Successfully obtaining bail on behalf of a client is of utmost importance for a few notable reasons. The most obvious reason being that your client obtains their liberty, but also and importantly that your client will have better access to his/her legal team and the ability to properly prepare for hearing or trial.
Clients will often exhaust avenues for release in the Local or District Court and are thus left with no other option but to apply to the Supreme Court. Persons who have been refused release (or who have not applied at all) in lower courts have a statutory right to apply for bail in the Supreme Court of New South Wales.
As a Sydney barrister who appears somewhat frequently within this jurisdiction, I find it prudent to impart some useful information for solicitor advocates and other barristers alike who may find themselves appearing in such an application.
A Supreme Court bail application generally speaking procedurally unfolds a follows:
- Parties are called & enter appearances, applicant brought up on Audio Visual Link Screen;
- The Crown tenders their bundle of documents. This includes an overview of the charges pending before the courts & the Crown’s position on bail, dates of alleged offences, Police Facts Sheets for each set of alleged offences, a recent criminal history, a custody management report (confirming the accused conduct whilst in custody & dates held at various correctional centres). There may be an objection to some or all of the material of the Crown.
- The Crown is asked whether they oppose the application for release.
- The Applicant (Accused Person) tenders their bundle of documents. This may include medical records (confirming hardship in custody), support letters from family, friends and colleagues, a letter to the court from the applicant him/herself, an affidavit from an instructing solicitor, affidavits from persons willing to provide surety or a residence whilst on bail, any other material supporting the applicant. The Crown may object to some or all of the material tendered.
- The Applicant’s representative may seek to call evidence from their client and/or any other parties who may support the application for release.
- The Crown’s representative will then cross-examine persons called by the applicant.
- The Applicant will then make submissions about why release should be granted, discussing all the reasons why the court should accede to the application made.
- The Respondent/Crown will then talk about all the reasons as to why the Applicant should not be given bail.
- The Learned Justice of the Supreme Court will then give his/her decision and reasons for decision.
It is important to note the following:
- Have a good understanding of the Bail Act (NSW) 2013 and how it is applied on a practical level. Be aware and understand some of the leading decisions and be able to incorporate judicial precedent or remarks in obiter that may be of use to your client.
- Have a common sense, practical bail proposal for the Court. If say your client instructs you to propose a bail address where known criminals reside, being the place he/she was picked up at for his most recent offence, consider a different bail proposal and give frank advice.
- Exercise extreme care when considering to call your client to give evidence. If you are going to call your client to give evidence you will need to very earnestly raise the following:
- Everything they say will go on record & can be used against them at trial or hearing. Advise them that you will NOT under any circumstances be discussing the allegations nor broaching upon anything that may be incriminating. If your client has poor self control, don’t call them. As advocate you make the forensic decisions;
- They will be cross-examined by a Crown Prosecutor. If they are used to Local Court Hearings and the calibre of police questioning within that jurisdiction, this will be different;
- Go through with them any breaches or failures to appear on their record on obtain instructions. If your client minimises their conduct or gives poor excuses, consider whether you really want to call them and give frank advice as to how a court may treat what they say;
- Discuss their attitude to bail compliance. Often clients will say things like, “I’d be willing to do anything, report twice a day, live under house arrest”. Ask the client how they will get to the station to report, and what their understanding of how arrest like conditions are and how long they will last for. It’s not uncommon for clients to call back in a few months and say they want to vary their bail because the conditions are too onerous;
- Advise your client how to respond in cross-examination (short of coaching them of course). For example, “if you can answer the question with a ‘yes’ or ‘no’, this would be most suitable”, “tell the truth”, “do not offer extra information”, “keep answers short”, “do not get angry or show any frustration”.
Of course, the above mentioned is not exhaustive. Calling your client to give evidence requires discretion and very sound judgment after weighing up a number of . Each and every court matter has its own flavour and requires sound judgment from a a suitably qualified advocate.
Leon Apostle is a Sydney barrister who appears frequently in CBD courts and also enjoys attending regional and rural sittings across the country. Leon can be contacted on 0410 808 885 of email, firstname.lastname@example.org for an obligation free discussion regarding your matter. Whilst Leon does accept direct access clients, for various types of matters an instructing solicitor will be required.
Disclaimer: This article is intended for research purposes only and should not replace legal advice from a competent and experience legal practitioner. The writer of this article bears no responsibility for any reliance placed on this article. Every scenario is unique and different and nothing should replace the advice and representation of a legal practitioner.