Section 10 of the Bail Act 1985 (SA) 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 [1999] 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 [2006] SASC 94; and R v P, AC (2005) 158 A Crim R 113; [2005] 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 serious assaults, arson, 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; [2002] SASC 277 for an example of the principle]. Behaviour such as removal of electronic monitoring [see Richards v Police [2007] 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)].
This includes the strength of the evidence in the allegations, any prior convictions and any other special need for the applicant to be granted bail [see Bail Act 1985 (SA) s 10(1)(g)].
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 [2010] 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.
Prosecution argue the allegations in the apprehension report indicate a strong prosecution case for a serious offence [see box below].
| ADDRESSING THE APPREHENSION REPORT |
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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)]. See the section below on establishing special circumstances for assistance on this.
Section 10A applies in relation to the following offences:
Where an applicant is taken into custody in relation to the offence of murder [see Criminal Law Consolidation Act 1935 (SA) s 11; Bail Act 1985 (SA) s 10A(2)(d)(ai)]
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:
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 (SA) 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].
An aggravated offence involving physical violence (or the threat of physical violence) resulting in contravention of an intervention order of a court [see Bail Act 1985 (SA) s 10A(2)(ca)].
Where a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person without their consent [Criminal Law Consolidation Act 1935 (SA) s 20A; see s 20A(3) for definition of in a relationship; see also Bail Act 1985 (SA) s 10A(2)(d)(i)].
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)].
Contravention or failure to comply with a control order or a public safety order issued under the Serious and Organised Crime (Control) Act 2008 (SA) [ss 22I, 32].
Threats against another person intending to get the other to submit to a demand [see Criminal Law Consolidation Act 1935 (SA) s 172].
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].
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].
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 Sentencing Act 2017 (SA) Part 3, Division 3].
Where an applicant has been taken into custody in relation to both:
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.
Where an applicant taken into custody in relation to an offence against section 86(4) of the Children and Young People (Safety) Act 2017 (SA)
Where the bail application does not necessarily relate to a terrorist offence, but the applicant has previously been charged with or convicted of a terrorist offence, or is the subject of a terrorism notification or a control order under Part 5.3 of the Commonwealth Criminal Code. Terrorist offences is defined in section 3(1) of the Bail Act 1985 (SA) and includes offences prescribed by the associated regulations.
Regulation 3A of the Bail Regulations 2015 (SA) defines a terrorist act to include an offence under section 83CA (Information for terrorist acts) of the Criminal Law Consolidation Act 1935 (SA).
From 23 June 2020, there is a presumption against granting bail for persons charged with, or convicted of certain Commonwealth child sex offences [See Crimes Act 1914 (Cth) s 15AAA].
A bail authority must be satisfied that circumstances exist to grant bail, and must consider the matters outlined in section 15AAA(2) of the Crimes Act 1914 (Cth) when determining whether such circumstances exist.
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[2010] SASC 123 in particular at 22-23]
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[2013] SASC 61 at 21 and 24-25; R v Ravesi [2016] SASC 128 at 12].
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 police/ victim/ public, anticipated time in custody awaiting trial, and the need to care for dependants.
The fact that the applicant was receiving medical treatment and had sole care of a family member may also be relevant considerations (see R v Ravesi [2016] SASC 128 at 13-17).
The over-representation of Aboriginal persons in custody, and the need to avoid cultural bias, may be an additional factor in establishing special circumstances (see R v Webb [2019] SASC 8at 27-30; R v Hayes [2018] SASC 114 at 10 , and R v Sumner [2020] SASC 231at 12 and 29).
| SPEAK TO THE PROSECUTOR |
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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.
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| RESPOND TO PROSECUTION SUBMISSIONS |
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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]. |
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