Bail

Bail is defined as an authorisation granted to a person under the Bail Act 1992 (ACT) to be at liberty following an accusation of a criminal offence in the ACT.

Bail can be granted by either an authorised officer, usually a Police Officer who is a Watch House Sergeant, or a Magistrate in the ACT Magistrates Court or judge in the ACT Supreme Court.

A common misconception about bail is what we see on American television – with the phrase “Bail is set at $1million”. That is not necessarily the case here in the ACT. Practically, bail is a set of promises which are aimed at achieving the following three purposes identified by Justice Penfold at 258 In the Matter of An Application for Bail by Isa Islam [2010] ACTSC 147:

1. The accused person attending court for trial;
2. Safeguarding the community and the administration of justice; and
3. Protecting the liberty of the accused person presumed to be innocent.

To achieve the above purposes, bail conditions are usually put in place by the court or the authorised officer. The conditions vary from case to case, but common conditions are outlined in s25(4) of the Bail Act  including, but not limited to:

1. Reporting at a police station or other place periodically;
2. Providing residence and contact information to the court;
3. Accepting supervision from ACT Corrective Services and complying with their reasonable directions;
4. Prohibition on contacting, being near or approaching the complainant in the matter or any proposed prosecution witnesses;
5. Prohibition on approaching a workplace or home address of the complainant or witnesses;
6. Prohibition on drinking alcohol or consuming illicit substances; or
7. Curfew and house arrest.

What is considered in a bail application?

If an accused adult person is not given bail by the authorised officer and comes before the ACT Magistrates Court to apply for bail, the court will first consider what entitlement or assumption at law the accused is subject to.

The entitlement or presumption at law for bail depends entirely upon the charges before the court. There are essentially four presumption for bail in the ACT:

1. s8 entitlement to bail for minor offences such as offences where the maximum penalty does not exceed 6 months imprisonment. For example, a person charged with minor theft or trespass.
2. 9A entitlement to bail unless a refusal is justified after considering the s22 criteria. This entitlement applies to all offending that is not captured by points 3 and 4 below.
3. 9B known as the neutral presumption. This applies to offences in schedule 1 or if in the past 10 years the person has been found guilty of an offence involving violence or threat of violence and charged with an offence mentioned in s9B(b)(i) – (vi). For example, Bob was convicted and fined $100 in May 2018 for a common assault. Bob is then arrested on an allegation of contravening a protection order and brought before the court. There is a neutral presumption for Bob’s bail application due to his common assault conviction from 2018 being one of actual violence.
4. Presumption against bail where bail is not considered unless there are special or exceptional circumstances (9C, 9D or 9E). This is applicable to people charged with serious offences such as murder and serious drug offences. It also applies to someone who has an outstanding offence that is punishable by 5 years imprisonment or more and allegedly commits another offence that is punishable by 5 years imprisonment or more. For example, Bob is arrested for breaching a family violence order and granted bail in the ACT Magistrates Court. A few weeks later, Bob is arrested again for breaching a family violence order and brought before the court to apply for bail. Bob would need to satisfy special or exceptional circumstances to be considered for bail the second time as both the first in time allegation and second in time allegation carry maximum penalty of 5 years imprisonment.

If satisfying the relevant presumption that applies above, the court must then consider the factors in s22 of the Bail Act. The court must consider the likelihood of the accused person:

1. Appearing in court in relation to the offending;
2. Committing further offending;
3. Harassing or endangering the safety or welfare of anyone;
4. Interfering with witnesses or the administration of justice; and
5. The interests of the accused person.

If the court is satisfied there is a real likelihood of the accused person engaging in any of the above conduct, bail will be refused. The likelihood has to be more than mere speculation in order to justify refusing bail. When considering the above 5 factors, the court may have regard to anything relevant including:

1. The nature and seriousness of the allegations;
2. The accused’s character, background and community ties;
3. The likely effect of a refusal of bail on the person’s family or dependents;
4. Any previous grants of bail;
5. The strength of the evidence against the accused.

If a child is brought before the court for a bail application, the criteria and considerations are vastly different.

What happens if I breach my bail order?

The Supreme Court has expressed frustration with the current legislative framework lacking a clear procedure to be applied when an accused is before the court on an allegation of breaching bail. In the case of DPP v D’Alessandro [2024] ACTSC 69, Justice Baker at paragraph 52 stated:

Before turning to the application of the above principles to the present proceedings, I wish to observe that it is unsatisfactory that a matter as basic as the procedure to be applied, and the criteria to be taken into account, concerning allegations of a breach of bail conditions are not clearly set out in the provisions of the Bail Act, and that the principles to be applied must be determined by the application of inference and necessary implications. I recommend that the legislature consider amending the Bail Act to clearly set out the procedure and considerations to be applied when determining the action to be taken following an allegation that a person has breached the conditions of their bail.

Until the legislative framework is amended, Justice Baker suggested the process could be as follows:

1. Police suspect on reasonable grounds that the person has breached their bail.
2. The person will be arrested without warrant and brought before the court within a reasonable time.
3. The court, usually the ACT Magistrates Court, will hear the allegations of the breach of bail. Including what the police allege the breach is and any rebuttal that the person wishes to make in reply to the alleged breach. The court will consider whether it is satisfied that a breach of bail has occurred on the balance of probabilities (s55 Bail Act).
4. If satisfied that a breach has occurred, the court will consider whether it is justified to revoke, vary or enlarge bail. A revocation or variation will only be made if the court is satisfied it is appropriate.
5. In considering whether to revoke, vary or enlarge bail, the court will also have regard to whether there is a risk of a future breach and the legislative intentions expressed in the presumptions for and against bail.

Importantly, Justice Baker outlined that the above process is not “prescriptive” and should be varied on a case by case basis. Her Honour provided an example of where a breach is minor, it might not be necessary for the court to reach a concluded decision. Instead, the court might conclude that even if a breach has occurred, it would still not justify the revocation or variation of bail (paragraph 46 of D’Alessandro).

Is it a criminal offence to breach bail?

Presently, it is not a criminal offence in the ACT to breach a condition of a bail undertaking. For example, failing to report to a police station at a designated time.

However, it is a criminal offence if a person fails to answer bail per s49 of the Bail Act 1992 by not appearing before the court at a specified time. The maximum penalty is 200 Penalty Units, 2 years imprisonment or both.

Should you or someone you know be charged with an offence and need to apply for bail, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.

Sarah Higgs
Lawyer
Hugo Law Group
Canberra