6. Taking appropriate information and instructions from the client

The following notes are a guide to understanding some of these major issues and the sorts of detailed instructions you should obtain from a client. These will likely be the points the representative will argue in the application to the Court. Please note that every application is different and that you should carefully go through the factors set out in section 18 above to work out which issues are relevant to your case and then tell the court about those issues.

 

The offence

The strength of the prosecution case, the circumstances of the offence and the maximum penalty and likelihood of a custodial penalty are all important considerations.

If the Crown case is strong, the Court may be of the view that this is an incentive for the person not to attend Court, particularly if the likely outcome is gaol. However, if the person has a viable defence (which is made clear by pointing out holes in the prosecution case) the Court may think the person will attend Court to defend their case and, in their interest, should be released to prepare their case.

 

Background and community ties

Issues you would raise here include where the accused has lived and for how long, family and community ties, the accused’s employment, and any other supports the accused has in the community.

 

Likelihood of appearance at Court

A person’s criminal record will be relevant here. You need to address any breaches of bail or failure to appear on the accused’s criminal history. If a person has no ‘fail to appears’ or breaches, this is a strong argument that the person has demonstrated they are likely to appear. The availability of a surety and how much the surety is able to put up is also a very important. If the person was using alcohol or other drugs at the time of the alleged offences but is now in a rehabilitation program, this would be a strong factor in favour of their likelihood of appearing at court and protection of the community. 

 

Protection of the community

The Court will need to make an assessment about whether the accused is likely to commit further offence whilst on bail. The accused’s criminal record is usually a central focus of this consideration. 

 

 

 

 

Protection of the alleged victims

This is of particular concern if the charge is one involving violence, including domestic violence. Proximity of the alleged victim’s place of work and residence will be important and whether or not any threats have been made or potential for unwanted contact.

 

Accused’s interests

It is very important to take full instructions from the person applying for bail in relation to how being in custody affects them and their family as these issues may persuade the Court in some circumstances to release the accused on appropriate conditions.

Some issues which may be taken into consideration include: the accused’s ability to prepare their defence, maintaining employment, family responsibilities, mental or physical health issues, conditions in custody and distance from family whilst in custody will all be relevant to this aspect of the bail determination.