PRACTICAL ADVICE FOR LAWYERS ATTENDING POLICE STATION AND COURT WATCH-HOUSES AND MAKING BAIL APPLICATIONS BEFORE THE MAGISTRATES COURT

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1 PRACTICAL ADVICE FOR LAWYERS ATTENDING POLICE STATION AND COURT WATCH-HOUSES AND MAKING BAIL APPLICATIONS BEFORE THE MAGISTRATES COURT This article relates to a CLE which was conducted on bail applications in the magistrates court. It also incorporates some information about lawyers attending on police stations and watch-houses. It was written at a basic, practical level, aimed at all lawyers at Legal Aid, whether in the criminal practice or not. As Legal Aid lawyers are aware, there is no grant of aid to attend on clients in police stations or the watch-house. However, there may be exceptional cases where it is approved by Legal Aid as being necessary. Alternatively, a client may be held at the watch-house or at a police station and an attendance on them is required to sign documents or take instructions on an appeal. The information in this article may assist in these situations. Additionally, the material on legal visits to police stations at the time of a client s arrest may be of interest to criminal lawyers considering ROI s which are claimed by a client to have been made under duress or inducement or other police conduct at the time a client is arrested. Police stations A person who is at a police station can be in one of three positions: Arrested for an offence; Detained or arrested for questioning; or Voluntarily assisting police with their enquiries The police who are investigating a criminal complaint will have brought a person back to a police station to conduct a recorded interview about the alleged offences and/or to hold them while further enquiries are made. A person has a right not make any comment other than confirming their name and address. A person also has the right not to be taken anywhere unless they are arrested or lawfully detained. However, your advice to clients should always be that while they are entitled to be told what their status is and to ask if they are allowed to leave, they should be careful to obey any police direction and not argue about their status they can best assist themselves by remaining silent and obeying police directions until they have received legal advice. The outcome of a person being held at a police station will be that they are: Released without charge (at least for the moment); Released on a notice to appear ; Charged released on a bail undertaking from a senior police officer at the station (normally only done in regional areas where there is no operating court house) Taken to a watch-house to be charged (and usually then taken before the Magistrates Court, but can be released on police watch-house bail) When you are informed that a client is at a police station or the police have detained them at their house, the first step is usually to make a call to the police and request to speak to your client. If 1

2 you are told that your client is being interviewed, you should request that the interview be suspended immediately and your client brought to the telephone. You must be polite, but insistent on this point and inform the police officer that you are taking notes your requests and the time they are made. You should request the names of any police officers you are speaking with and should provide them with your full name and the firm you work for. You are lawfully entitled to tape-record any telephone conversations you have with the police, and this can act as a permanent record of the conversation if there is a dispute. You do not have to inform the police officer that you are taping the conversation and it is sometimes seen by police as confrontational to do so. It is preferable simply to say that you are taking notes of the conversation. If you intend to go to the police station, you should ask for an undertaking that your client will not be questioned further prior to your arrival. This right is provided for under the Police Powers and Responsibilities Act 2000 (s.249(3)). However, it is a right that belongs to your client and so the police can claim that your client rejected your advice to wait for you to arrive; and instead decided to speak with police. You can also ask that your client confirm in your hearing (over the telephone) and in the hearing of the arresting officer that he or she does not wish to give an interview. Again, this decision potentially can be revoked by your client and once your telephone call has finished, the police will usually ask your client again if he or she wants to give an interview. Most experienced criminal lawyers regard attending at the scene or at the police station as essential in serious criminal matters. Being at the police station is the most effective way to ensure that your client is released quickly or charged and brought before the court. Without you actually being there, police will normally take much longer to process the matter. Your client will also be asked more than once to give a recorded interview. Without you being there most clients tend to give a record of interview even if they have been advised not to by their lawyer. When you arrive at the police station, you should request an empty interview room to speak to your client. You should then speak to the client briefly and get an outline of what has occurred. Then by speaking with the arresting officer, you should be able to get some information about the possible charges and the facts of the matter. You will usually be told some information about why your client is at the police station. However, the police do not have an obligation to tell you anything other than the custody status of your client which requires only a very general outline of the charges on which your client is being held. You may be faced with quite vigorous requests for your client to give an interview. It is rarely in a client s interest to give a police interview. Unless you are an experienced criminal lawyer and fully across the facts of the case, you should normally advise your client not to make any comment. Promises by police that your client will be released if he or she gives an explanation, should be treated with great caution. You should not discuss your client s instructions in any way or make suggestions about potential witnesses. Police regard it as their duty to treat your client s statements and those of his or her witnesses sceptically and will not regard them in the same light as prosecution witnesses statements. You cannot and should not attempt to conduct your client s defence in the police station. Your role is to provide confidential advice to your client and then expedite their release from the police station or transfer to the watch-house and/or magistrates court. If the police do not have sufficient evidence to charge your client, he or she will be released without charge. You should warn your client that this could change at any time and they could be rearrested. If the charge is of a minor nature or there is no risk of re-offending and not appearing in court, then the police should issue a notice to appear rather than taking your client to be charged at the 2

3 watch-house. If possible, you should request that your client be issued on a notice to appear, as it is the quickest way for your client to be released from custody. A notice to appear resembles a parking ticket. It lists the offences to be charged and a court, time and date when your client must appear personally. This date is normally in two weeks time, but can be varied with the consent of the client. For example, if an interstate visitor who is charged with a minor offence wants to attend court the next day to plead guilty, then the police may assist in this regard, if they have time to complete the paperwork. Once a client has been given a notice to appear, he or she should be immediately released. It also means that on their first appearance in court, bail should not be opposed, unless they are alleged to committed more offences in or more serious charges have come to light in the meantime. Your client may also be issued with an identifying particulars notice. When a person is charged with any offence with a potential sentence of one year or greater (or an offence under certain other Acts, in practice - most offences), then they can be required to give their fingerprints and photograph to police. The identifying particulars notice requires your client to attend at a nominated police station to be fingerprinted and photographed. It is an offence not to comply with the notice. If the police regard the offence as too serious for a notice to appear, then they will take your client to a watch-house to be charged with the alleged offences. Watch-Houses Watch-house is the rather old fashioned name for the prisoner holding cell complexes which are connected to magistrates courts. Each suburban magistrates court in Brisbane (such as Inala, Petrie or Redcliffe) has a watch-house and people who are arrested in that magistrate court s jurisdictional area are normally taken to that watch-house on weekdays if the police officers decide that they are not prepared to place the person on a notice to appear. On weekends, these watchhouses do not operate (because the courts they are connected to are closed) and so people are taken to the Brisbane City watch-house at 240 Roma St. This is also sometimes the case with more serious charges, even from outlying areas where the arresting officers are based at Police Headquarters at 100 Roma St. When the police take a person to a Watch-House, they are first charged by the Charge Sergeant based on charge sheets which the arresting officer has prepared back at the police station. The person is then either: granted watch-house bail by the watch-house senior sergeant; brought before a magistrate (if the court is sitting); or held in custody overnight to be brought before a magistrate the next morning the court is operating. The watch-house senior sergeant effectively has all the power to grant bail that a magistrate possesses (s. 7 of the Bail Act). However, they do not have to exercise that power to grant bail, unless the person cannot be brought before a magistrate within 24 hours in which case they must consider the issue of granting bail. Most watch-house sergeants will not grant bail unless they are specifically asked to do so by the arresting officer. While you have the right to make a bail application to the watch-house keeper, normally it will be unsuccessful unless it is supported by the arresting officer because the watch-house sergeants prefer to leave the decision to the magistrate the next morning. Making a bail application to the senior sergeant in the watch-house and it being refused, in no way affects the right to make a bail application before the magistrate. 3

4 This article will explain the procedures at the Brisbane city watch-house The procedures at other magistrates court s watch-houses will differ slightly from the much larger Brisbane City watchhouse, but the principles are the same. The Brisbane city watch-house is no longer the old building on Hershel St (which is now a new gym), but a state-of-the-art court and watch-house building at 240 Roma St incorporating the fresh arrests court, traffic court, video link court to the remand prisons and the holding cells. Solicitors are entitled to gain access to prisoners in the watch-house. If you are told that a person has been arrested and taken to the Brisbane city watch-house and it is not a weekday morning or Saturday morning, then this will normally mean that your client will be remaining in custody overnight. The exception to this is if the arresting officer has decided that bail conditions are required, but will be asking the watch-house sergeant to release your client on watch-house bail. If your client is not being immediately brought before the court, you need to go to the top level of the watch-house. To do this you have to go to the back entrance of the watch-house on Garrick St. There is an intercom buzzer and a small lobby. You need to state your name, the fact that you are lawyer and that you want to speak to your client. You will then be buzzed into the lift lobby, the lift doors will open and you will be taken up to the top level of the watch-house. On exiting the lifts you are in a larger lobby with a set of interview cells on one side and the public reception desk on the other side. Non-lawyers are normally not allowed into the watch-house and the identification requirements are the same as at a jail - suitable photographic ID and proof of status as a lawyer or articled clerk (ie. Supreme Court ID card, business card, or a letter on firm letterhead for articled clerks). Your client will then be brought into one of the visits cells and the interview will be conducted in the closed interview cell which has a glass wall and a speaking grill between you and your client and glass doors at the front and back of the cells. Normally at this time, you are only able to advise your client that they will brought before a magistrate the next day, either for a plea of guilty if their instructions and the nature of the charge allows that, or for a bail application. You may wish to use this time to take full instructions for the court hearing the next day or you may prefer to speak to them more fully before court the next day. Prisoners at the watch-house who are being brought before Magistrates Court 1 (the fresh arrests court) are taken to the cells downstairs at approximately 7.30am. Prior to 7.30am, you will need to attend the back of the watch-house as described above. After 7.30am, but before the court complex opens to the public at 8.30am, you need to go to the 240 Roma St Court complex police prosecutors office which is 20 metres to the right of the main public entrance. There you will need to produce identification and you will be allowed access to the interview rooms to speak to your client to prepare for the court hearing. Once the courts are open to the public, you can gain access to the cells by going down the corridor past Court 1 and speaking into the buzzer on the wall there. However, you will still need to speak with the police prosecutors to obtain a copy of the police materials that they are relying on court that day. This information is usually the police summary of facts ( known as the QP9 ), client s criminal history, if any, and any objection to bail affidavit which the police have prepared (usually only done in relation to serious offences). You will need to read the police material to your client and get his or her instructions on the charges so that you can advise them on pleading guilty or seeking an adjournment and making an application for bail. 4

5 Bail applications The Magistrates Court is empowered to grant bail to any person other than those charged with murder, treason or piracy (for these three offences, only the Supreme Court can grant bail). A person is presumed to be entitled to bail unless they are in a show cause situation. A person is in a show cause position if they are alleged to have committed an indictable offence whilst on bail for another indictable offence, or to have committed an indictable offence while using or threatening to use a weapon or explosive, or to have breached a previous grant of bail. However, in a practical sense, a magistrates court bail application is always about satisfying the presiding magistrate that your client is not an unacceptable risk of failing to appear at court, reoffending or interfering with prosecution witnesses. If the police prosecutor objects to bail, then even if your client is not in a show cause position, you will have to have sufficient instructions and material to satisfy the magistrate that your client is not going to flee and is not going re-offend whilst on bail. Keith Tronc and Ian Dearden s excellent book Advocacy Basics for Solicitors (1993, The Law Book Company) explains all the law relating to making a bail application in the magistrates court and provides an extremely useful checklist for taking instructions on a bail application. It also explains the procedure of making a bail application. The leading case about the meaning of unacceptable risk under the Bail Act is Williamson v DPP ((CA(QLD) Appeal No of 1999, 27/8/99 unreported). This case is very useful is showing what factors, such as residence, sureties, reporting to police and ties to the jurisdiction, can convince a court to grant bail in difficult circumstances. The most important aspect of making a bail application is to read the prosecution material carefully and to take your client s instructions on issues relevant to bail. A checklist of relevant factors are: history of residential addresses, employment (including length of employment and responsibilities), family responsibilities, business or financial responsibilities, property interests in the jurisdiction, prior convictions (take instructions on the facts of any recent offences or outstanding charges and any breaches of bail), ability to report to police and contact details for any potential sureties. The next most important aspect of appearing on a bail application is to go into court and speak to the prosecutor (if you have been able to attend the police prosecutor s office and spoken to them prior to court, so much the better). By briefly explaining your client s application for bail, the prosecutor may decide not oppose bail. The prosecutor may consent to bail on your client s undertaking without conditions, or with certain conditions such as no contact with witnesses or reporting to a police station during the term of the grant of bail. If the prosecution consents to bail, you will not have to make an argued bail application. However, you should always have taken full instructions from your client because the court may want to hear some further information prior to granting bail, even when the police are consenting to bail. If the police are opposing bail, the procedure is as follows: you first apply to remand the matter for a further mention- to provide legal advice on the charge (summary or indictable charges), set the matter down for a trial before a magistrate (summary charges and certain indictable charges), or to a committal mention to require a brief to be prepared (indictable charges). If in any doubt about what step to take, then request a mention in the same court in one or two weeks, so that that decision can be made. You then inform the court that you are making a bail application. If your client is in a show cause position (as set out above) then you must speak first. If your client is not in a show cause position, 5

6 then you should sit down and the prosecution will outline their objections to bail and you can use the information you have taken from your client to respond the police objection to bail. You should remember that you are not running a trial on the charges, but rather convincing the Magistrate that your client is a person to whom bail should be granted. If your client is granted bail, then they will be taken back into the watch-house and released after signing their bail undertaking. This takes about half an hour and your client will be released from the back door of the watch-house on Garrick St. If your client is refused bail, then you are able to speak with them in the cells afterwards to take instructions on issues related to the criminal charges or to in relation to a Supreme Court bail application. 6