Once a person has been arrested and charged, they have a right to apply for bail. The police have a discretion to release the person on bail. If they decline, the person must be presented to the magistrate’s court. The Magistrate will consider the seriousness of the offence, the strength of the prosecution case and the background of the accused (for example previous convictions, the accused’s employment status, their family commitments, etc.).
Bail may be granted with sometimes very restrictive conditions. At the very least there is a ‘recognizance’ amount, i.e. an amount the person must pay if they fail (without good reason) to comply with bail terms. That amount is not required to be paid before release.
Conditions may also include; where the accused must reside, possibly with curfew conditions; restrict areas or premises where the accused is not to attend; or restrict contact directly or indirectly with another person (usually a co-accused or an alleged victim). One or more guarantors may be required.
The police or the courts may impose such conditions and additionally the courts may impose home detention.
A guarantor is someone who promises they will make all efforts to ensure the bailee complies with the condition of the bail agreement. They are required to advise the authorities if they become aware of any impending breach of bail.
If the court decides it requires home detention conditions, it will require the accused to remain in custody for at least four working days to allow time for a Home Detention Report to be prepared. A Bail Assessment Report is sometimes sought before a person is released on bail and a similar delay is required. Such reports are generally prepared by Correctional Services and assess the suitability of the proposed place of residence as well as the prisoners background, prior offending and prior compliance or otherwise with previous bail (or other supervision) conditions.
A cash surety may also be a condition of bail. Generally, this is only required in more serious cases. A specified sum of money must be lodged before the accused is released. Should the accused breach a condition of the bail the sum may be forfeited.
If the police refuse bail, the matter comes before a magistrate. If a magistrate refuses bail the applicant has a right to appeal to the Supreme Court for bail.
Bail can also be revoked (cancelled) at a later stage in proceedings. Usually this occurs when the defendant is accused of committing further offences or has otherwise failed to comply with the conditions of the bail. The defendant’s release on bail may also be revoked once there has been a finding of guilt but before the sentence is imposed.
The bail conditions are usually ‘carried over’ and will apply until the matter is finalised or withdrawn. All bail automatically requires the defendant not to leave the state and requires their attendance at court on each and every occasion the matter is listed. Failure to do so may result in a warrant being issued. The magistrate or judge may excuse the defendant from these conditions.
Variations can be made to the bail conditions. This requires an application to court, usually in writing.
People who have not been arrested are generally not on bail, however the magistrate may require the person to enter into bail agreement. This occurs when the offence is of a more serious nature.
It is important to get legal advice if there might be a problem with bail. The Legal Services Commission have a duty solicitor’s office in most suburban courts.