Bail Applications

Yes, bail can be granted under the Bail Act to any person accused of an offence. If they are in custody already, they will be entitled to release from custody once the bail acknowledgement is signed and the bail conditions are met.

Yes, once the charge process is finalised by the custody sergeant, they can make a determination if police will give you bail. If the custody sergeant believes you should get police bail, you will need to sign the bail acknowledgement.

If the custody sergeant bail refuses bail, you have the option to apply for bail in the Local Court. This could either occur on the same day or the next day. The rule of thumb is that you will appear at the Local Court as soon as practically possible.

If you choose to do a bail (release) application at the Local Court, the Magistrate that is presiding will determine if you should be released on bail.

The Court first must determine if the matter falls under the show cause provisions of the Bail Act.

In the event, your matter is not a “show cause” matter than the Court considers whether you are an unacceptable risk to the community.

The Court consider section 17 of the Bail Act in deciding if there may be a bail concern if you are released from custody:

ASSESSMENT OF BAIL CONCERNS

(1) A bail authority must, before making a bail decision, assess any bail concerns.

(2) For the purposes of this Act, a “bail concern” is a concern that an accused person, if released from custody, will–

(a) fail to appear at any proceedings for the offence, or
(b) commit a serious offence, or
(c) endanger the safety of victims, individuals or the community, or
(d) interfere with witnesses or evidence”.

Further the Court than considers relevant matters as part of the assessment under section 18 of the Bail Act:

MATTERS TO BE CONSIDERED AS PART OF ASSESSMENT

(1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division–

(a) the accused person’s background, including criminal history, circumstances and community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
(d) whether the accused person has a history of violence,
(e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),
(f) whether the accused person has a history of compliance or non-compliance with any of the following–
(i) bail acknowledgments,
(ii) bail conditions,
(iii) apprehended violence orders,
(iv) parole orders,
(v) home detention orders, good behaviour bonds or community service orders,
(vi) intensive correction orders,
(vii) community correction orders,
(viii) conditional release orders,
(ix) non-association and place restriction orders,
(x) supervision orders,

(f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,

(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,

(q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),

(r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,

(s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

(2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered–

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 ,

(b) the likely effect of the offence on any victim and on the community generally,

(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole”.

Lastly, if the court does find the accused person to be an unacceptable risk because if the accused person is released from custody they will either:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

Then the accused person won’t be granted bail. However, if they are of the view that it’s a bail concern then it can be mitigated by bail conditions, then the accused person can be released on bail after signing the bail acknowledgement.

After the Lindt Café Siege, the Bail Act was reformed to include new provisions relating to show cause.

Section 16A of the Bail Act was introduced that states a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

If the accused person does show cause then the bail authority (the Court) must make a bail decision on the unacceptable risk test.

What triggers a show cause bail application?

Section 16B of the Bail Act provides offences to which the show cause requirement applies:

For the purposes of this Act, each of the following offences is a
“show cause offence” —

(a) an offence that is punishable by imprisonment for life,

(b) a serious indictable offence that involves–

(i) sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or

(ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,

(c) a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence,

(d) any of the following offences–

(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm,

(ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,

(iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm,

(e) any of the following offences–

(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon,

(ii) an indictable offence that involves the unlawful possession of a military-style weapon,

(iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,

(f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,

(g) an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,

(h) a serious indictable offence that is committed by an accused person–

(i) while on bail (whether granted under this Act or a law of another jurisdiction), or

(ii) while on parole (whether granted under a law of this State or another jurisdiction),

(i) an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order,

(j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,

(k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section,

(l) a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under–

(i) this Act, or

(ii) Part 7 of the Crimes (Administration of Sentences) Act 1999 , or

(iii) the Criminal Procedure Act 1986 , or

(iv) the Crimes (Sentencing Procedure) Act 1999 .

It really depends on what the breach is.

For example, if you fail to appear in Court, you may be criminally charged with failing to appear under section 79 of the Bail Act in which the maximum penalty for t he offence are 3 years imprisonment or $3,300.00 fine or both.

If it’s a different type of breach, like reporting late to the police station. Police may give you a warning and take no account. Alternatively, if they decide to take action, they can put a detention application to the Court and the bail hearing is heard again.

Yes, you can vary any bail condition. However, simple variations are generally accepted by the Court if the prosecution consents with the variation. Note, that even if all parties consent to the variation, it is still ultimately up to the Court.

If the prosecution contests the bail variation then the Court has a disputed bail variation hearing and determines if it is acceptable to change the conditions.