Bail

BAIL

Bail is a conditional release of a person who has been charged with an offence.  It is granted to people to allow them to remain at liberty in the community rather than being held in custody until their case is heard.

Bail can be on a person’s own undertaking to re-appear at court when required.  It often has conditions attached to it with which the person must comply.  Sureties are sometimes required by the court as part of bail.  A surety is where a third party lodges funds with the court as security for the appearance at court of the bailed person.

This section includes information about when a person is eligible for bail, what the court will consider in relation to bail applications and the ramifications of a person not complying with their conditions of bail.

Unless otherwise stated, all references to legislation in this section refer to the Bail Act 1982 (WA).

Released unconditionally – s.142 Criminal Investigation Act 2006 (WA)

In some circumstances a person will be released unconditionally – without bail being imposed – after being charged.  A person will usually be released unconditionally if the arresting officer is satisfied there is no risk the person charged will:

  • Commit further offences;
  • Continue the offence for which they were arrested;
  • Endanger the safety or property of another person;
  • Interfere with witnesses or obstruct justice in any other way; or
  • Be endangered themselves if they are released unconditionally.

s.142(3) Person not Charged

A person must be released unconditionally where it is decided not to charge the person.  This also applies where a person is issued with an infringement notice or cautioned in relation to an offence instead of being formally charged.

s.142(4) Person Charged with a Simple Offence

If a person is charged with a simple offence (a charge that is only heard in the Magistrates Court) they must be released conditionally unless:

  • The police officer reasonably suspects that the presence of the person when the charge is first dealt with by a court is likely to be necessary for any reason or for sentencing purposes; or 
  • Not releasing the suspect unconditionally is justified on the basis the officer believes there is a risk the person will:
    • Commit further offences;
    • Continue the offence for which they were arrested;
    • Endanger the safety or property of another person;
    • Interfere with witnesses or obstruct justice in any other way; or
    • Be endangered themselves if they are released unconditionally.

If the police do not unconditionally release a person who has been charged with a simple offence, they must ensure the person is dealt with as soon as practicable under the:

  • Bail Act 1982 (WA); or
  • Mental Health Act 1996 (WA).

s.142(5) Person Charged with Indictable Offence (Other Than a Serious Offence)

If police charge a person with an indictable offence that is not a “serious offence”, the person must be released unconditionally unless the police reasonably believe the person:

  • Would not obey a summons to attend court; or
  • Presents a risk that they will:
    • Commit further offences;
    • Continue the offence for which they were arrested;
    • Endanger the safety or property of another person;
    • Interfere with witnesses or obstruct justice in any other way; or
    • Be endangered themselves if they are released unconditionally.

If the police do not unconditionally release a person who has been charged with such an indictable offence, they must ensure the person is dealt with as soon as practicable under the:

  • Bail Act 1982 (WA); or
    • Mental Health Act 1996 (WA).
Serious Offence

A serious offence for the purpose of the Criminal Investigation Act 2006 (WA) is an offence for which the statutory penalty includes imprisonment for 5 years or more.

The Right to Bail

Pursuant to s.5 of the Act, there is no absolute right to be granted bail.  However; a person who is in custody for an offence and is awaiting their first appearance in court for that offence has a right to have case for bail considered as soon as practicable, subject to:

  • s.9(1) – Any deferral by a court of the consideration of bail to allow further relevant material to be obtained in relation to the application (this deferral cannot exceed 30 days), including;
    • Requesting that the police verify information provided by the accused person during the application; and
    • Requesting a report from the police in relation to any risk factors the court considers to be relevant to the application for bail; or
  • s.10 – Bail does not need to be considered if the person is already in custody for another matter and not likely to be released from such custody prior to the first date the new matter is listed in court; or
  • s.12 – Other statutory provisions which require the person to remain in custody such as for the purposes of investigating the offence they have been arrested for, for example, pursuant to the Criminal Investigation Act 2006 (WA).

A person is also entitled to have bail considered at any court appearance, other than the initial appearance, if the person is in custody for that offence.  Again, this does not apply if the person is in custody for another matter and likely to remain in custody until the next court appearance.

Murder

Pursuant to s.15 of the Act, if a person is charged with murder, only a judge of the Supreme Court can consider bail.  If the accused person is a child, bail may be considered by a judge of the Childrens Court.

Pursuant to Schedule 1, Part C, Clause 3C of the Act, bail can only be granted to a person charged with murder where “exceptional reasons” exist.  “Exceptional reasons” are covered below under “Bail Must be Refused in Some Cases”.

Bail Must be Refused in Some Cases

Pursuant to Schedule 1, Part C, Clause 3A of the Act, in some circumstances, a judicial officer must refuse to grant bail unless “exceptional reasons” exist.  These circumstances arise when a person is in custody:

  • Awaiting an appearance in court for a “serious offence”; or
  • Waiting to be sentenced or otherwise dealt with for a “serious offence”;

and, the “serious offence” is alleged to have been committed whilst the person was:

  • On bail for another “serious offence”; or
  • At liberty under an early release order made in respect of a “serious offence”.

In these circumstances, the judicial officer must refuse bail unless “exceptional reasons” exist in addition to the usual factors which must be satisfied in relation to the granting of bail.  If a person is refused bail pursuant to this provision, they cannot have bail for that matter considered again unless:

  • New facts or circumstances have arisen since the last refusal; or
  • The person failed to adequately present their case for bail when it was refused.

Exceptional Reasons

“Exceptional reasons” are not defined in the Act.  Whether or not a person can demonstrate “exceptional reasons” will depend on the circumstances of their particular matter and their personal circumstances.  It is generally accepted that for reasons to be “exceptional” they must be out of the ordinary.  For example, the need to continue to provide care for a close relative may be considered an “exceptional reason” if the care was being provided prior to the arrest of the person and there was no other person who could provide that care.  However, if the person arrested was not providing care prior to their arrest, the need to care for the relative may not be considered to be “exceptional”.  Each case is considered on its own merits.

Serious Offence

A “serious offence” for the purpose of the Bail Act 1982 (WA) is an offence which is contained in Schedule 2 of the Act. There are numerous such offences in the schedule, including:

  • Murder;
  • Assault occasioning bodily harm and other serious assaults;
  • Sexual offences such as indecent assault;
  • Stalking;
  • Robbery;
  • Burglary;
  • Possession of a prohibited drug with intent to supply; and
  • Breaching Violence Restraining Orders.

Duty of Arresting Officers to Consider Bail

Pursuant to s.6 of the Act, when a police officer arrests and charges a person they must:

  • Release the person unconditionally pursuant to s.142 of the Criminal Investigation Act 2006 (WA);
  • Have the person brought before a court; or
  • Grant the person bail if the police officer has the power to do so.

Who Can Consider Bail?

Who is authorised to consider whether or not a person will be granted bail is set out in Schedule 1 of the Bail Act 1982 (WA).

An “authorised police officer” can consider bail in relation to the initial appearance of a person in the Magistrates Court or the Childrens Court.  An “authorised police officer” is usually an officer who is of or above the rank of Sergeant or who is in charge of the police station at the relevant time.

In any other situation, bail can only be considered by the relevant judicial officer as set out in the Schedule.

In some situations, an “authorised police officer” cannot consider bail.  Pursuant to s.16A of the Act, a person must appear before a magistrate or judge if they have been arrested in an “urban area” for a “serious offence” and at the time the person:

An “urban area” is the metropolitan region or any other place that is designated by the State as a city or town.

What Factors are Considered in Relation to Bail?

Schedule 1, Part C of the Bail Act 1982 (WA) sets out the considerations to be taken into account when considering whether to grant bail to a person.  These conditions are not exhaustive and the court or other authorised person can consider any matter they deem relevant.

The following factors are to be considered in relation to bail:

  • Whether the person will fail to attend court if granted bail;
  • Whether the person will commit further offences if granted bail;
  • Whether the person will endanger the safety, welfare or property of any person if granted bail; and
  • Whether the person will interfere with witnesses or otherwise obstruct the course of justice in any way if granted bail.

When the court is considering if a person is a risk to do any of the above things, it may consider:

  • The nature and seriousness of the offence and the likely outcome if the person is convicted of the offence;
  • The general character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the person;
  • Any history in relation to bail granted previously; and
  • The strength of the evidence against the person for the offence.

Other factors the court can take into account when considering whether to grant bail are:

  • Whether the person should be kept in custody for their own protection;
  • Whether the prosecutor has opposed bail being granted; and
  • Whether the proper conduct of a trial would be prejudiced if the person were not kept in custody for the duration of the trial.

If any of the above risk factors exist, the court or authorised person must consider if there are any bail conditions which could be imposed which would sufficiently remove the risk.

The court or authorised person must also consider:

  • Whether, if the alleged offence was committed in relation to a child, a condition should be imposed which requires the person to live at a different address from the child; or
  • Whether the alleged circumstances of the offence “amount to a wrongdoing of such a serious nature as to make a grant of bail inappropriate”.

Types of Bail Conditions Which Can be Imposed

This section covers what sort of conditions can be imposed as part of an undertaking of bail.  Any conditions imposed must not be more onerous than is necessary.

When a person is granted bail, they enter an undertaking in writing to:

  • appear at Court on a date and at a time that is specified (and if they fail to appear they are to attend at the court as soon as practicable);
  • Comply with any condition of the bail; and
  • If relevant, comply with any home detention order made as part of the grant of bail.

A court can impose any conditions they believe to be appropriate in the circumstances of each case.  Schedule 1, Part D, Clause 2 of the Bail Act 1982 (WA) sets out conditions that a court can impose when granting bail.  The judicial or authorised officer may impose conditions:

  • To be complied with by the person being bailed;
  • That restrict the accused’s conduct whilst on bail; and
  • Stipulating where the accused person can live whilst on bail.

If a child is being bailed, the person considering bail may also impose, if desirable, conditions which:

  • Impose a curfew;
  • Restrict who the child can communicate or associate with;
  • Restrict where the child can go; and
  • Relate to attendance by the child at school or other education facility.

Bail conditions imposed as above may be imposed for the purpose of ensuring that the accused person:

  • Appears in court in accordance with their bail;
  • Does not commit further offences whilst on bail;
  • Does not endanger the safety, welfare or property of any other person;
  • Does not interfere with witnesses or otherwise obstruct the course of justice in any way; and
  • If the bail relates to the period when the person is on trial, the person does not prejudice the proper conduct of the trial.

There are also therapeutic conditions which a judicial officer who is considering bail can impose.  These include:

  • Requiring the person to attend a programme designed to address an identified behavioural issue;
  • Requiring the person to be examined by a medical practitioner in relation to the person’s physical condition;
  • Requiring that the person:
    • Have their mental condition assessed by a medical practitioner or authorised mental health practitioner:
    • Be examined by a psychiatrist; or
    • Be admitted to an authorised hospital as defined in the Mental Health Act 2014 (WA);
  • Requiring the person to submit to care or treatment for drug or alcohol addiction, including that the person reside in a facility if it is considered appropriate; and
  • If the person is to be accommodated in premises established for the purpose of providing accommodation whilst on bail, requiring that the person comply with any rules pertaining to that accommodation.

Home Detention as a Condition of Bail

Pursuant to Schedule 1, Part D, Clause 3 of the Act, a judicial officer who is considering bail may impose a condition of home detention.  Home detention can only be imposed where the person to be bailed is over the age of 17 years.

To be able to order home detention, the judicial officer must be satisfied:

  • The person is suitable for home detention after receiving a report from Community Corrections in relation to the circumstances of the person;
  • The premises proposed for home detention are suitable; and
  • Without a home detention condition, bail would not be granted to the person.

There are a number of conditions which are attached to a home detention order.  Whilst on bail, the person must:

  • Remain at and not leave the home detention premises, except;
    • To work in, or seek, gainful employment which has been approved by Community Corrections;
    • To obtain urgent medical or dental treatment;
    • For the purpose of averting or minimising the risk of serious injury or death to the person or any other person;
    • To obey an order issued under written law which requires the person to attend another place; or
    • For a purpose approved by, or on the direction of, a Community Corrections officer;
  • Not leave Western Australia;
  • Comply with every reasonable direction made by a Community Corrections Officer; and
  • If directed, wear a tracking device or allow Community Corrections to install at the premises, any device for the purpose of monitoring the person bailed.

Sureties and Securities

Pursuant to Schedule 1, Part D, Clause 2, a judicial or authorised officer who considers bail may, if they think it is desirable, impose a condition requiring the deposit of money or security which acts as a guarantee that the bailed person will attend court as required.

Such a condition can require one or more of the following conditions:

  • That the person to be bailed agree to forfeit an amount of money if they fail to attend court as required;
  • That a surety agree to forfeit an amount of money if the bailed person fails to attend court as required;
  • That the person to bailed or the surety provide security of a specified value, including the deposit of an amount of cash, to ensure the bailed person attends court as required; or
  • That the person to be bailed or the surety deposit any specified passbook or document relating to the title or ownership of any asset which is offered as security; and
    • If required, to do anything required to render the security effective and enforceable by the State.

Any security is returned to the person who provided it where:

  • The bail imposed ceases to have effect;
  • The bailed person is acquitted of the charge/s for which they were bailed; or
  • The matter is discontinued.

If the person bailed does not comply with the condition imposed which requires their attendance at court, the deposit may be forfeited or the security enforced.

Appealing Against a Bail Decision

Pursuant to s.15A of the Act, in some circumstances a person can appeal against a bail decision by a court.  However; only decisions made by a Judge of the Childrens, District or Supreme Courts can be appealed.  S.7(3)(c) of the Criminal Appeals Act 2004 (WA), states that a bail decision made in the Magistrates Court cannot be the subject of an appeal.

Failing to Comply with Bail Conditions

Pursuant to s.51 of the Act, a person who does not comply with the conditions of their bail can be charged with an offence if the breach comprises:

  • Failing to appear at the time and place specified;
  • After failing to appear on the date specified, failing to appear at the court to which they were bailed as soon as practicable; or
  • Failing to comply with any condition which was imposed in relation to ensuring the person bailed:
    • Did not endanger the safety, welfare or property of any person; or
    • Did not interfere with witnesses or otherwise obstruct the course of justice in any way.

Pursuant to s.51(6) of the Act, a person who is charged with failing to comply with such bail conditions is liable, upon conviction, to a maximum fine of $10,000.00 or imprisonment for a maximum of 3 years or both.  A court convicting a person of this offence may also order that the person pay an amount of costs – set at the discretion of the court – towards recovering the cost of apprehending the person in relation to their breach of bail.

Pursuant to s.52 of the Act, a person charged with failing to comply with bail conditions will have the matter heard in the court to which they were bailed to appear.

The offence of failing to comply with bail conditions only relates to the above conditions.  If a person does not comply with other conditions of their bail, an application may be made to vary or revoke their bail.  Refer to the heading “Variation or Revocation of Bail” for more detail in this.

Forfeiture of Money Under Bail Undertaking

Pursuant to s.57 of the Act, if a person is convicted of an offence of failing to comply with their bail conditions, the court shall order that any amount agreed to be forfeited to the State is forfeited to the State.  For example, if, as a condition of their bail, the person undertook to pay $5,000.00 should they not comply with their bail, the court will order that the person pay that amount.

Pursuant to s.58 of the Act, if a person absconds whilst on bail, the full amount specified in the bail conditions shall be forfeited to the State one year after the date on which the person was bailed to appear in court if the person:

  • Has not been arrested;
  • Has not appeared in court in accordance with the requirement to attend the court they were bailed to as soon as practicable after the date specified in the bail; or
  • Has not otherwise surrendered themselves into custody to be dealt with in relation to the offence/s for which they were charged.

Variation or Revocation of Bail

A person may be required to appear before the court which imposed their bail if a “relevant officer” makes an application to vary or revoke the bail which was imposed.

A “relevant officer” is:

  • A prosecutor, if the bail requires the person to appear in the District or Supreme Court; or
  • A prosecutor or police officer, if the bail requires the person to appear in the Magistrates or Childrens Court.

A “relevant officer” may make an application to vary or revoke the bail of a person if the “relevant officer” reasonably believes, or is notified in writing by a surety, that:

  • The person bailed is not likely to comply with a requirement in their bail to appear at the time or place specified;
  • The person bailed is, has been or is likely to be in breach of any other condition of their bail;
  • The person bailed is, has been or is likely to be in breach of a home detention order;
  • Any surety is no longer suitable to be a surety, or has died;
  • Any security required under the bail in no longer sufficient; or
  • Where the bail relates to an appeal, has discontinued the appeal proceedings or conducted them in a manner which lacks due diligence.

The judicial officer hearing the application to vary or revoke bail may order the following:

  • Revocation of the bail and the remand into custody of the person to appear in court at a specified time;
  • Revocation of the existing bail and granting of new bail with different conditions; or
  • No action in relation to the bail and release of the person on their existing bail.
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