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13/02/2024
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Bail is the conditional release from custody of an accused person whilst they await the outcome of a criminal prosecution (or case). The release of the accused person is conditional upon them attending court (or “answering their bail”) as required. Bail is not a punishment, sentence or reward. It is simply a mechanism by which the accused person can remain free whilst the case progresses through the courts.
A bail undertaking is a legally binding promise that you will appear at a particular court at a specified time and date. It may also contain other conditions which you have to comply with.
Most criminal cases are resolved with either a trial or a sentencing. Bail allows the accused person to remain within the community whilst awaiting trial or sentence. Bail is usually subject to conditions over and above the requirement to appear in court.
Failure to attend court as required and in breach of bail is a criminal offence punishable by imprisonment.
In Western Australia, the law in respect of bail is governed by the Bail Act 1982 as well as appeal cases decided in the Supreme Court and Court of Appeal.
In Western Australia, bail can be granted by either a judicial officer (such as a judge or magistrate) or the police after an accused person is initially charged.
When the police have finished investigating suspected and have decided to lay criminal charges: they are required by law to consider releasing the accused person on bail prior to their first court date. Alternatively, the police can serve the accused with court summons or a court hearing notice for certain less serious charges.
If the police refuse bail to an accused and are not willing to summons the accused to attend court: the police must bring the accused person before court as soon as is practically possible so that they may be given the opportunity to apply for bail before a judicial officer.
You may be granted bail by police after being charged or they may refuse you bail. If you are refused bail, the police are required to bring you before a court as soon as is reasonably practical to give you the opportunity to apply for bail.
Bail will only be necessary if you have to attend court on more than one occasion. If your matter is finalised on your first appearance in court, bail will not need to be considered or imposed by the court. Depending on the seriousness of the charge and the circumstances of the case the court may decide bail is not needed. Your bail conditions will be written down on a piece of paper which you will need to sign when bail is set.
When the Court is considering a bail application, there are a number of matters that can be taken into account in making a determination of whether or not to grant bail to an accused. The first and foremost consideration is whether or not the accused person will attend court as required. An accused is considered a “flight risk” if it is suspected that they will not attend court as required or will attempt to flee interstate or overseas. Ensuring the attendance of an accused person at future court date is the primary objective of the Bail Act.
However, the court is entitled to have regard to other considerations such as:
With regard to the considerations above, the court can take into account all relevant matters that the court sees fit including: criminal record; nature and seriousness of the alleged offences; the character, antecedents, living circumstances, financial position of the accused as well as the strength of the evidence against them.
An experienced criminal lawyer or barrister can assist you with your bail application to ensure that all favourable circumstances relevant to your case are brought to the court’s attention in order to give you the best chance at being granted bail.
In Western Australia, a grant of bail is usually subject to additional conditions that the accused person is required to obey. Bail conditions that are often imposed in Western Australia are as follows:
For information about being a surety: see our page What is a Surety.
A condition that is often imposed in Western Australia is a requirement to report to police. This involves the accused person reporting to a specified police station (usually a 24-hour station) on set days.
A residential condition requires the accused person to reside at a specified address. In order to change a residential condition: an application must be made to the relevant court.
A curfew condition requires the accused person to remain at their specified address during certain hours of the day. Usually, a curfew condition requires that the person be at their residential address during night-time hours and to present at the front door in the event that a curfew check is conducted by the police.
Protective bail conditions are conditions designed to protect victims, complainant or witnesses who are in the opinion of the court at risk of being interfered with by an accused or at risk of having offences committed against them.
Protective bail conditions typically name a person and/or a place that the accused person is required to stay away from or is prevented from having any contact with.
Unlike most other bail conditions, it is a criminal offence to breach a protective bail condition.
In circumstances where the police have refused bail, we strongly recommend obtaining legal advice from a criminal lawyer prior to making an application for bail in court. Whilst there is nothing preventing an unrepresented accused from applying for bail and doing so successfully: doing so is extremely risky.
If bail is refused by the court, the accused person must either demonstrate new circumstances or that they failed to adequately present their case for bail on the previous occasion. In either case, a transcript of the failed bail application is usually required, and this typically takes several days or more to obtain.
A competent and experienced criminal lawyer will be able to give accurate legal advice in relation to the documents and evidence that may be required for a successful bail application in a criminal matter.
If a court refuses an application to grant you bail you have two options:
Once you have been refused bail by a court, it can be difficult to reapply. You cannot reapply for bail before the same court unless you can demonstrate a change in circumstances since your last bail application, or that your last bail application was not properly made. Having a decision to refuse bail reviewed by the Supreme Court requires you to demonstrate some sort of error by court that refused bail in the first instance. Usually, it takes several weeks before your bail appeal can be heard by the Supreme Court or for sufficient passage of time to pass in order to show a change of circumstances required to reapply for bail before the same court that initially refused bail.
Therefore, it is important to have proper legal representation when you apply for bail.
Schedule 2 Bail
For information about Schedule 2 Bail and exceptional circumstances: see our dedicated page on Schedule 2 Bail and Exceptional Circumstances.
If you breach your bail you may be arrested and brought to court. Depending on what you have done to breach your bail, you may also be charged. If you fail to attend court, it is likely an arrest warrant will be issued by the court.
If you cannot attend court for whatever reason, you must attend court as soon as possible thereafter. For example, if you forget your court appointment, you should hand yourself into court the following day. If you are too ill to attend court, you are to obtain a medical certificate and attend court, with the medical certificate, as soon as you are well enough. It is recommended that you get legal advice if you are handing yourself in or have missed court. A top criminal lawyer or barrister may be able to assist you in getting your bail reset.
Paxman & Paxman are a firm of criminal defence lawyers in the Perth CBD specialising in criminal law, traffic law, and restraining orders. If you need a criminal lawyer to assist with a bail application or any other criminal law matter: give us a call on 1300 274 692 or fill out an online enquiry form today. One of our criminal barristers & solicitors will gladly provide you with legal advice on your matter. Our firm of criminal lawyers and barristers is one of the top firms in Perth providing representation on all types of criminal law matters including traffic law, assaults and drug charges.
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