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.
1. Personal circumstances
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).
2. Address the allegations
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 …”
3. List good bail risk factors
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.
The defendant has a lengthy criminal history
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 more likely;
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;
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 [see section 114 of the Sentencing Act 2017 (SA)].
The defendant has a history of failing to appear at court
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 defendant is alleged to be offending whilst on bail for other offences
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.
The defendant is likely to re-offend
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).
The seriousness of the charge displaces the presumption in favour of bail
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.
Risk of interference with evidence/witnesses if released on bail
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.
There is a risk that the defendant would abscond
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.
5. Proposals for bail conditions
Propose concrete conditions on which bail could be granted without unacceptable risk, for example:
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.
Bail submissions : Last Revised: Mon May 21st 2012