Bail

Bail

1. Introduction

All persons in Australia who are charged with a criminal offence are presumed innocent. Since an innocent person should not be detained, people who have been arrested can apply to be released from custody on bail until their guilt is determined. The decision to grant or deny bail can be made by the police and by courts. Occasionally, the law does not permit bail to be granted.

Bail is a written promise (also known as an "undertaking") to appear in court at future court proceedings. A person released on bail may be required to obey certain conditions of release. Bail can be revoked if a person who has been released on bail fails to appear in court or violates some other bail condition. When bail is revoked, the accused is returned to custody until the case is resolved or (less commonly) until the accused is again released on bail.

Every state in Australia has a law that governs bail. Those laws authorize certain persons to grant bail, identify factors to consider when deciding whether to grant or deny bail, create procedures for bail applications, and discuss the conditions of bail that can be set. Examples of laws governing bail include:

VIC: Bail Act 1977
NSW: Bail Act 2013
QLD: Bail Act 1980
WA: Bail Act 1982
SA: Bail Act 1985

This eBook provides a general overview of how bail works in Australia and how an arrested person can apply for bail. It is meant to provide helpful information, not legal advice. Whether bail can or likely will be granted in an individual case depends upon a variety of facts. Those facts are different in every case. You can only obtain legal advice about bail in your case by explaining all those facts to a lawyer who is familiar with the bail laws in your state or territory.

2. Purpose of bail

Bail is primarily intended to assure that persons who are released from custody will appear in court to face criminal charges or to be sentenced. Granting release on bail respects the presumption of innocence by allowing the accused to remain free from detention until guilt is proved beyond a reasonable doubt. At the same time, conditions of bail are often imposed to protect the public while an individual charged with a crime remains in the community.

There is an obvious tension between the presumption of innocence and the use (or denial) of bail to protect the public. The public has no reason to fear that an innocent person will commit crimes if that person returns to the community. As a practical matter, however, communities worry that persons who have been charged with a crime may pose a risk to the community, notwithstanding the presumption of innocence. In recent years, state legislatures have paid less attention to the presumption of innocence and more attention to the public's fear of crime. That has made bail more difficult to obtain, particularly for persons accused of serious crimes.

3. Eligibility for and entitlement to bail

Most individuals who are charged with a crime are eligible for bail. In some states, certain people are entitled to bail, although that entitlement is not as common as it was in the past. When a person is not entitled to release on bail, the person who decides whether to grant or deny bail must weigh the factors discussed in section 6 of this eBook.

New South Wales is an example of changing attitudes toward bail entitlement. The former law (Bail Act 1978) created a nearly unqualified right to bail for lesser offences. It also created a presumption in favour of bail for most offences other than certain violent offences, serious drug charges, and breaching bail. The current New South Wales bail law (Bail Act 2013) replaces the presumption in favour of bail with a test that measures risk. It also limits the entitlement to bail to certain summary offences and to offences that can only be punished by a fine.

Other states, including Queensland and Victoria, continue to presume that bail should be granted for less serious offences, but allow bail to be refused if there is an "unacceptable risk" that the accused will abscond, endanger a victim, interfere with witnesses, or commit a new crime. With regard to less serious crimes, the prosecution generally bears the burden of proving the existence of an unacceptable risk. When certain serious crimes have been charged, however, the accused must "show cause" why he or she should be released on bail. In addition, bail in Victoria can only be granted in "exceptional circumstances" if the accused is charged with treason, murder, or a serious drug offense, or if the accused is awaiting sentencing on another offence.

4. Who decides whether to grant bail?

In many cases, the initial decision to grant or deny bail is made by the police. If the police arrest a person on a warrant, however, they cannot grant bail if the warrant excludes the granting of bail by the police. In some states, the police are not authorized to grant bail for certain offences (such as murder). After an accused appears in court, the police lose their power to set bail.

In Victoria, a member of the police above the rank of sergeant must decide whether to grant bail unless the arrested person is brought before a bail justice of the Magistrate's Court promptly after the arrest is made. If the police cannot bring the arrested person to court within 24 hours, the police are usually required to release the accused on bail. However, bail must be denied if the arrest was for certain crimes specified in the Bail Act and may be denied if there is an unacceptable risk that the arrested person is likely to abscond, to intimidate a witness, to harm someone, or to commit a crime if released. The law in Queensland is similar.

In Western Australia, the police must make an initial bail decision in most cases whether or not the accused applies for bail. The police lack the power to set bail in certain cases. In every case, if an arrested person is not released on bail, that person must be brought before a court official "as soon as is practicable." In South Australia, if the police do not grant bail, they must bring the accused to court no later than 4:00 p.m. on the day following the arrest. If that cannot be accomplished, the accused can seek release on bail by contacting a designated magistrate via the telephone.

If bail is denied by the police or if the arrested person is taken to court without making a bail decision, bail will be decided by a designated court official, such as a bail justice of the Magistrate's Court or a justice of the peace. If a serious indictable offence is charged, the Magistrate's Court may lack the authority to set bail. In that case, the accused may need to apply to the Supreme Court for bail.

5. Variance and enlargement of bail

Bail granted by the police is commonly known as "watch house bail" or "police bail." When a person released on "watch house bail" appears in court, the accused can apply to change (or "vary") the conditions of bail that were set by the police. In some states, bail needs to be extended (or "enlarged") or it will expire at the end of the court appearance. An accused who has been granted "watch house bail" may therefore need to be apply for enlargement of bail at his or her first court appearance. Applications to enlarge bail are routinely granted as long as the accused faithfully appears in court and has not violated any bail condition.

6. Criteria for granting or denying bail

At one point, state laws presumed that bail should be granted to persons accused of all but the most serious crimes. Over time, state legislatures eroded that presumption by adding to the list of crimes for which the presumption does not apply.

Bail will generally be refused if there is an "unacceptable risk" that the arrested person, if released on bail, will:

  • Commit a new offence;
  • Endanger victims or other members of the community;
  • Interfere with witnesses; or
  • Fail to appear in court.

If the risk can be mitigated by the imposition of bail conditions, bail is more likely to be granted. It probably will not be granted if no conditions can be imposed that would make the risk "acceptable."

Whether a risk is "unacceptable" is largely a judgement call. To make that judgement, police and the courts will generally consider:

  • the nature of the offence;
  • the strength of the evidence against the accused;
  • whether the accused has a place to live, a job, or children;
  • the accused's criminal record, if any;
  • the accused's compliance with bail conditions in the past; and
  • whether the accused can deposit money or provide a surety.

7. Conditions of bail

Requiring the accused to post money is a common condition of release in many states. The posted money is generally returned at the end of the case but it can be forfeited if the accused fails to appear in court or violates other bail conditions. As an alternative to requiring cash to be posted, the court may require the accused to promise to pay money if bail conditions are breached or to provide an acceptable surety or guarantor (another person who pledges to pay a sum of money if the accused does not appear in court).

Requiring the accused not to commit a new crime is a standard condition of bail. Other conditions might include:

  • Having no contact with specified people
  • Staying away from specified places
  • Abiding by a curfew
  • Living at or spending every night at a specified address
  • Avoiding any place where liquor is served
  • Reporting to the police station at designated times
  • Participating in medical or drug/alcohol treatment

Courts generally have the power to set any reasonable condition deemed necessary to protect the public while assuring that the accused appears in court as required.

8. Bail applications

Bail applications can generally be made:

  • by persons appearing before a court in answer to a summons;
  • by persons held in custody on a charged offence;
  • by persons who have been convicted but not yet sentenced; and
  • by persons who have been convicted and sentenced but intend to appeal.

Bail becomes progressively more difficult to obtain as you move down that list.

An application for bail must usually be made in writing. The first bail application is usually made on a simple form that is available from the police or the court. If bail is to be considered by the court, it is critical for the accused to prepare a strong argument for release. In most cases, a bail application to a court is more likely to be granted if the accused is represented by a lawyer.

The court may make whatever investigation it deems necessary to decide whether release on bail is appropriate. This may include questioning the accused or the accused's lawyer to obtain information about the accused's living situation, employment, lifestyle, and other matters that bear upon the risk involved in granting bail. The accused may not be questioned, however, about the alleged crime that has been charged.

If the court denies a bail application, the accused can apply again later, but the opportunity to do so may be limited. In Victoria, for instance, the court will not hear a new application for bail unless:

  • new facts or circumstances justifying bail have arisen since bail was refused;
  • the accused was not represented by a lawyer when bail was refused; or
  • the order refusing bail was made by a bail justice.

A bail application after bail has been denied is usually more detailed than the first bail application. The application must explain why new circumstances justify a release on bail. Individuals who need to file a second bail application are strongly advised to have the application prepared by a lawyer.

9. Breaching bail

To assure the future court appearances of a person who is charged with a crime and released from custody, any person who is granted bail must sign a written agreement to appear in court when notified to do so. A person who violates that agreement by missing a court appearance can be charged with another crime. That crime is often known as "breaching bail." Violating other conditions of bail, including those that are meant to protect the community, can also lead to a charge of breaching bail. Missing a court appearance or violating any other bail condition can lead to a revocation of bail whether or not it results in a breaching bail charge.

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