skip to content
Banner image

Bail applications

Most often the duty solicitor will need to assist defendants with a mental illness or impairment who are in custody on a fresh arrest and following refusal of police bail. In these cases the Form 2 reasons for refusal of bail will frequently include:

  • the seriousness of the offence;
  • an assertion that the defendant is itinerant and has no fixed place of abode;
  • an assertion that the defendant is non-compliant with medication and therefore at risk of re-offending;
  • an assertion that the defendant has no community ties such as family or social support networks.

An application for bail and clear advice as to how to apply for legal representation will be the duty solicitor’s first priority. Where the defendant is granted bail it will save time later if the duty solicitor can persuade the defendant to apply immediately for a solicitor to act.

Bail conditions where the defendant seeks a voluntary psychiatric admission

The Court has no power to grant bail with a condition that a person reside voluntarily or involuntarily at a psychiatric care institution, such as Glenside Campus or the psychiatric wards of any of the major public hospitals.

Therefore, where the client wishes to be admitted voluntarily into a psychiatric care institution, the application for bail may include a proposal that the client is willing to reside where directed by an officer from the Department for Correctional Services, initially to be at Glenside Campus. If bail is granted with that condition it becomes the responsibility of the Correctional Services officer to approve a new residential address if the person is discharged from hospital prior to the next return date.

Note, however, that this situation will rarely arise. Voluntary admission to the public psychiatric hospital wards is chronically restricted by a shortage of beds and the duty solicitor should not give any assurance to the Court on the client’s behalf that the defendant will be admitted on a voluntary basis unless the hospital itself has provided written confirmation.

Bail conditions where there is a Mental Health Act 2009 order for involuntary treatment

Where there is already in effect an order that a defendant be involuntarily treated under the Mental Health Act 2009 (SA), it may be useful to submit to the Court (if the defendant instructs that he or she wishes the duty solicitor to do so) that the practical effect of a grant of bail would be that the defendant would be under appropriate care in an approved treatment centre until fit to be discharged, rather than in the community. This submission may address the Court’s concerns as to the safety of the defendant as well as that of the community, and may give the Court some assurance as to where the defendant will be.

Under part 5 of the Mental Health Act 2009 (SA), a medical practitioner or authorised health professional can make orders for the treatment of mentally ill persons as inpatients at a treatment centre. The following information relates to these involuntary treatment orders.

Level 1 inpatient treatment order

Under section 21 of the Mental Health Act 2009 (SA) an initial order (level one inpatient treatment order (‘ITO’)) for treatment at an approved treatment centre can only last a maximum of seven days after the day on which it was made if the person:

  • has a mental illness which requires immediate treatment; and
  • should be admitted and detained in the interest of his/her health and safety or for the protection of other people;
  • the person has impaired decision-making relating to their treatment; and
  • there is no less restrictive means to ensure appropriate treatment.

The person must be examined by a different psychiatrist as soon as practicable within 24 hours of the making of a level 1 ITO or as soon after that as is possible and that psychiatrist must either confirm or revoke the original order.

Level 2 inpatient treatment order

Under section 25 of the Mental Health Act 2009 (SA) a psychiatrist can make a level two inpatient treatment order at the expiry of the seven day level one order. A level two ITO allows for further treatment of the person of up to a maximum of 42 days after the day on which the level two order is made. The criteria for the making of a level two ITO are the same as for a level one ITO.

Level 3 inpatient treatment order

The South Australian Civil and Administrative Tribunal (SACAT) may make a level three inpatient treatment order where satisfied:

  • that the person suffers a mental illness, and
  • because of the mental illness the person requires treatment for their own protection from harm (including harm from the continuation or deterioration of the condition) or for the protection of others from harm, and
  • the person has impaired decision-making capacity relating to their treatment, and
  • there is no less restrictive means to ensure appropriate treatment [see Mental Health Act 2009 (SA) s 29(1)].

A level three inpatient treatment order can only last a maximum of six calendar months after the day on which it was made (in the case of a child), and 12 calendar months after the day on which it was made (in the case of an adult) [see s 29(5)]. The Tribunal may, on application, by order, vary or revoke a level three inpatient treatment order at any time [see s 29(6)].

Summary of inpatient treatment orders

In summary, a combined level one and level two inpatient treatment order, would provide a maximum of forty nine days inpatient treatment under the Mental Health Act 2009 (SA). These orders can be revoked by the psychiatrist or medical practitioner at any time where it is judged to be no longer necessary. In the case of a level three inpatient treatment order placed upon an adult, there is a maximum of 12 months detention, however, this can be revoked at any time by the South Australian Civil and Administrative Tribunal. In view of the uncertain length and conditions of a Mental Health Act 2009 (SA) inpatient treatment order, some Magistrates may be reluctant to grant bail without alternative conditions of accountability, such as additional supervision by staff of the Department for Correctional Services.

Bail assessment report

A bail assessment report may be requested on behalf of a defendant to address issues such as suitable accommodation, availability of community support systems, the defendant’s previous response to supervision, and the likelihood of compliance with prescribed medication or even the feasibility of home detention bail. However, as discussed earlier, such a report may disclose unfavourable information, and it is therefore important that before requesting such a report the duty solicitor obtains thorough instructions from the client.

First instance warrants

The duty solicitor will often deal with instances where a defendant with a mental illness or impairment is in custody following arrest on a first instance warrant. Magistrates are usually reluctant to remand a defendant with a mental illness or impairment in custody in view of their vulnerability when incarcerated, unless there is a risk to the community or the offence is grave. However, due to their condition, a person with a mental illness or impairment will often fail to answer bail when it is granted and eventually a warrant will issue. By the time a defendant with a mental illness or impairment has been arrested and brought to court on a first instance warrant, the offence itself may be distant in time, and the defendant may have forgotten it, and done nothing to gain legal representation in the interim.

In this circumstance a Magistrate may intimate that a further grant of bail is out of the question.

URGENT IN CUSTODY LEGAL AID APPLICATIONS
Where a Magistrate intimates that a defendant may be facing a remand in custody while matters are “sorted out”, the priority for the duty solicitor is to help the defendant with an application for legal aid marked “Urgent-In-Custody” and lodged with the relevant Commission office.
Bail applications  :  Last Revised: Wed May 1st 2019