Taking instructions for a bail application

CONFIDENTIALITY
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.

CONFIDENTIALITY

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: The person’s demeanour (if necessary): note whether the client is drunk, tired, drug-influenced, psychotic, whether they seem to understand proceedings and any physical injuries. These details may be important later at a voir dire hearing if the defendant wishes to challenge the voluntariness of any alleged admissions made to police. Full name, age, date of birth, marital status: note whether they are single, married, in a de facto relationship, separated and length of the relationship. Current address: including how long the client has been residing, the status of the accommodation (ownership, mortgage, private rental, housing trust or share-rental) and whether the lease is under the client's name so as to suggest stability of accommodation. Proposed residential address if released on bail: this may not be the address the client has beenliving at because, for example, their partner is the alleged victim and lives at that address. *Details about the people the client would live with if released on bail.* Ages and particulars of any dependants: such as children, partner, elderly parents, and whether the client is responsible for their day-to-day care. Any domestic arrangements which would be disturbed: the potential effect of refusal of bail on caring for a sick or elderly parent or other family members, child-care commitments, collection of children from school, job interviews, employment or attendance at educational courses. Family and community ties. Employment status: whether they are employed and the nature of that employment including whether there a real likelihood of them losing their job if they are locked up. Prior convictions: whether the client has ever been sentenced to a period of imprisonment; whether they are currently or have recently been on a good behaviour bond, suspended sentence, parole or bail in relation to other charges. The duty solicitor should not mention prior offending that is not recorded on the prosecution file. In such a case it is best not to take instructions from the defendant on the issue of a prior record. Any previous failure(s) to appear in court: whether there is a good explanation for the non-appearance(s). Potential guarantors: the names, addresses and telephone numbers of any available guarantors and details of their relationship to the person. Remember the Court may check to see if they have any criminal matters pending. *Whether any cash surety* can be lodged with the court, and if so, in what amount (this is not common but neither is it rare). Any health problems:** whether a medical or psychiatric condition would make a remand in custody inappropriate. For example, is the client receiving medical treatment or taking medication requiring regular contact with a particular doctor. How long has the client been in custody and what were the circumstances of the arrest? What does the person understand to be the charge(s) laid against him or her and the circumstances of the offence? This includes the client's understanding of the allegations; any complaint of police misconduct; whether there was a record of interview with police; whether there has been an identification parade or other form of identification; whether the client has made any admissions or denials to the police. The duty solicitor should not expand on the circumstances of the offence in the process of the bail application, as it could prejudice the client's instructions to his or her solicitor at a later stage. 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’.

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:

The person’s demeanour (if necessary): note whether the client is drunk, tired, drug-influenced, psychotic, whether they seem to understand proceedings and any physical injuries. These details may be important later at a voir dire hearing if the defendant wishes to challenge the voluntariness of any alleged admissions made to police.
Full name, age, date of birth, marital status: note whether they are single, married, in a de facto relationship, separated and length of the relationship.
Current address: including how long the client has been residing, the status of the accommodation (ownership, mortgage, private rental, housing trust or share-rental) and whether the lease is under the client's name so as to suggest stability of accommodation.
Proposed residential address if released on bail: this may not be the address the client has beenliving at because, for example, their partner is the alleged victim and lives at that address.
Details about the people the client would live with if released on bail.
Ages and particulars of any dependants: such as children, partner, elderly parents, and whether the client is responsible for their day-to-day care.
Any domestic arrangements which would be disturbed: the potential effect of refusal of bail on caring for a sick or elderly parent or other family members, child-care commitments, collection of children from school, job interviews, employment or attendance at educational courses.
Family and community ties.
Employment status: whether they are employed and the nature of that employment including whether there a real likelihood of them losing their job if they are locked up.
Prior convictions: whether the client has ever been sentenced to a period of imprisonment; whether they are currently or have recently been on a good behaviour bond, suspended sentence, parole or bail in relation to other charges. The duty solicitor should not mention prior offending that is not recorded on the prosecution file. In such a case it is best not to take instructions from the defendant on the issue of a prior record.
Any previous failure(s) to appear in court: whether there is a good explanation for the non-appearance(s).
Potential guarantors: the names, addresses and telephone numbers of any available guarantors and details of their relationship to the person. Remember the Court may check to see if they have any criminal matters pending.
Whether any cash surety can be lodged with the court, and if so, in what amount (this is not common but neither is it rare).
Any health problems: whether a medical or psychiatric condition would make a remand in custody inappropriate. For example, is the client receiving medical treatment or taking medication requiring regular contact with a particular doctor.
How long has the client been in custody and what were the circumstances of the arrest?
What does the person understand to be the charge(s) laid against him or her and the circumstances of the offence? This includes the client's understanding of the allegations; any complaint of police misconduct; whether there was a record of interview with police; whether there has been an identification parade or other form of identification; whether the client has made any admissions or denials to the police. The duty solicitor should not expand on the circumstances of the offence in the process of the bail application, as it could prejudice the client's instructions to his or her solicitor at a later stage.

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’.

BASIC INSTRUCTIONS
If the duty solicitor is pressed for time when taking instructions in relation to bail, they should get the basics, such as: Name Date of birth Address/proposed bail address Who will they live with? When were they arrested and for what? Reasons for any previous non-appearances Details of potential guarantors 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.

BASIC INSTRUCTIONS

If the duty solicitor is pressed for time when taking instructions in relation to bail, they should get the basics, such as:

Name
Date of birth
Address/proposed bail address
Who will they live with?
When were they arrested and for what?
Reasons for any previous non-appearances
Details of potential guarantors

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.

CONTACTING GUARANTORS
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).

Taking instructions for a bail application : Last Revised: Mon May 21st 2012

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