Tuesday, 14 May 2013

Should my client apply for Bail?

It's been a while since I have made a post about a strictly 'legal' topic. Most of what I do here is complaining about the Legal Services Commission (hand that feeds?) or snarking about politics. I guess it's time to get back on topic.

Ok, so Bail. Anyone who has ever worked in Criminal Law has had to apply for or defend an application for Bail. The usual course of events is this:
  • Applicant applies to Sergeant at Police Station where arrested for bail. If refused...
  • Applicant makes application for Magistrates Court. Must be heard quickly. If refused...
  • Applicant can make application for review in the Supreme Court.
I have yet to do a Supreme Court bail application, because the last time it came up, by the time funding was approved, there was a material change of circumstances, and our client was released on a fresh bail application in the Magistrates Court. 

The Bail Act 1985 governs the granting of bail in South Australia. Section 10 stipulates the most critical piece of the law, in my opinion: the resumption of bail. It means that the default position is that a person will be granted bail. It is similar in effect to the presumption of innocence. 

There are provisions under s10A for when bail should not be granted except in exceptional circumstances. The most common of these is where the person has been arrested for breaching terms of an Intervention Order, and young lawyers should be very careful about making applications in these cases, without reading the legislation thoroughly. Even if the allegation is not that they breached the IO by threatening the victim's physical safety, if the condition that they breach is imposed for the victim's physical safety, then they are a prescribed applicant. 

If s10A applies, bail will not be granted unless you can demonstrate 'special circumstances.'

I have dealt with a matter where a client was charged with a large number of offences, many of them committed whilst on bail for similar offending. The offences, if proven, were certain to attract a penalty of imprisonment (drive disqualified), and that sentence is likely to exceed a year. 

Whilst there was a distant chance that he could be released on Home Detention, as soon as he entered pleas, he would be sent straight back to Port Augusta for a lengthy stay. I therefore advised him NOT to apply for bail, and enter pleas immediately. (He acknowledged all elements of all charges.)

Under the new Criminal Law Sentencing legislation, entering a plea on the first possible occasion entitles you to a sentencing discount of up to 40%. This means that for a 10 month term of imprisonment, you could be sentenced only to 6 months. You could then be eligible for release on Home Detention after three months. 

Also, whilst my client is in detention, he won't be able to commit any more offences. 

1 comment:

  1. The thing is you really have to check where you can work it in your client’s favor. The fact that it is well known that the system is set up in a way so as to get the most amount of money from a plaintiff you have to weigh the pros and cons of submitting an application. It could mean all the difference between a few dollars or a small fortune in bail money.