensive bail report of all current bail agreements a defendant is subject to at any particular point in time. This information can be obtained from SAPOL, the police prosecutor or the DPP.|
A Supreme Court Justice may grant bail once the defendant appears before the Court on or after arraignment [see Bail Act 1985 s 5(1)(a)] and upon application by the defendant for a review of a refusal of bail by a Magistrate or District Court Judge [see Bail Act 1985 s 14]. A bail review is not an appeal; it is a hearing de novo in which the application is heard on its merits and the decision made based on the information before the Court at the time of the review [see also Bail Act 1985 s 15A].
Prosecution have a right to apply for a review of a grant of bail where bail has been granted despite opposition. When the Crown seeks a bail review there is a stay of release from custody [see Bail Act 1985 s 16(1)]. The defendant remains in custody until the review is completed, or the Crown files a notice that it will not proceed with the review, or 72 hours elapse, whichever occurs soonest [see Bail Act 1985 s 16(2)]. Should the Crown determine not to proceed or 72 hours elapse, the original bail conditions prior to the stay of release from custody apply [see Bail Act 1985 s 16(3) and box below].
|ARRANGING A SUPREME COURT BAIL REVIEW|
|A duty solicitor normally does not apply for bail or conduct a bail review before the Supreme Court. The duty solicitor must brief an experienced practitioner where the decision to refuse bail is reviewable. They will need to swear an affidavit as to the submissions made to the Court as duty solicitor. It is important that the duty solicitor write comprehensive notes, if not before, as soon as possible after the bail application while their submissions are fresh in their mind [see Affidavit Precedent].|
Section 10 of the Bail Act 1985 provides a statutory presumption of bail, deriving from the common law principle that a person is innocent until proven guilty. The presumption means that bail should be granted unless there are good reasons for refusing release from custody [see R v Duke  SASC 431]. The onus is on prosecution to establish reasons why bail should be refused.
Section 10 of the Bail Act 1985 (SA) provides factors which can rebut the presumption in favor of bail by persuading the Court that the applicant should not be released on bail [see Farquar v Fleet (1989) 50 SASR 490 at 493]. Generally, ‘the greater the likelihood of the events happening, the more inclined a court would be to hold that the presumption in favour of bail is displaced ’ [see R v H, IM  SASC 94; and R v P, AC (2005) 158 A Crim R 113;  SASC 451]. These factors are listed below with some common prosecution submissions supporting opposition to a grant of bail.
This is the usual ground of prosecution objection to bail where a major indictable offence is concerned in cases such as murder, attempted murder, armed robberies and rape. It is a ground commonly argued where, for any other reason, the defendant would expect a lengthy period of imprisonment if convicted [see Bail Act 1985 (SA) s 10(1)(a)].
This includes where the defendant would face a significant term of imprisonment if convicted, either because of the severity of penalty attached to the offence itself, or where previous criminal history indicates further leniency is unlikely, or where the offence would breach a suspended sentence of imprisonment or parole [see R v Melbourne (2002) 132 Crim R 318;  SASC 277 for an example of the principle]. Behaviour such as removal of electronic monitoring [see Richards v Police  SASC 368] or lack of social ties, no fixed address, or transient lifestyle may also be grounds used to establish this factor [see Bail Act 1985 (SA) s 10(1)(b)(i)].
Re-offending whilst on bail for other offences may indicate a risk the defendant will commit further offences if released on bail, or the defendant is alleged to be continually offending (for example in order to support a drug addiction) [see Bail Act 1985 (SA) s 10(1)(b)(ii)].
Concern the defendant will interfere with or intimidate witnesses, destroy evidence or obstruct the police investigation if released on bail [see Bail Act 1985 (SA) s 10(1)(b)(iii)].
Concern the defendant will breach an intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [see Bail Act 1985 (SA) s 10(1)(b)(iv); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18 for interim order issued by police; s 21 for orders issued by the Court; and s 12 for general terms of orders].
Where the defendant requires physical protection, medical or psychiatric care. Prosecution must show more than simply asserting that an applicant for bail ‘should be locked up for their own good’ [see Bail Act 1985 (SA) ss 10(1)(d) and 10(1)(e)].
This includes previous breaches of bail agreements, non-appearances, interstate warrants of apprehension for non-appearance or pending interstate extradition proceedings [see Bail Act 1985 (SA) s 10(1)(f)].
The primary consideration is any need to protect the victim of the offence from real or perceived physical violence. However, ‘it does not follow that wherever there is any need, real or reasonably perceived, to protect a victim that bail must be refused’ [see R v Dunstan  SASC 12 and Bail Act 1985 (SA) s 10(4)].
Some further common assertions made by prosecution in opposition to bail are:
Prosecution argue the applicant should be refused bail due to a lengthy history of offending. Unless the applicant has repeatedly failed to answer bail in the past, that submission is not necessarily relevant to bail (although it would be relevant to penalty). Indeed an offending history where the applicant has always attended court in the past may be a strong argument to grant bail in some cases.
|ADDRESSING THE APPREHENSION REPORT|
Where prosecution wish to argue the strength of the prosecution case the duty solicitor needs to access the apprehension report and take relevant instructions for the bail application. It is crucial for the duty solicitor to address the factors indicating the strength or otherwise of the allegations if they will assist the applicant to get bail. It is equally important they not make submissions as to the applicant’s instructions as this might limit the defence further down the track, and the duty solicitor may be called upon to explain the reasons for anyconcessions.
The duty solicitor needs to address any weakness in the prosecution case (as may be alleged in the apprehension report) which supports the presumption of bail. Some potential weaknesses are: circumstantial evidence, motives for witnesses to fabricate, weakness of any identification evidence, and the defendant’s denial of the offence when interviewed by police.
The duty solicitor should not make admissions or propose a particular defence in any detail.
Section 10A of the Bail Act 1985 (SA) removes the statutory presumption of bail in certain circumstances. When section 10A applies, the onus shifts onto the applicant for bail to convince the bail authority that there are “special circumstances” justifying bail before the bail authority can grant bail [see Bail Act 1985 s 10A(1)]. Section 10A applies in relation to the following offences:
Where a person allegedly uses a motor vehicle in a police pursuit or attempts to entice a police pursuit [see Criminal Law Consolidation Act 1935 (SA) s 19AC] and in doing so commits an offence of:
- manslaughter caused by use of the motor vehicle [see Criminal Law Consolidation Act 1935 s 13]; or
- driving a vehicle or operating a vessel ‘ in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public ’, including where the dangerous use of the motor vehicle causes death or harm [see Criminal Law Consolidation Act 1935 s 19A]; or
- act(s) endangering life or creating risk of serious harm in the course of use of the motor vehicle [see Criminal Law Consolidation Act 1935 s 29].
Breach of a bail condition ‘ relating to the physical protection of a victim ’ of a previous offence imposed under the Bail Act 1985 (SA) s 11(2)(a)(ii) [see Bail Act 1985 s 17].
A breach of a condition of an intervention order where the breach involves a threat of physical violence or actual physical violence [seeIntervention Orders (Prevention of Abuse) Act 2009 (SA) s 31].
Failure to comply with a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008 (SA) [see s 14 for control orders; s 22 for failure to comply with control order; s 23 for public safety orders; and s 32 for failure to comply with public safety order].
Threats against another person intending to get the other to submit to a demand [see Criminal Law Consolidation Act 1935 (SA) s 172].
Influencing a criminal investigation or court proceeding through stalking, causing injury to a person or property damage (including attempt, or procuring) [see Criminal Law Consolidation Act 1935 (SA) s 248].
Influencing ‘ the manner in which a public officer discharges or performs his or her official duties or functions ’ by stalking, causing injury to a person or property damage (including attempt, or procuring) [see Criminal Law Consolidation Act 1935 (SA) s 250].
Causing a ‘ fire that burns, or threatens to burn, out of control causing damage to vegetation (whether or not other property is also damaged or threatened) ’ [see Criminal Law Consolidation Act 1935 (SA) s 85B].
Serious firearms offences [see Criminal Law (Sentencing) Act 1988 (SA) s 20AA].
Serious and organised crime suspect: This is defined as where the applicant is not a child and has been charged with a serious and organised crime offence (per the definition in the Criminal Law Consolidation Act 1935 (SA)) and the grant of bail is likely to cause a potential witness or other person connected with the proceedings reasonable fear of their safety [see further s 3A Bail Act 1985 (SA)].
Under s 10A(1a) a bail applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of a serious crime offence or an offence that would have been a serious and organised crime offence had it been committed in South Australia.
The situations considered special circumstanceshave no limit and can therefore accommodate a wide variety of arguments justifying a person’s release on bail. The Court is required to ‘import a wide and flexible approach in determining whether an applicant has established special circumstances’ and must interpret section 10A of the Bail Act 1985 (SA) ‘having regard to the principle that a person charged with an offence is presumed innocent and should only be held in custody if they cannot establish special circumstances ’ [see R v Buhlmann SASC 123].
Circumstances exist where they place the applicant outside of the contemplated high risk to the public. The circumstances and seriousness of offending are very important. There is also a discretion to release applicants who would suffer unintended or unforeseen hardship or injustice brought about by the presumption against bail [see R v Lombardi SASC 61 at 21 and 24-25]
Some examples of situations which may establish special circumstances are: trivial breaches of bail, no prior criminal history, the unlikelihood of a penalty of imprisonment, time already spent in custody, suitability for home detention bail, circumstances indicate that there is no longer a risk to the public, anticipated time in custody awaiting trial, and the need to care for dependants.
|SPEAK TO THE PROSECUTOR|
|The duty solicitor should speak with prosecution about their attitude to ascertain whether bail is opposed and on what grounds before taking instructions from their client. This can save the duty solicitor from having to return to see the prosecutor after taking instructions or vice versa. In cases of a simple first instance warrant with no aggravating factors or other less serious matters, prosecution may be willing to indicate they are not opposing bail on certain conditions, such as the provision of a residential address and/or guarantor. READ THE COURT FILE(S) If time permits, the duty solicitor should ask the court clerk for the court files, read them and make notes about the charges and offence dates. Information in the court files can provide the duty solicitor with information about who has acted for the client in the past, what unresolved matters are in the court system, past attendances at court, whether summonses were issued and so forth. The duty solicitor should not appear for another solicitor’s client without instructions from the solicitor.|
|RESPOND TO PROSECUTION SUBMISSIONS|
|It is up to prosecution to show why the presumption of bail should not apply, and not up to the defence to show why bail should be granted. The duty solicitor should respond to prosecution submissions as to why the presumption is displaced. Individual bail applications should be structured around prosecution’s grounds for opposition, focusing on matters relevant to those grounds. This is very different from the conduct of a guilty plea where the duty solicitor attempts to give a concise but narrative personal profile of the defendant. It is important for the duty solicitor to analyse the grounds for opposition to bail before taking instructions so they can address these points vigorously in submissions [see Bail submissions below].|
It is a condition of every bail agreement that the defendant is prohibited from possessing a firearm, any oart of a firearm or ammunition and is required to submit to gunshot residue testing as may be reasonably required [see Bail Act 1985 (SA) s 11 (1)].
- to reside at a specific address [see s 11(2)(a)(i)]
- home detention or curfew [see s 11(2)(a)(ia)]
- supervision by a community corrections officer [see s 11(2)(a)(iii)]
- conditions for the physical protection of a victim [see s 11(2)(a)(ii) and s 11(2a)]
- regular reporting to a local police station [see s 11(2)(a)(iv)]
- surrendering a passport [see s 11(2)(a)(v)]
- written assurances [see s 11(2)(b)]
- forfeiture [see s 11(2)(c) and s 19]
- cash surety [see s 11(2)(d)]
- guarantors [see s 11(2)(e)]
- security provided by guarantor [see s 11(2)(f)]
- any other conditions regarding the applicant’s conduct [see s 11(2)(vi)]
- not to leave the State for any reason without the permission of the appropriate authority [see ss 11(6) and 11(12) whereby a bail condition can relate to a place or circumstances outside the State]
- surrender any firearm, part of a firearm or ammunition owned or possessed by the person (without criminal liability) [s 68A].
When a person breaches a condition of bail the Court may order the estreatment of bail. This is an order that monies stipulated in the bail agreement are to be forfeited. For example, this may involve the forfeiture of the person's own cash surety or that of a guarantor.
A guarantor must be at least 18 years of age [see Bail Act 1985 s 7(6)]. A guarantee of bail is an agreement to ensure the applicant for bail complies with all conditions of the agreement and the guarantor will comply with all conditions of the guarantee, including forfeiture of a sum should the applicant fail to comply with the bail agreement [see Bail Act 1985 ss 7(1) and 19; and Bail Regulations 2000 Form 5 Guarantee of Bail for example of guarantee]. Should the guarantor know or suspect any breaches of the bail agreement he or she is obliged to take reasonable steps to inform the police [see Bail Act 1985 s 17A]. They can apply to the Court at anytime to have the agreement revoked [see Bail Act 1985 ss 7(4) and 7(5)].
|NO OBLIGATION TO ADVISE GUARANTORS|
|There is no obligation upon a duty solicitor to provide guarantors with legal advice about the consequences a guarantor faces should the applicant fail to abide by all of the conditions of their bail. The duty solicitor can provide a general run down of their obligations and suggest they seek independent legal advice.|
|PENDING CRIMINAL MATTERS|
|Some Magistrates will check the names of potential guarantors against the court database for any pending criminal matters. It is useful to take instructions about the proposed guarantor and whether they have any pending criminal matters before you appear in court. Whether enquiries about the character and antecedents of a guarantor to assess their ability to comply with conditions of the guarantee are within the power of the Court is unclear and it is possible the principles in R v Barrett (1985) 37 SASR 512 still apply.|
It is difficult but essential for duty solicitors to maintain confidentiality. The facilities in the Adelaide Magistrates Court for face to face interviewing (interview room or spare cell) are not soundproof.
In other situations the duty solicitor will be speaking with the applicant through a (usually malfunctioning) intercom system. There will be G4S prison custody officers, police prosecutors, other prisoners and members of the public within earshot. The client may be agitated, angry, possibly withdrawing from drugs or suffering from a psychiatric illness. Their speech may be loud and incoherent. The duty solicitor should keep their own voice low and calm to persuade the client to quieten down as well. The duty solicitor should be patient and repeat questions gently but firmly until they get the instructions they need.
The duty solicitor should interrupt and warn their client if they appear to be about to canvass material which could be construed as admissions. Those are issues to be dealt with eventually by the solicitor who will have conduct of the matter and should not be overheard by other parties. If the client is charged with a sensitive matter such as sexual assault or offences where the victim is a child, the applicant could be at serious risk of violence from other prisoners if the nature of the charge and allegations are broadcast.
|TAKING INSTRUCTIONS FOR A BAIL APPLICATION|
The duty solicitor should have the pink duty solicitor form ready to record instructions before commencing to do so. The client may be more concerned to detail their life history or to express outrage at the arrest than to provide the specific instructions the duty solicitor needs. As such, the duty solicitor may need to control the interview by gently interrupting the client with precise questions until the interview ends.
It is easier for the duty solicitor to remember what to ask the client about if they relate each question back to the relevant issue, rather than think of these matters as just a list of questions. For example, to respond to prosecution concerns about a risk of absconding the duty solicitor should seek instructions about accommodation, employment, relationships and dependants which are relevant to the client's ties to the state and hence address the risk of absconding. The duty solicitor should take instructions on the following factors:
If the client instructs that they have denied the allegations to police, the duty solicitor should not state in the
application ‘My client is pleading “not guilty”’. Instead simply say ‘my client has denied the allegations in the police interview’.
If the duty solicitor is pressed for time when taking instructions in relation to bail, they should get the basics, such as:
While this list may not be comprehensive, it covers the basic issues, and the duty solicitor can seek further instructions from the dock if necessary. If and when doing so, the duty solicitor should remember not to turn their back to the bench, as it is considered discourteous, but still attempt to obtain confidential instructions.
|Before making an application for bail, the duty solicitor should follow up any matters raised by their client. For example, they may need to telephone a potential guarantor to find out his/her willingness to be a guarantor. The client will not be allowed to make such a call themselves unless, and until, granted bail (to then ask the guarantor to attend to sign the documents).|
The structure and detail of the application will vary according to the nature and level of the prosecution's opposition to bail. Thus it is important for the duty solicitor to negotiate with the prosecutor beforehand, as to whether conditions can be agreed and confirm whether the client will be willing and able to comply with those conditions.
|STRINGENT BAIL CONDITIONS|
|The prosecution are keen to see strict compliance with conditions of bail. Where a defendant has been arrested for breaching a bail condition, it is not advisable for the duty solicitor to offer or suggest that the defendant should be re-released on bail, subject to even more stringent bail conditions. If the prosecution proposes bail conditions which appear unnecessarily onerous, the duty solicitor should be prepared to argue the application in the normal way, and focus upon explaining the reasons for the breach, if the breach is in fact admitted. The duty solicitor should not advise their client to agree to any conditions simply for the sake of bail being granted, because they may be more difficult for the client to comply with . A Magistrate may well agree with a duty solicitor's view and grant bail on less stringent conditions than sought by the prosecution. MAINTAIN CONSISTENCY WITH EXISTING BAIL CONDITIONS It is important that the duty solicitor is aware of any conditions set in pre-existing bail agreements. The duty solicitor must ensure that any bail conditions arising from an application are consistent with those pre-existing it. A Magistrate may call into court all other files to ensure consistency of bail conditions.|
It is important the applicant is in the dock before submissions begin for the bail application. It is important that they are present in court and can hear everything that is said. The formal order of address is as follows:
- the defence indicates that the defendant is applying for bail;
- the prosecutor indicates that bail is opposed and submits reasons why bail should be refused; then
- defence puts submissions in support of bail, responding to the prosecution grounds of opposition.
|YOUR APPEARANCE AS DUTY SOLICITOR|
|The duty solicitor must make it clear that their appearance on the bail application is in their capacity as duty solicitor, otherwise the Magistrate may not note this fact on the court file. The result might be that on a subsequent appearance by the defendant, where for some reason their solicitor is not in court, the duty solicitor may be called for by the Magistrate under the mistaken impression that they have the conduct of the defendant’s file. To avoid such confusion, the duty solicitor should announce themself thus ‘my name is X. I appear as duty solicitor for Y’.|
Where prosecution have indicated that bail is unopposed and an agreement has been reached about bail conditions, submissions to the Court are straightforward, such as:
Note‘Your Honour, I appear as duty solicitor for the defendant in this application for bail. I understand my friend is not opposing bail with particular condition(s) and those can be met…….’
Then outline the necessary details relating to those conditions [see Proposals for bail conditions below].
|SPELL DIFFICULT WORDS|
|When the duty solicitor is stating a word which is spelt unusually such as a street name or a guarantor’s name, they should spell it slowly and clearly so the Magistrate’s clerk can record it accurately.|
It is important that submissions are accurate yet concise. They must address the contentious issues raised by prosecution. The submissions should form an argument rather than a narrative or description of a scenario. Personal style and the individual case will affect the structure of the argument.
|NEVER EXCEED THE AMBIT OF THE APPLICANT'S INSTRUCTIONS|
|These suggestions are no more than possible avenues of argument. Each duty solicitor should develop their own style and vary their submissions to suit the individual case.|
Address the client's age, place and length of residence, and stress any ties in the community which would argue against their absconding (such as family ties, dependants, employment, current medical treatment, and educational courses).
Comments on the weakness of the prosecution case as disclosed in the apprehension report can be persuasive but should be submitted as objective comment (in general terms only) rather than as the client's instructions.
Some examples are:
- “the defendant strenuously denied the allegations to police when interviewed …”
- “the prosecution case is entirely circumstantial …”
- “there is no evidence on the face of the apprehension report to establish an essential element of the offence such as possession/knowledge/mental intent/presence at the scene …”
- “the evidence of identification is nebulous at best …”
State any circumstances which would predispose a Magistrate to accept that the applicant is a good bail risk, such as:
- a voluntary surrender to the police station on a warrant;
- voluntarily accompanying police to a police station for questioning;
- knowing they were under investigation but nevertheless making no attempt to abscond;
- cooperation with police;
- always answered bail in the past (provided the court is already aware of the prior record).
Focus on the contentious issues raised by the Form 2 Written record of reasons for refusal of bail application and/or the prosecutor’s submissions opposing bail. The following submissions may assist in addressing particular objections if they are consistent with instructions.
|INSTRUCTIONS ON CRIMINAL RECORD|
|The duty solicitor should always check the client's criminal record if the prosecutor seeks to tender it in court. Only consent to a tender of the record if the client admits those prior offences.|
- the client admits the prior record but has always turned up to court in the past;
- the record does not include offences of violence such as might make a gaol sentence likely under s 11 of the Criminal Law (Sentencing) Act 1988 even if convicted of this offence;
- the client has kept out of trouble for quite some time despite a bad patch in the past;
- the client is making positive efforts to get their life together (some examples are a new relationship; is now raising a child and is therefore in a greater position of responsibility; is seeking psychiatric/psychological counselling; is participating in a job-training programme; is receiving counselling for drug/alcohol problems; is now on the methadone programme). Only refer to these factors if relevant, known to the police or evident from the charge/allegations;
- even if convicted for this offence, the client would not necessarily receive a term of imprisonment;
- even though a sentence of imprisonment may be likely, the length of time the client is remanded in custody pending finalisation would be greater than the expected sentence of imprisonment;
- the offence predates a suspended sentence or parole; and
- even where the offence would, if the applicant were convicted, breach a suspended sentence or parole, it is by no means certain that the Court would not be persuaded to excuse the breach (s 58(3) of the Criminal Law (Sentencing) Act 1988).
- the client has medical certificates to explain previous non-appearances;
- the client telephoned court to say he or she could not attend;
- the client could not arrange transport to court;
- the client's domestic life was in turmoil at the time but is now more stable;
- the client failed to appear due to a medical, psychiatric or drug dependency which was dominating his/her life at the time but which no longer poses a problem;
- any other matter which the client offers in explanation for a non-appearance. If they instruct they simply forgot, ask them why (what did they have on their mind) and provide the Court with the explanation.
- the client disputes the other charges and is properly instructing their solicitor as to those matters;
- there is no similarity between this charge and any other current matters which might suggest the client is a risk to the community if released on bail;
- these offences relate to matters which predate the existing grant of bail.
Provide details of any current obligations which make it unlikely the client would risk re-offending such as:
- benefiting from the supervision of a probation/parole officer;
- would be unlikely to jeopardise employment;
- is receiving benefit from medical or psychiatric treatment;
- has supportive parents or partner who will be supervising their day-to-day activities;
- seeking drug or alcohol counselling through (x) agency (if a drug or alcohol problem is admitted).
In matters of grave seriousness it may not be in the client's best interests to make any application for bail at all on the first occasion the matter is before the Court (see below). Where a bail application is appropriate the following submissions may be posed against this objection:
- weaknesses in the prosecution case;
- the offence and allegations are not of such a nature as would suggest the client would be a danger to the community if granted bail;
- the client needs to be at liberty to properly instruct counsel and prepare his/her defence;
- if refused bail the applicant will spend an unwarranted length of time remanded in custody awaiting committal to and trial in a higher court;
- due to the client's age (very young, or very old) they would suffer detrimental conditions in custody or would be vulnerable and at risk of victimisation in custody;
- the nature of the charge (for example where the alleged victim is a child) would put the client at risk of assault in custody. Such a submission should be put obliquely and with great caution, and without specific reference to the allegations, particularly if any other prisoners are present;
- the client has a medical condition which cannot be adequately treated in custody;
- the client needs to be at liberty in order to continue in employment so as to be able to afford legal representation;
- the client is willing to refrain from contact with any alleged co-offenders, victim or witnesses.
- the client is willing to comply with any condition of bail and not contact or approach particular witnesses and has no wish to do so;
- the client has no knowledge of the nature of the evidence to be alleged against them and would not be in a position to interfere.
This submission is often made almost as a matter of course. If there is no merit in it in a particular case, politely suggest to the Court that the prosecutor should substantiate such a ground for opposition.
- there is always going to be a risk of a defendant absconding but this does not displace the presumption without more;
- the client wishes to clear their name of the offence and will attend court whenever required;
- the client has community ties which would be jeopardised should they abscond (examples are family, house, job, medical treatment);
- the client is aware of the consequences of absconding and of the inference of guilt which could be drawn at trial were he to do so;
- the client would lose Housing Trust accommodation if remanded in custody and would have to go to the bottom of the waiting list once eventually released.
Propose concrete conditions on which bail could be granted without unacceptable risk, for example:
- where the client will reside;
- available guarantors;
- cash sureties if available;
- the frequency of reporting to a probation officer or police station (weekly, twice weekly);
- conditions not to contact or approach particular witnesses or victims, or to surrender a passport, participate in drug and alcohol counselling programmes, or obey their probation officer’s directions about ongoing psychiatric treatment.
|BEWARE OF RESTRICTIVE CONDITIONS|
|The duty solicitor should be wary of advising a client to offer more than is necessary in a particular case, as they might then be responsible for the applicant being released on much more restrictive conditions than the Court was thinking of initially.|
Where the Court is unsure, at the end of the application, whether granting bail is appropriate or what the terms of bail should be, it can require, or you may request, one or more expert assessments to be made to assist the Court with its decision.
Where the Magistrate is undecided as to whether bail should be granted, the Court may of its own motion or at the request of defence order a bail assessment report to inform the Court further on particular issues [see Bail Act 1985 s 9]. Such issues are whether suitable accommodation is available; likely response to probation supervision; and whether adequate community support systems are available. Bail assessment reports are prepared by probation officers attached to the Court Liaison Unit of the Department for Correctional Services. It usually takes three days for a report to be prepared. Supervision requirements should not be imposed unless applied for or consented to by the Crown [see Bail Act 1985 s 11(3) and cases cited below in Home detention bail assessment report section].
|ASKING FOR A BAIL ENQUIRY REPORT|
|Most Magistrates will order such a report at the duty solicitor’s request provided the duty solicitor can give good reason as to why it might assist the Magistrate in determining bail. It may not be in the applicant’s interests to request such a report if they have a history of offending interstate or breaches of probation because those details will become accessible to the officer who will be preparing the report. The duty solicitor should always check what information the prosecution file contains as to these matters, as compared with the client's instructions, before requesting such a report. Once ordered, the report will be presented to the Court, so if it is unfavourable to the client, he or she is stuck with it. If a bail assessment report is ordered, the duty solicitor should contact the probation officer who will be preparing the report and pass on any positive information which would assist the client's case if confirmed by the report. They should also contact the probation officer prior to the next listing of the matter (usually a few days later) and ask for a copy of the written report or a brief summary of the thrust of the report if it is going to be orally presented to the Court.|
The same considerations apply to ordering a psychiatric report on a bail application. The client is stuck with a report even if it is an unfavourable report. However, for a defendant detained under the Mental Health Act 2009, ordering such a report may assist in a grant of bail or allow their transfer from James Nash House (the prison psychiatric unit) to Glenside Hospital (in a locked ward).
The Magistrate may intimate that bail will be refused despite submissions. Where the client clearly has no prospect of simple bail, the duty solicitor may ask the Magistrate to consider granting bail on home detention conditions. Where the client has stable accommodation with telephone facilities, the Magistrate may order a home detention bail assessment report to confirm whether the client's accommodation is suitable for connection to the electronic facilities and anklet by which home detention bail is monitored.
There is a view home detention bail conditions should not be imposed unless applied for or consented to by the Crown [see Bail Act 1985 s 11(3) and R v Duke  SASC 431]. However, the Court has a discretion to order home detention bail where resources are available to effect home detention supervision despite Crown opposition to an applicant’s release from custody [see R v Quinn  SASC 41 and R v Cooke (2003) 231 LSJS 406;  SASC 403].
|The duty solicitor should seek instructions as to whether the client is willing to comply with home detention monitoring before they request such a report.|
If bail is refused the duty solicitor should:
- request a return date in two to four weeks time (depending on the client's instructions, although ordinarily it would be two weeks if they are in custody) for the client to obtain legal advice promptly;
- advise the client as to the merit of seeking a Supreme Court bail review (see Bail Act 1985 s 14];
- advise the client that he/she should seek legal representation urgently. Advise the client to contact their own solicitor and offer contact on their behalf (if one is already acting for them in another matter). If they are unrepresented, help them fill out a legal aid application. Defendants often spend unnecessary time remanded in custody simply because they do not understand how to go about seeking legal representation, or because they have to rely on other people to forward their legal aid application promptly.
|ASSISTANCE WITH LEGAL AID APPLICATION|
|The duty solicitor should write “urgent in custody” (UIC) across the top of the front page of the application and lodge it with the Records Section of the relevant branch of the Commission immediately. If located at the Adelaide office, the duty solicitor should photocopy pages 1, 5 and 6 and hand those with the application and allegations to the Head of the Criminal Law Section at the end of every day.|
If bail is granted and the duty solicitor has the opportunity to do so, they should check that the G4S prison custody officers in charge of the cells allow the client to make a telephone call to contact guarantors. They should also advise the client of the need to apply promptly for legal aid or instruct a private solicitor, and make sure they are aware of the return date for the next court appearance.
Occasionally, bail is granted in the absence of the applicant. For example, they are not brought to the Court due to an oversight with a gaol order or the hearing is via audiovisual link. In this situation, should the Magistrate grant bail, they can direct the bail agreement be entered into before the person in charge of the prison or any other person authorised by the bail authority [see Bail Act 1985 s 6(3)]. The bail papers are subsequently faxed to the prison.
When a defendant who is on bail appears in the Court, the court file is simply endorsed with DA for defendant appears, and unless the defendant's bail has been varied or revoked, with BTC for bail to continue.
In some cases the duty solicitor will need to advise that an immediate application for bail is not in the client's best interests. The client may be better served by applying at a later stage when a solicitor has been assigned and there is time to fully prepare detailed submissions. Some examples are listed below.
Bail applications in these matters should only be undertaken by experienced counsel. They are complicated, sensitive and attract media attention. If a defendant is unrepresented at the first appearance in court, the duty solicitor should contact an experienced criminal practitioner of the Commission who will make him or herself available immediately. The defendant should be advised:
- not to apply for bail until an experienced practitioner is fully instructed and has the opportunity to negotiate potential conditions of bail with the DPP;
- that there will be a greater chance of success with a fully-prepared bail brief in the hands of experienced counsel at a later stage;
- that if they are refused bail on a premature application, the chance of being granted bail at Magistrates Court level later is greatly reduced;
- that any submissions made prematurely could be used to their prejudice in later proceedings;
- that an immediate bail application may only inflame media attention. Inaccurate reporting cannot be erased later down the track and could be detrimental. It is better to wait a week or so until media scrutiny subsides;
- that they will need advice from an experienced practitioner as to whether it would be in their interests to seek a suppression order pursuant to the Evidence Act 1929 s 69A. This is a serious consideration and should not be decided by a duty solicitor in the rushed conditions of a first appearance.
|ASK FOR THE MATTER TO BE HELD IN THE LIST|
|Sometimes in sensational cases, even though a duty solicitor may have advised prosecution and the Court that the defendant will not be applying for bail, prosecution proceeds to read the allegations to the Court (and attendant media). If this happens, the duty solicitor should immediately intervene to ask the Court that the matter be held in the list. Then contact an experienced practitioner at the Commission to arrange for them to attend immediately to represent the defendant when the matter gets called back on. They may be able to apply for a suppression order if the prosecution or the Court insists on the allegations being read.|
In cases where the defendant has been freshly arrested but already has serious matters before the Court and has little prospect of being granted bail on a new serious matter, the duty solicitor should advise:
- that if they insist on making an application for bail forthwith, and this is refused by the Court, they may be precluded from further applications in the Magistrates Court and there may then be little or no merit in pursuing a Supreme Court bail review;
- that their best chance may be to wait until a solicitor has conduct of the matter and is in a position to make a fully prepared and comprehensive application.
|REQUEST FOR MATTER TO BE BROUGHT FORWARD|
|Even if the duty solicitor indicates to the Court that ‘there is no application for bail at this stage’ and the defendant is remanded in custody to be brought to court on a particular date, it is possible to have the matter listed before that date in the call-over court for a bail application.|
Where a negative bail assessment report has been prepared containing information prejudicial to the defendant, they should be advised that it may be in their best interest to withdraw the application for bail, at least at this stage.
Where prosecution’s objections to bail seem insuperable, the duty solicitor should advise that there is no realistic prospect of bail at this stage and suggest the client wait until a solicitor is fully instructed before reconsidering their position.
|DUTY TO APPLICANT|
|If the client declines this advice and insists on proceeding with a bail application, the duty solicitor has a duty to put their instructions as robustly as they can. The duty solicitor should not allow their manner to suggest to the Court, the prosecutor or to the defendant that they feel the application is hopeless. That is a question for the Court. For this reason, it is inadvisable for the duty solicitor to say to the Court ‘I am instructed to apply for bail’, as it suggests that they have no confidence in the application.|
There is no presumption in favour of bail where the defendant is lodging an appeal against conviction or sentence. The Court has unfettered discretion [see Bail Act 1985 s 10(2)]. In most cases the duty solicitor is not involved, because an instructed solicitor has conduct of the matter.
Unrepresented defendants who are convicted and imprisoned may seek the duty solicitor’s assistance to appeal and apply for bail until the appeal is determined. It is important for the duty solicitor to give assistance in these cases. The following procedure may assist:
- Obtain a notice of appeal form from the registrar and assist the defendant to fill it out stating broad grounds of appeal, such as “The sentence imposed by the Learned Stipendiary Magistrate was manifestly excessive” or “The Learned Stipendiary Magistrate erred in failing to give sufficient weight to the appellant’s personal circumstances”. More precise grounds may be added at a later stage if warranted [see Notice of Appeal Precedent].
- Have the defendant sign the appeal notice him or herself. Do not sign on their behalf as ‘solicitor for the appellant’. A practitioner who does so has conduct of and responsibility for the matter from then on. This is not the duty solicitor’s job.
- Ask the registrar to list the matter immediately before a different Magistrate for a bail application (sometimes there is no other Magistrate available, for example when on circuit, so the matter will have to be listed before the same Magistrate).
- Apply for bail in the normal manner.
- Whether successful or not, refer the matter immediately to your manager or a senior practitioner for advice on the merits of an appeal, together with an application for legal aid if the defendant appears to be eligible. Even if the defendant is not eligible for legal aid, they can still pursue the appeal unrepresented if desired.
|ASSISTING UNREPRESENTED PERSONS|
The duty solicitor should be familiar with the case of Cooling v Steel (1971) 2 SASR 249, which refers to matters a Magistrate should bring to the attention of an unrepresented person pleading guilty. In particular the Magistrate should indicate that a sentence of imprisonment may be considered and that the person is entitled to seek legal advice before the plea is entered. Where those matters are not raised by the Magistrate, at least by general intimation, there may be grounds to appeal against conviction and sentence.
The duty solicitor must not offer any advice as to the merit of an appeal unless you were actually present during the Magistrate’s sentencing remarks. Senior counsel opinion on the merits of an appeal should be sought. If senior counsel later finds there is no merit in the appeal it can be discontinued unless the defendant wishes to pursue it unrepresented.
If the sentence of imprisonment ordered is relatively short (for example two to four weeks) the defendant will have served that time in custody before legal representation is arranged, unless the duty solicitor immediately assists or arranges for an experienced practitioner to attend on them in custody in the next few days.
A court may make a suppression order in accordance with the Evidence Act 1929 section 69A, where it is satisfied such an order would prevent prejudice to the proper administration of justice, or to prevent undue hardship to an alleged victim, a potential witness or a child [see Evidence Act 1929 s 69A(1)]. When considering making such an order, the Court must recognise the primary objective of the administration of justice, namely safeguarding the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings [see s 69A(2)(a)]. A court may only make a suppression order in accordance with section 69A if it is satisfied that special circumstances exist which give rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship so as to justify the making of the order [see s 69A(2)(b)].
It is an offence to disobey a suppression order made in accordance with section 69A which may be actioned as a contempt of court [see Evidence Act 1929 s 70(1)]. The maximum penalty for a natural person is a fine of $10 000 or imprisonment for two years; and for a body corporate, a fine of $120 000 [see s 70(1a)].