A Police Perspective on Bail in South

A Police Perspective on Bail in South

Australia

Jonathan Tuncks

Project Implementation Control Officer

South Australia Police Department

raditionally police officers have viewed the granting of bail to alleged offenders with

reservation, particularly where serious charges are involved. It is true to say that

as a rule, they have been less sympathetic to the reasons given by accused persons

in bail applications than have members of the Judiciary.

To appreciate why this is so it is necessary to understand that the police officers role is

'the protection of life and property, preserving the peace, and detecting and apprehending

offenders.'

Police officers are, and historically have been, the de facto representatives of the

interests of victims of crime and of witnesses. This relationship has been reinforced by

current Government initiatives regarding victims of crime, especially Section 10 of the Bail

Act 1985 (SA) which enshrines two of the seventeen principles in relation to the rights of

victims of crime and takes into account concerns of witnesses.

It is with these concerns in mind that this paper has been prepared in relation to the

police perspective on bail.

It is too simplistic to expect police to have the same cool, calm, objectivity of the

Judiciary, Lawyers and indeed Police Prosecutors and Bail Authorities. Factors such as the

type of crime, the circumstances of the victim, his relationship with the offender, and the

emotional state of all the parties involved will influence the response of police at the bail

application.

Victims of crime are always witnesses when it comes to the resolution of the Court

hearing. Conversely it is true to say that witnesses (in some instances) could (depending on

circumstances) be classified as quasi victims. For the purposes of this paper witnesses are

classified under the heading of victims.

In the investigation of crime, police officers very often develop close relationships with

victims. Whilst not affecting the ability of officers to conduct investigations, either immediate

or protracted, these relationships lead to identification with the victims and his interests.

There is little wonder, given all of these circumstances that investigators empathise with

victims of crime and as such will attempt to represent their interests at bail hearings.

One of the primary concerns of an investigating officer is to ensure that the interests of

victims and witnesses are maintained. It is the experience of police officers today that many

members of the public do not want to get involved in criminal matters (particularly where

they are not directly concerned, for example witness to a crime). Whatever motivates the

thoughts of the witness the majority of responses from them is to 'not get involved' and not

assist in investigations if it can be avoided. Two reasons (amongst others) for this appear to

be:

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n Fear of some sort of reprisal by the accused (either real or otherwise); and

n Apprehension concerning court proceedings.

The investigator must help to ease these fears (whether they are based on a false

premise or not) in order to convince victims of crime to participate in the legal process, in

other words to give evidence in any Court proceedings. If he fails to do so and the victim

refuses to give evidence, the case may well be lost and the offender go free without the

matter going to trial.

One of the primary functions of the Police Department is to investigate. In order to

achieve the ultimate goal of any investigation, that is to bring the offender to justice,

investigators must have the co-operation of victims of crime.

Bail, and the conditions imposed therein can greatly affect a victim's state of mind,

particularly where they perceive their personal safety (or that of family/friends) is involved.

Police are of course aware of the presumption of innocence, and that bail is important

to the accused as it affects his liberty. These two factors are not taken lightly.

It comes down to a matter of balance. The rights of the victims of crime, the interests

of society as a whole, and in some instances the welfare of the alleged offender, all have to

be given careful consideration to achieve the right balance where there is a dispute between

the prosecution and the accused as to whether bail is granted or denied.

Let us know turn to the role taken in a bail application by an investigating officer. A

common scenario for police is that a crime occurs which necessitates immediate

investigation. It requires, on many occasions, police officers to become involved in

situations which are very stressful for victims. It is vital for investigating officers to remain

calm and objective when confronted with this situation. Reassurance has to be imparted to

victims. If not forthcoming, their confidence in the police (and for that matter, the entire legal

system) is lost and possibly along with it, their co-operation. This would of course be highly

undesirable under any circumstances.

The resultant impact on police attitudes to bail applications is fairly predictable. If there

are real fears held by victims for their safety (this includes intimidation by threat or implied

threat) it will be imparted to the investigating officer by the victim.

Police General Orders require substantiation of any opposition to Bail. Section 9 of the

Bail Act 1985 allows for a Bail Authority (not being a member of the police force) to take

evidence on oath from the applicant or any other person who may be able to furnish

information relevant to the determination of the application. This evidence may be subject to

cross examination. Under these circumstances it is unacceptable for police to indulge in

unwarranted opposition to bail.

It is not unknown for the Police Prosecutor to override an investigator's reasons for

objection to bail. This occurs where the prosecutor views the reasons for objection to bail

as insufficient to warrant opposition at the bail application.

Whilst it is accepted that prosecutors do not act for victims as does a lawyer for a

client, they should be in a position to put forward any relevant matter where the interests of

victims are concerned.

In order to be able to fulfil that requirement, all relevant information concerning the

victim must be gathered by the investigating officer. Taken in that context, the investigating

officer acts as a representative of the victim/s.

Section 10 of the Bail Act 1985 allows Bail Authorities to consider a variety of factors

when assessing the unsuitability of an applicant for bail. Subsection (c) specifically requires

the authority to consider 'any need that the victim may have, or perceive, for physical

protection from the applicant'.

The importance of this is reflected in the following incident of an attempted murder

incident in South Australia. The circumstances of the incident were:

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During the evening a dispute occurred between neighbours over the level of noise

coming from a house. During the dispute a person was shot. At a subsequent bail hearing

bail was opposed on the grounds of the seriousness of the offence.

Bail was granted, and restrictive conditions were set. These included where to reside,

with whom, and where not to go. In essence it was akin to incarceration at the guarantor's

home. In the bail hearing the accused (represented by his Solicitor) agreed to the conditions

of bail.

Two witnesses were present. Both were female and both made allegations of a sexual

nature against the accused and were in great fear for their lives if the accused was granted

bail. They felt that their views were not presented to the Bail Authority forcefully enough

and subsequently felt abandoned when bail was granted.

This example has not been cited to judge the merits of the Bail Authority's decision.

What it does demonstrate however, is the requirement to strike a balance between the rights

of the accused and those of the victim. The Declaration of Rights of Victims has been

implemented to assist victims of crime. Insofar as the victims in this particular case were

concerned their rights had been ignored. The potential for diminished co-operation then

became a real factor in the investigation.

Aside from the aspect of the rights of victims of crime with respect to bail, it is pertinent

to make some remarks in relation to the Bail Act.

First and foremost it is generally noted by all police officers to be one of the 'better

Acts'. A point worthy of mention, is that there has been little controversy with respect to its

operation.

Police officers generally accept all legislation as necessary, but rarely provide any

accolades as to its worth. In this instance it has been recognised as an improvement over

the procedures in existence and flexible enough to deal with most circumstances.

Examples of this are:

n the process of bail is now considered less controversial for police;

n the process developed for bail is formalised. It is necessary to record each step

in the process, requiring each decision to be justified. In this age of

accountability it reduces the likelihood of criticism of police as reasons for

opposition to bail have been reduced to writing. If bail is refused the accused is

at least provided with defined reasons as to why;

n there are guidelines for opposition to bail as mentioned previously the Bail Act,

1985 provides guidelines for the prosecution opposing bail. The Act has

collected case law principles within legislation. Previous Acts did not do so and

those guidelines had to come from examining a broad spectrum of case law.

The Government, and in particular the Attorney General, adopted an approach of

participation by all agencies which would be involved in the day to day administration of the

Act. Prior to the proclamation of the Act a working party was convened to oversee the

administrative procedures developed for its implementation. That working party examined

such aspects as: design of forms for the Act; the development of a Bail Leaflet (multilingual)

and a procedure for ensuring applicants receive it; procedures for recording reasons

for refusing bail; and the mechanics of telephone reviews, amongst other matters.

The final recommendations and subsequent implementation of the administrative

procedures aided the relatively smooth proclamation of the Act.

In 1986 the Office of Crime Statistics conducted a review of the Bail Act. As a

consequence The Administrative Working Party was re-formed and considered the

recommendations with respect to amending administrative procedures. The involvement of

all of the agencies concerned with the operation of the Bail Act has provided the Police

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Department with the opportunity to participate in the preparation and subsequent

management of legislation.

This approach has assisted in the introduction of the Act into the day to day operation

of the Police Department, enabling dissemination of information to occur at an early stage.

This allowed for the development of documentation which was used to instruct police

officers in the application of the Act.

A continuance of this approach by government will help to ensure the smooth

implementation of further legislation in this state.