When not to apply for bail

In some cases the duty solicitor will need to advise that an immediate application for bail is not in the client's best interests. The client may be better served by applying at a later stage when a solicitor has been assigned and there is time to fully prepare detailed submissions. Some examples are listed below.

Homicide arrests and other sensational matters

Bail applications in these matters should only be undertaken by experienced counsel. They are complicated, sensitive and attract media attention. If a defendant is unrepresented at the first appearance in court, the duty solicitor should contact an experienced criminal practitioner of the Commission who will make him or herself available immediately. The defendant should be advised:

that there is a presumption against bail if person is charged with the offence of murder (section 11 of the Criminal Law Consolidation Act 1935 (SA));
not to apply for bail until an experienced practitioner is fully instructed and has had the opportunity to negotiate potential conditions of bail with the prosecutor;
that there will be a greater chance of success with a fully-prepared bail brief in the hands of experienced counsel at a later stage;
that if they are refused bail on a premature application, the chance of being granted bail at a later stage is greatly reduced;
that any submissions made prematurely could be used to their prejudice in later proceedings;
that an immediate bail application may only inflame media attention. Inaccurate reporting cannot be erased later down the track and could be detrimental. It is better to wait until media attention subsides;
that they will need advice from an experienced practitioner as to whether it would be in their interests to seek a suppression order pursuant to the Evidence Act 1929 (SA) s 69A. This is a serious consideration and should not be decided by a duty solicitor in the rushed conditions of a first appearance.

ASK FOR THE MATTER TO BE HELD IN THE LIST
Sometimes in sensational cases, even though a duty solicitor may have advised prosecution and the Court that the defendant will not be applying for bail, prosecution proceeds to read the allegations to the Court (and attendant media). If this happens, the duty solicitor should immediately intervene to ask the Court that the matter be held in the list. Then contact an experienced practitioner at the Commission to arrange for them to attend immediately to represent the defendant when the matter gets called back on. They may be able to apply for a suppression order if the prosecution or the Court insists on the allegations being read.

ASK FOR THE MATTER TO BE HELD IN THE LIST

Sometimes in sensational cases, even though a duty solicitor may have advised prosecution and the Court that the defendant will not be applying for bail, prosecution proceeds to read the allegations to the Court (and attendant media). If this happens, the duty solicitor should immediately intervene to ask the Court that the matter be held in the list. Then contact an experienced practitioner at the Commission to arrange for them to attend immediately to represent the defendant when the matter gets called back on. They may be able to apply for a suppression order if the prosecution or the Court insists on the allegations being read.

Fresh arrests where previous serious matters

In cases where the defendant has been freshly arrested but already has serious matters before the Court and has little prospect of being granted bail on a new serious matter, the duty solicitor should advise:

that if they insist on making an application for bail forthwith, and this is refused by the Court, they may be precluded from further applications in the Magistrates Court and there may then be little or no merit in pursuing a Supreme Court bail review;
that their best chance may be to wait until a solicitor has conduct of the matter and is in a position to make a fully prepared and comprehensive application.

REQUEST FOR MATTER TO BE BROUGHT FORWARD
Even if the duty solicitor indicates to the Court that ‘there is no application for bail at this stage’ and the defendant is remanded in custody to be brought to court on a particular date, it is possible to have the matter listed before that date in the call-over court for a bail application.

Negative bail assessment report containing prejudicial information

Where a negative bail assessment report has been prepared containing information prejudicial to the defendant, they should be advised that it may be in their best interest to withdraw the application for bail, at least at this stage.

Insuperable prosecution objections to bail

Where prosecution’s objections to bail seem insuperable, the duty solicitor should advise that there is no realistic prospect of bail at this stage and suggest the client wait until a solicitor is fully instructed before reconsidering their position.

DUTY TO APPLICANT
If the client declines this advice and insists on proceeding with a bail application, the duty solicitor has a duty to put their instructions as robustly as they can. The duty solicitor should not allow their manner to suggest to the Court, the prosecutor or to the defendant that they feel the application is hopeless. That is a question for the Court. For this reason, it is inadvisable for the duty solicitor to say to the Court ‘I am instructed to apply for bail’, as it suggests that they have no confidence in the application.

DUTY TO APPLICANT

If the client declines this advice and insists on proceeding with a bail application, the duty solicitor has a duty to put their instructions as robustly as they can. The duty solicitor should not allow their manner to suggest to the Court, the prosecutor or to the defendant that they feel the application is hopeless. That is a question for the Court. For this reason, it is inadvisable for the duty solicitor to say to the Court ‘I am instructed to apply for bail’, as it suggests that they have no confidence in the application.

When not to apply for bail : Last Revised: Mon May 21st 2012

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