Advice to counsel filing bail applications/variations and CMMs

The ADLS Criminal Law Committee has been asked to draw practitioners’ attention to a number of issues in relation to bail applications and variations, which were discussed at a recent Executive Judges’ Liaison Meeting.

Opposed bail applications

Currently, many opposed bail applications are being made prematurely, especially those that engage section 12 of the Bail Act 2000. As a result, judges have insufficient verified information to properly consider the merits of an application and to provide a fully reasoned decision on it.

Bail applications have a much greater chance of success if they are made with submissions and affirmations filed on behalf of the applicant. Counsel should endeavour to persuade clients that more preparation is required to present a good case for bail. It is much better to wait a few days before proceeding with an application; rather than to not succeed and face a lengthy wait in remand until trial.

Bail variations

At present, bail variations are being put into the list for consideration without sufficient notice, either to the prosecution or to the court. Often, emails are sent to the Registry asking for a matter to be called at 10am that day for a bail variation. Prosecution therefore does not have time to check the proposed change of conditions, and the court file may not be ready alongside the remand file.

Accordingly, the court now requires a formal memorandum signed by counsel, which should have at least three lines (or, preferably, two or more paragraphs) stating why the variation sought is urgent and what is required. The memorandum will be rejected at the counter if these conditions are not complied with.

If defence counsel has sent the prosecution a request for consent to bail variations and has not had a response, then that should be mentioned in the memorandum. Counsel may find it easier to use the standard form for variation of bail for this purpose, as this forms sets out all matters that must be covered, and provides for a response by the prosecution.

If there is no opposition from prosecution, then applications for bail variations may be done on the papers through the Registry. Once notified by the court that the variation has been granted, the client should then attend the relevant court to sign a new bail bond.

Case Management Memoranda (CMMs)

Counsel should file a summary of facts when filing CMMs with the court. The more information that can be included in the CMM, the greater the benefit to the defendant, as this can help influence the course of the trial from the outset. Such information should include anything that will assist in identifying what questions and facts are and are not in issue, for example whether the nature of the drugs are contested, etc.

The ADLS Criminal Law Committee is happy to receive suggestions for practical articles on relevant topics. Please contact committee.secretary@adls.org.nz.

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