Do you have a question about criminal law offences?


What are your rights and what matters will the court take into account?

When someone is arrested for an offence he or she has a general right in terms of Section 5 of the Bail Act 1982 to have bail considered as soon as is practicable.

The decision to grant bail can be considered by a police officer, this is called “police bail”. If the bail cannot be considered by the arresting officer, the accused has the right to be brought before an authorised police officer who can grant bail, or if the accused is not granted bail by the police, he must be brought to a Magistrate’s court as soon as is reasonably practicable.  If the court grants bail it is called “court bail”. What is “reasonably practicable” in a particular case is determined by the particular circumstances of that situation.

Section 7 provides that this duty to consider bail exists whether the accused makes an application for bail, or not.

What happens when you are arrested?

Upon arrest you (the accused) must be given an “Information given by Accused” form, which you can fill in to provide information for the purposes of having bail considered. There is no obligation on you to complete the form, or supply any information, but failure to provide information may lead to a delay in the decision. Section 9 provides for the bail decision to be deferred to obtain more information for the purposes of making a decision regarding bail. The decision may be delayed for a maximum of 30 days but you must still be taken to court as soon as is practicable.

At this stage certain police officers may consider bail, except:

  • If the offence is murder, where only a judge of the Supreme Court has jurisdiction to consider bail.
  • If you were arrested under a warrant, or
  • If you were arrested in an urban area for a serious offence, that you allegedly committed whilst out on bail, or on early release for another serious offence, or
  • If the arrest is made as a result of a breach of a violence restraining order.

If you were arrested under a warrant, you must be taken to either a justice, or before the court, which issued the warrant, as soon as is practicable to consider bail.

If the police officer is authorised to consider bail, the officer will consider the following in making the bail decision:

  • The likelihood of you appearing at your next court appearance.
  • The risk of you interfering with witnesses.
  • The risk of you interfering with or destroying evidence.
  • The risk of you absconding, etc.

If the police decide to grant bail, you may have to sign a Bail Undertaking to appear in court on the specified date and time and to comply with certain conditions on you being released on bail.

You must be given a copy of the Bail Undertaking and a form explaining the conditions and your obligations. It must also set out the consequences of not complying with the conditions.

If bail is not considered, or not granted, you need to be brought before a court as soon as is practicable.

The court has a discretion to grant bail, with or without certain conditions, or to dispense with bail, or refuse bail. In exercising its discretion the court must consider the factors set out in Schedule 1, Part C of the Bail Act 1982. The importance of each factor will be weighed and balanced against the circumstances of the case. The court must also consider any other factors relevant to your case before the court.

The factors (as set out in the Bail Act) to be considered by the court are:

  • Whether, if you are not kept in custody, you may fail to appear in court in compliance with the terms of your bail undertaking; or
  • commit an offence; or
  • endanger the safety, wellbeing, or property of any person; or
  • interfere with witnesses; or
  • otherwise obstruct the course of justice.
  • Whether you need to be held in custody for your own protection;
  • Whether the prosecutor has put forward grounds for opposing bail, or not;
  • Whether, there are grounds for believing that, if you are not kept in custody, the trial may be adversely affected;                    
  • Whether any objections or opposition to bail can be addressed by imposing conditions for granting bail. Bail conditions must be fair and reasonable in the circumstances of each case.
  • Whether the alleged circumstances of the offence is of such a serious nature that it would be inappropriate to grant bail.

In considering the abovementioned, the court must also consider:

  • The strength of the prosecutions case, ie the likelihood of a conviction
  • The seriousness of the offence
  • Your personal background and bail history
  • Your character
  • Where you live
  • Previous convictions
  • Your financial position

Bail should not be a punishment; it is aimed at securing your presence at court to finalise the matter.

What to remember when making a bail application

In many cases in the Magistrates Court, bail is not opposed. It is important to ascertain early on what the prosecution’s attitude is towards bail. If the bail application is opposed you must address the following when making your application:

  • Any concerns, which may be raised by the prosecutions, and
  • Any grounds put forward to oppose the granting of bail,
  • The criteria set out in the Bail Act as they apply to your case.
  • Support your submissions with evidence.
  • Suggest or agree to conditions that may improve your chances of being released on bail. Strict conditions are almost always preferable to remaining in custody.

The outcome of your bail application is very important to you. It is important to seek legal advice and consider obtaining a lawyer to assist you with the process.

What can you do if you are not satisfied with the outcome of your bail application?

If you are not happy with a bail refusal by the authorised police officer, a justice or a magistrate, you can apply to a judge to grant bail. Once you’ve made such an application to a judge, you cannot make another if you are not happy with the outcome, unless:

There is a change in the circumstances, or new facts are discovered, or you failed to present your case properly in the first application; or

You can also make an application to the Supreme Court for a fresh application of bail. An application to the Supreme Court is in essence, an opportunity for a fresh hearing of the bail application before a Justice of the Supreme Court. Any application to the Supreme Court for a fresh bail hearing will need to be set out by an affidavit in support setting out the basis for the application for bail. The Court also requires that the accused person’s charges and transcripts from previous bail application be annexed to the affidavit in support.

Ask a lawyer to assist you to make an application to a judge. This might be the final opportunity to be released on bail in your matter.

Applications for Bail – Murder

Murder cases require the accused to show exceptional circumstances for granting bail. However the right to apply for bail remains.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

Ask a Question - It Is Free