Most people have never been in a situation where a loved one is held in custody and they must assist to prepare a Bail Application on their behalf.
Often, when a person is first introduced into custody, they are held in ‘Police Custody’, either in the Melbourne Custody Centre or at a Police Station. The duration of their incarceration in ‘Police Custody’ can extend from hours to (in relatively rare situations) weeks. When they are in ‘Police Custody’, they have less access to telephones and visits and, are more likely to be moved to accommodate the movement of other people in the system. This makes the position of relatives and loved ones very difficult when it comes to preparing a Bail Application.
However, this Guide should assist in gathering the relevant documentation to get a Bail Application on quickly.
Charge Sheets, Remand Summary & Priors
No practitioner can prepare a Bail Application without having the charge sheets, remand summary (if one has been prepared) and the priors (if there are any) of the client. The charges dictate what the test for Bail is. The Remand Summary outlines the alleged facts relied upon by the Police. Your loved one’s prior convictions also affect the test for Bail that is applied and informs the Court in relation to unacceptable risk. If you can, get access to these materials through your loved one when you visit. Often, these documents will be placed in their ‘property’ whilst they are in Police Custody. This means that they are placed in plastic property bags, kept separately from the person until they are introduced into a Corrections facility. Your loved one may be able to instruct the staff holding the property to release the materials to you. At the very least, you should try and obtain the name of the Informant in the matter (this is the Police member who charged the person), their Victoria Police number and their station. This will allow your lawyer to contact the Informant to obtain the information.
It is also very important to be advised whether the person was on bail at the time of their arrest and remand, as this can give rise to an additional charge, can affect the test applied to the Bail Application and may pose an additional layer of complexity if an Application is made to revoke the pre-existing bail.
If your loved one is no longer in Police Custody and is housed in a corrections facility, such as the Metropolitan Remand Centre, they will have been given a corrections number (a CRN). If we can obtain this number, we can arrange a video conference or visit with them.
It is important that we are provided with the following information:
- The client’s date of birth;
- Any medical conditions suffered by the person (whether physical or psychological) and any medications they are prescribed. If they have a treating medical practitioner, please provide their name and contact details. Also, please advise whether there are any substance abuse issues that might be affecting them in custody;
- The contact details for their support network: spouse, parents, psychologist etc.
- A summary of their personal circumstances:
- Relationships: Are they married? Do they have children?
- Are they Indigenous or a child?
- Do they have any language problems or difficulties (i.e. deafness or blindness) that makes communication particularly difficult;
- Background: A summary of their upbringing, education, family background, support system;
- Work history and current situation: Are they employed? If so, where and in what capacity? Does their employer know of the criminal matter? Will they offer them back their employment if they are released? Can they attend Court or confirm this in writing? What would their hours of employment be and would they be required to work?
- Community Connections: What is the person’s community network? Are they part of any community organisations which strengthen their ties to the community?
- Does the person have a passport? If so, can you access it so that it can be forfeited to the Court?
- Prior matters: Do they have any prior matters and if so, what are the circumstances?
The Court will want to be advised of what arrangements will be made for the person if they are granted bail. These arrangements are always dependent on the particular circumstances applicable to the person.
- Accommodation – Where will the person be living if they are released and who will they be living with? This is probably the most important consideration. If the accused person is charged with family violence offences, there will be an intervention order in place prohibiting them from returning to the home of the alleged victim. This means that they cannot live at their previous address. Similarly, if the person is accused of committing serious drug offences or offences whilst under the influence of drugs and/or alcohol, that person may propose to go to live with family (for the additional supervision and support) or to live in a rehabilitation facility. If they are going to live with family, we need to know who lives there and what their routine schedule is. The Court may want to know whether there is a person home during the day to supervise the person. We will also need an assurance from the family (that will be given in evidence before the Court) that they will report the accused to the Police for breach of bail if the situation arises. If the person is proposing to go a rehabilitation facility, they will need to be accepted into such a centre before a Court will release them on bail. This means that they will need to be assessed and may also need private health insurance that covers such a service.
- Surety – Is there a surety available, either in cash or property? A surety is a financial asset that is placed at risk, contingent on a person’s bail. If a surety of, for example, $10,000.00 is set for a person’s bail and deposited by the accused’s mother, if the accused fails to attend Court in compliance with their Bail Undertaking, that money will be forfeited. The rationale behind the surety system is to place a personal incentive on the accused person to comply with their bail, because their loved one will lose their asset if they fail to comply. It also places an incentive on the surety to report the accused person for a breach of their bail (such as failure to reside at the prescribed address), if they are concerned that they will fail to thereafter attend Court. If the surety is property, you will need to provide the most recent rates notice and evidence of the amount owing on the property (i.e. a most recent mortgage statement or the certificate of title if the property is unencumbered).
- What will the nearest Police Station be and will they have the capacity to attend to report? We will need to know the nearest Police station to the accused’s address, its hours of operation and also whether there are any concerns with the accused being able to attend to report. It may seem like an obvious consideration. However, you would be surprised by the number of times an accused person is freed on bail and then it turns out that the Police station to which they must report is actually a fair distance away, there is little public transport and the accused cannot drive. This makes reporting unworkable and sets the accused up to fail, so we really need to know this before the Application is made.
Remember, when in doubt, ask your lawyer. Any competent and diligent practitioner will want to be completely informed before appearing in a Bail Application for a client. You also don’t want to make a half-hearted or rushed Application to the Court. If the person is refused Bail as a result, they either have to present new facts and circumstances in the Magistrates’ Court or appear in the Supreme Court on a subsequent Bail Application.
That said, there are also considerable delays in the Bail list. It is not unusual for a person to wait for weeks before a Bail Application comes on in Court. Accordingly, if you have a loved on in custody relying on you to assist in the preparation of their Application, be organised and engage a lawyer immediately. The lawyer can then obtain the closest possible date and then prepare the Application with you.