The same considerations apply when assisting an Aboriginal defendant apply for bail as for non-Aboriginal people [see Bail chapter]. However, there are a few considerations relevant to Aboriginal people which must be taken into account. Aboriginal people often have extended family and community networks. When bail is an issue it is desirable for the duty solicitor to know or to be able to find out how the family of the accused is reacting to his or her predicament. If the defendant wants bail because of an impending family funeral or birth, then they must emphasise in their submissions the importance of funerals and births to Aboriginal society and the need for the defendant to attend. It may be useful to call as witnesses senior members of the defendant’s family. Similarly communication with an Aboriginal defendant’s relatives may assist in bail applications by providing information as to possible guarantors, places to live or employment.
It may also be useful for the duty solicitor to get instructions to speak to an Aboriginal Justice Officer (AJO) as well as representatives of community organisations such as community development and employment programs, community councils, and Aboriginal health services, because they are in a unique position to provide information that will assist the Aboriginal defendant in court.
Sometimes instructions are obtained which would normally make it difficult to successfully apply for bail. An Aboriginal defendant may not have a fixed address, or may move from house to house, and in such a case, it will be important for the duty solicitor to demonstrate that these aspects of Aboriginal society are not inconsistent with an Aboriginal defendant being reliable when it comes to court appearances.
When dealing with traditional Aboriginal people whose second language is Aboriginal English, it may be prudent to not put relatives up as guarantors. The reasons for this are complex, but basically the notion of a guarantor under the Bail Act 1985 (SA) is very difficult to explain to traditional people, and is fundamentally alien to traditional societies' notion of an autonomous individual. The relationship of “guarantor” does not apply ordinarily, except in specific contexts which relate to Aboriginal cultural practices. Except in those specifically Aboriginal contexts, traditional people do not ordinarily take on responsibilities akin to that of a guarantor, although they may be very keen to do whatever is necessary to get their relative out of custody. It is certainly true that traditional people are often very frightened of the consequences of custody for their relatives. In those cases, where the Court demands a guarantor, it will be necessary to ensure that the prospective guarantor gives his or her informed consent to being a guarantor through the services of an interpreter and fully understands their legal obligations and the financial consequences if the bailed person does not attend court. Generally speaking, the supervision of a probation officer may be a more viable alternative than having traditional people serve as guarantors.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
.png)
.jpg)
.jpg)
.jpg)
Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
.png)
.png)
