Section 10 of the Bail Act 1985 (SA) provides a statutory presumption of bail. This derives 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 favour 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 at [15] and R v P, AC (2005) 158 A Crim R 113; [2005] SASC 451]. These factors are listed below with some common prosecution submissions in 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, due to the severity of penalty attached to the offence itself, 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 an electronic monitoring device [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)].
Reoffending while on bail for other offences may indicate a risk the defendant will commit further offences if released on bail again. It may also indicate that the defendant is continually offending (for example to support a drug addiction) [see Bail Act 1985 (SA) s 10(1)(b)(ii)].
Bail is less likely to be granted where there is a concern the defendant will interfere with or intimidate witnesses, destroy evidence or obstruct the police investigation if released from custody [see Bail Act 1985 (SA) s 10(1)(b)(iii)].
The court will also have regard to the likelihood of the defendant breaching an intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [see Bail Act 1985 (SA) s 10(1)(b)(iv); see also Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18 for interim orders issued by police; s 21 for orders issued by the court; and s 12 for general terms of intervention orders].
The court will consider whether the defendant requires physical protection or 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 might include the strength of the evidence for 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 court's primary consideration is to the need the victim of the alleged offending may have (or perceive) for physical protection from the applicant. 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 at [13] and Bail Act 1985 (SA) s 10(4)].
Some further common prosecution arguments against bail are set out below.
The prosecution often argues that an 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 may argue the allegations in the apprehension report indicate a strong prosecution case for a serious offence.
| 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 help the applicant 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 any concessions. The duty solicitor needs to address any weakness in the prosecution case (as may be alleged in the apprehension report) that supports the presumption of bail. Some potential weaknesses include circumstantial evidence, motives for witnesses to fabricate, potential issues with 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 to the applicant for bail (who becomes a 'prescribed applicant') to convince the bail authority that there are special circumstancesjustifying bail before the bail authority can grant bail [see Bail Act 1985 s 10A(1)]. See the section below on establishing special circumstances.
Section 10A applies in relation to the following offences:
An applicant taken into custody in relation to the offence of murder [see Bail Act 1985 (SA) s 10A(2)(d)(ai); Criminal Law Consolidation Act 1935 (SA) s 11].
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 [see Intervention 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)].
Whether someone is a serious and organised crime suspect is a matter for the bail authority. A bail authority may determine that a person is a serious and organised crime suspect if satisfied that they have been charged with a serious and organised crime offence [as defined in the Criminal Law Consolidation Act 1935 (SA)], the person was not a child at the time of the alleged offence, and the grant of bail is likely to cause a potential witness (or other person connected with the proceedings) reasonable fear for their safety [see Bail Act 1985 (SA) s 3A].
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 they have 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.
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].
Stalking or causing injury or property damage intending to influence the manner in which a public officer performs their official duties [see Criminal Law Consolidation Act 1935 (SA) s 250].
Stalking or causing injury or property damage intending to influence a criminal investigation or court proceeding [see Criminal Law Consolidation Act 1935 (SA) s 248].
Intentionally or recklessly causing a bushfire (within the meaning of s 85B of the Criminal Law Consolidation Act 1935 (SA)).
Serious firearms offences are defined in the Sentencing Act 2017 (SA) Part 3, Division 3.
Where an applicant has been taken into custody in relation to both:
Where an applicant has been taken into custody in relation to an offence against section 86(4) of the Children and Young People (Safety) Act 2017 (SA).
There is a presumption against bail for terror suspects [Bail Act 1985 (SA) s 10A(2)(g); see s 3B for the definition of a terror suspect]. From 16 December 2024, this includes persons charged with a state terrorist offence or persons who have previously been charged before a court with, or convicted of, a terrorist offence [see Bail (Terror Suspects and Firearm Parts) Amendment Act 2024 (SA)]. This change only applies to persons taken into custody on a charge of an offence allegedly committed on or after 16 December 2024.
For bail applications in relation to Commonwealth terrorism charges, see Crimes Act 1914 (Cth) s 15AA.
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 at [22] - [23]].
Circumstances exist where they place the applicant outside of the contemplated high risk to the public. The circumstances and seriousness of the alleged 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 128at [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 tell the duty solicitor 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 other relevant matters.
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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