Where the Court is unsure, at the end of the application, whether granting bail is appropriate or what the terms of bail should be, it can require, or you may request, one or more expert assessments to be made to assist the Court with its decision.
Where the Magistrate is undecided as to whether bail should be granted, the Court may of its own motion or at the request of defence order a bail assessment report to inform the Court further on particular issues [see Bail Act 1985 (SA) s 9]. Such issues are whether suitable accommodation is available; likely response to probation supervision; and whether adequate community support systems are available. Bail assessment reports are prepared by probation officers attached to the Court Liaison Unit of the Department for Correctional Services. It usually takes three days for a report to be prepared. Supervision requirements should not be imposed unless applied for or consented to by the Crown [see Bail Act 1985 (SA) s 11(3) and cases cited below in Home detention bail assessment report section].
| ASKING FOR A BAIL ENQUIRY REPORT |
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| Most Magistrates will order such a report at the duty solicitor’s request provided the duty solicitor can give good reason as to why it might assist the Magistrate in determining bail. It may not be in the applicant’s interests to request such a report if they have a history of offending interstate or breaches of probation because those details will become accessible to the officer who will be preparing the report. The duty solicitor should always check what information the prosecution file contains as to these matters, as compared with the client's instructions, before requesting such a report. Once ordered, the report will be presented to the Court, so if it is unfavourable to the client, he or she is stuck with it. If a bail assessment report is ordered, the duty solicitor should contact the probation officer who will be preparing the report and pass on any positive information which would assist the client's case if confirmed by the report. They should also contact the probation officer prior to the next listing of the matter (usually a few days later) and ask for a copy of the written report or a brief summary of the thrust of the report if it is going to be orally presented to the Court. |
The same considerations apply to ordering a psychiatric report on a bail application. The client is stuck with a report even if it is an unfavourable report. However, for a defendant detained under the Mental Health Act 2009 (SA), ordering such a report may assist in a grant of bail or allow their transfer from James Nash House (the prison psychiatric unit) to Glenside Hospital (in a locked ward).
The Magistrate may intimate that bail will be refused despite submissions. Where the client clearly has no prospect of simple bail, the duty solicitor may ask the Magistrate to consider granting bail on home detention conditions. Where the client has stable accommodation with telephone facilities, the Magistrate may order a home detention bail assessment report to confirm whether the client's accommodation is suitable for connection to the electronic facilities and anklet by which home detention bail is monitored.
There is a view home detention bail conditions should not be imposed unless applied for or consented to by the Crown [see Bail Act 1985 s 11(3) and R v Duke [1999] SASC 431]. However, the Court has a discretion to order home detention bail where resources are available to effect home detention supervision despite Crown opposition to an applicant’s release from custody [see R v Quinn [2004] SASC 41 and R v Cooke (2003) 231 LSJS 406; [2003] SASC 403].
| INSTRUCTIONS NEEDED |
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| The duty solicitor should seek instructions as to whether the client is willing to comply with home detention monitoring before they request such a report. |
If bail is refused the duty solicitor should:
| ASSISTANCE WITH LEGAL AID APPLICATION |
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| The duty solicitor should write “urgent in custody” (UIC) across the top of the front page of the application and lodge it with the Records Section of the relevant branch of the Commission immediately. If located at the Adelaide office, the duty solicitor should photocopy pages 1, 5 and 6 and hand those with the application and allegations to the Head of the Criminal Law Section at the end of every day. |
If bail is granted and the duty solicitor has the opportunity to do so, they should check that the G4S prison custody officers in charge of the cells allow the client to make a telephone call to contact guarantors. They should also advise the client of the need to apply promptly for legal aid or instruct a private solicitor, and make sure they are aware of the return date for the next court appearance.
Occasionally, bail is granted in the absence of the applicant. For example, they are not brought to the Court due to an oversight with a gaol order or the hearing is via audiovisual link. In this situation, should the Magistrate grant bail, they can direct the bail agreement be entered into before the person in charge of the prison or any other person authorised by the bail authority [see Bail Act 1985 (SA) s 6(3)]. The bail papers are subsequently faxed to the prison.
When a defendant who is on bail appears in the Court, the court file is simply endorsed with DA for defendant appears, and unless the defendant's bail has been varied or revoked, with BTC for bail to continue.
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