5 Comments Criminal law, traffic matters, DUI, assault, theft, fraud
I wouldn't have a clue but that sounds harsh.
Isnt the aus government law bit dodgy these days poor kid, his friends....so called friends should be there too. I hope your son leaves that group when he comes out.
I'll make prayer that he's safe and can get bail.( if allah wills)
Take care and support your son, his friends turned his back on him now he needs his family...
First of all, Legal Aid is obliged to consider an application to change appointed legal representation. Whether this application is successful is another matter of course, but if you can show that the appointed lawyer/solicitor/barrister has erred under law, you would have a strong, if not airtight case to have new representation appointed.
In regards to bail and the Bail Acts of various states, there is no limit to the amount of bail applications that can be made (in most circumstances, some exceptional circumstances dictate the number of bail applications but only in rare instances).
However.... bail will NOT be granted if a previous application in the same court has been unsuccessful and there is no new evidence to present in regards to the new bail app. Even if you think the previous decision was wrong or unfair, unless you present new information or evidence to support the application, it will be unsuccessful.
You can make an application for Supreme Court bail (assuming the previous application for bail wasn't a SCB application also) whether new evidence or information is present or not. Effectively every time you apply for bail in a higher court your slate is 'wiped clean' (for want of a better term) and you can submit your information in exactly the same manner as you did in the Magistrates Court (or equivalent) and the Judge will make an independent determination as to whether bail should be granted.
Legal Aid will fund Supreme Court bail applications under certain circumstances but as it is an expensive exercise ($4000 upwards) they limit funding to those that they consider are highly likely to be successful in their application.
Given that your son was arrested while on bail, he is now in a 'show cause' situation.
Effectively this means your son must give reasons as to why he should be allowed to be released on bail, as opposed to a regular bail application where the prosecution must show reason why the accused should not be granted bail. It can be extremely difficult (but not impossible) to obtain bail while in a show cause situation.
You mention mitigating circumstances that were not able to be presented before the first bail application, this in itself is grounds for another bail application in the Magistrates (or local/county) Court.
You should approach the appointed solicitor and indicate that you wish to exercise your right to make another application for bail given the new information that has come to light and if your solicitor refuses to represent your son during said application, you should formally request a change of representation. All this would take time of course.
Obviously your son is keen to get out ASAP, so i will point out that representation is not required during a bail application, your son can present his application himself. However show cause situations are complex and best left to a solicitor. From in custody, he can make an application for bail and take his chances on the day with the duty solicitor. Obviously duty solicitors have a finite amount of time that they can spend with everyone and may not be able to give you the best representation given the limited time available.
Ideally if you are in a financial position to do so, would be to hire a private solicitor of your choosing and have them make the application on behalf of your son. It won't be cheap, but it will be substantially cheaper than a Supreme Court Bail application. You would generally be looking at around $500-$1000 for a Magistrates Court app. This would be the quickest way to get the matter before the courts with the greatest chance of success.
A good solicitor will paint your son in a positive light, will point out holes in the prosecution argument (only in a preliminary sense) and will argue for your son to be released on terms that would satisfy the court that your son is neither a flight risk or at risk of reoffending.
The fact that his only previous offence was for disqualified driving and had absolutely no similarity to the current allegations is certainly in his favour. It is always harder to obtain bail when previous convictions for similar offences are present. Also the fact that violence was not involved is another HUGE plus.
Your solicitor might offer to have your sons passport seized (if applicable), have him report to police on a regular basis or attend applicable counselling or rehabilitive programs if he was granted bail. Any attempt to reduce the risk of flight or further offences while on bail can only help in the application.
Thank you for your advise mmm_donuts, very helpfull, however now things are dragging on like you wouldn't believe.... He has now been in jail for 7months and he is still in there on remand, so can not be sent out to the farm, he is still in max. security section. His lawyer continues to drag things out and there is not a damn thing we can do about it. Nearly every month since he went to jail, she (lawyer) has gone to court and it has been defered to the next month and still no actual court date to hear the charges. All we want is for the charges to be heard and a sentence handed down so at least he knows how much more time he has to serve. This not knowing is driving my son nuts. After being sentenced they can transfer him to min. security (to the farm) to serve the rest of his sentence(if any). His lawyer now informs us that the district court has excepted the request to hear the arson and stealing charges, (now we have to sit and wait for them to give a date), and now she says that she will apply to the magistrates court to have the driving charges moved to the district courts, and have them dealt with with the arson and stealing charges. Why didn't she do this before, she could have applied to have them dealt with altogether before now, she just keeps dragging this out more and more. It is damn frustrating. Legal aid refused our request to change lawyers and we don't have the finances to get a private lawyer. Is there any way to force her to speed things up? Can we force her to drop his case, so we can get better representation? (as there are better lawyers than her here)or are we stuck with this incompetent idiot? How are legal aid lawyers paid for there duties? if they are paid for every court appearence, then this may explain why his case has gone to court so many times and could explain a lot of hold ups with my sons case as well.
Donuts is pretty spot on with his assesment of your situation
Beyond hiring a lawyer which you cant afford and representing himself which he should never do there is little you can do. Legal Aid lawyers can be private or public but if appointed by them are usually public.Im not sure if your lawyer is private lawyer or a public servant but either way its hard to change them as legal aid wont spend money on changing lawyers just because you are unhappy with the results.
Have you spoken to Legal Aid, they would have reviewed the case when you asked for a new lawyer and if they did not act on your request they must be satisfied with the way they are conducting the case, but your clearly not. Did they give you reasons why they wont change lawyers?
Delays are part of the legal system and its not always the lawyers fault.
If he pleads innocent then there are always delays.
Speak to various free agencies and see if they can help with advice, citizens advice bureau and various free duty lawyers in law societies may review your circumstances and tell you the best way to go.
rambler1 2009-06-26 16:33:45
Queensland. My son is pleading guilty in the 3 charges against him, arson, stealing and driving charges.
The lawyer informed us that she was applying to have all charges heard in the district courts as one, and we now find out she only applied for the arson and stealing charges to go up and she says she will now apply to have the driving charges taken up, this could take another 4 to 6 weeks, and what happens if we get the date for the district court before she can get the chance to bring the driving charges up?
In the last 7 months she has appeared on behalf of my son 9 times, and each time she has adjourned it to the next month.
The prosecution have been ready since February and so have the defence.
Is there anything we can do the speed things up, so she stops dragging it out?
The court transcripts will confirm what she has been doing, so we have proof, but is there anything we can do to stop her from delaying proceedings?
With my son being in prison on remand, he is kept in max. security, when he is a low risk prisoner and should be doing his time in min. security (the farm), but because of prison procedures even though low risk, prisoners are not transfered to the farm until they have been sentenced.
She also refuses to re-apply for bail for him. He is not a bad person, he was just in the wrong place at the wrong time and because he was on bail when the other things occured, he was sent to jail.