Bail WA

The concept of bail, its meaning, and its application are crucial components of the legal system in many countries, including Australia. Bail in Australia governs the process of bail, outlining the conditions under which an individual may be released from custody pending their trial or other legal proceedings. Bail in Australia encompasses various aspects such as breach of bail, application for bail, bail application procedures, and considerations for home detention.

If a person has been arrested, Police need to decide whether that person should:

1. Be given a court hearing notice to attend Court on a chosen date and time
2. Be placed on bail with the necessary terms and conditions
3. Refuse the person bail and have them appear as soon as practicable at Court before a Magistrate

If a person is granted bail or given a court hearing notice, they must attend the court hearing. Failure to attend court (a breach of bail) in compliance with the terms of bail can result in a warrant being ordered for a person’s arrest.

When a person is arrested, the police have several options to consider under the Bail Act. They may choose to issue a court hearing notice for the individual to attend court at a specified date and time, grant bail with appropriate terms and conditions, or refuse bail, necessitating the person’s appearance before a magistrate at the earliest opportunity. Factors that judicial officers must have regard to in their discretion to grant bail (Schedule 1, Part C, cl. 1) include:

• whether, if the accused is not kept in custody:
  • they may fail to appear in court in accordance with their bail undertaking;
  • commit an offence;
  • endanger the safety, welfare, or property of any person;
  • interfere with witnesses or otherwise obstruct the course of justice, whether in relation to themselves or any other person;
• whether the accused needs to be held in custody for their own protection;
• whether the prosecutor has put forward grounds for opposing the grant of bail;
• whether, in relation to the period when the accused is on trial, there are grounds for believing that, if they are not kept in custody, the proper conduct of the trial may be prejudiced;
• whether there is any condition which could reasonably be imposed under Part D ;
• where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
• whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate’;
• whether it is alleged to be a serious offence, murder, breach of high-risk serious offender supervision order and family violence.

Matters that can be taken into account (Schedule 1, Part C, cl. 3) include:

• the strength of the evidence against the accused;
• the nature and seriousness of the offence;
• the probable method of dealing with the accused for the offence, if convicted;
• the conduct of the accused, after the time or alleged time of the offence, towards
  • any person against whom it was, or was alleged to have been, committed; and
  • any family member of such a person;
• the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
• the history of any previous grants of bail to the accused;
• any other matters which the officer considers relevant.

Matters to consider in bail applications for sexual offences against child victims

In cases involving sexual offenses against child victims, specific considerations come into play. Matters to consider in cases of sexual offences against child victims (Schedule 1, Part C, cl. 3AA) include:

• the age of the child victim;
• the age of the accused;
• whether the child victim is in a family relationship with the accused;
• the living arrangements of the child victim and of the accused;
• the importance of safety, continuity, security and stability in the child victim’s:
  • living arrangements;
  • family and community relationships;
• the physical and emotional wellbeing of the child victim;
• concerns of a child victim.

Our criminal defence lawyers can talk you through the unique complexities and sensitivities that require careful consideration.

Common Conditions & Protective Bail Conditions

Common Conditions can be imposed as part of bail and include:

• Personal undertaking to attend court, with or without monetary amount attached;
• Surety undertaking with monetary amount, to ensure accused attends court;
• Not to re-offend while on bail;
• Report to police as specified (unlikely to be a protective bail condition);
• Residential condition;
• Curfew as specified;
• Attend doctor/psychiatrist or receive treatment as specified;
• Not to return a positive result to illicit substances in a urinalysis;
• Not to contact specified person(s) (likely to be a protective bail condition);
• Not to enter specified area (likely to be a protective bail condition);
• Home detention.

What do Protective Bail Conditions mean?

Protective bail conditions usually mean an accused cannot talk to or go near the protected person.

• The condition is usually worded in a way that the accused cannot communicate or attempt to communicate directly or indirectly with the protected person or approach within a certain distance of the Protected Person or where they live, work or are educated.
• The purpose of protective bail conditions is to ensure that an accused:
  • does not endanger the safety, welfare or property of any person;
  • does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
• Breaching a protective bail condition is a serious offence under Schedule II of the Bail Act. To be granted bail again, the Court must be satisfied that there are exceptional circumstances. Ask us for expert guidance and representation.

Schedule II – serious offending whilst on bail for a serious offence

• Where an accused has been charged with a serious offence, and that offence is alleged to have been committed:
  • while on bail for a serious offence;
  • an early release order for a serious offence;
• Bail must be refused unless there are exceptional reasons. 
• ‘Serious offence’ is defined as a failure to comply with protective bail conditions, or an offence listed under Schedule II of the Bail Act.

“Exceptional Circumstances”

• The onus is on the accused and is a high legal standard.
• The accused must show circumstances that are unusual or out of the ordinary or are in some way special or an exception to the general run of cases.
• Exceptional circumstances may include a significant delay to trial where time on remand will exceed potential sentence.

Reapplying for Bail – Change in Circumstances

• If bail has been refused, an accused can re-apply for bail when there has been a material change in circumstances.
• This may include where new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously refused.
• The test will depend on what the material was before the court on the first occasion and what has been put before the Court that support the change of facts or circumstances.

Reapplying for Bail – Change in Circumstances

• After refusal in the Magistrates Court, an accused can apply to the Supreme Court of WA to make an application for bail.
• The accused will need to:

1. File a written application with the Supreme Court and an affidavit in support of bail; and
2. Provide transcript of any previous bail application heard in the Magistrates Court.

Seek guidance from our experienced criminal defence lawyers to navigate this process effectively and ensure the best possible outcome.

With the introduction of the Family Violence Legislation Reform Act 2024 (WA), the Bail Act 1982 (WA) has been amended.

1. Unless a judicial officer is satisfied that there are exceptional reasons why the accused should not be kept in custody and is satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 then the judicial officer must refuse to grant bail to an accused who is a serial family violence offender in custody:
   1. waiting an appearance in court before conviction for a family violence offence (category B); or
   2. waiting to be sentenced or otherwise dealt with for a family violence offence (category B) of which the accused has been convicted.
2. A judicial officer may grant bail to an accused who is bound by a family violence restraining order and is in custody:
   1. awaiting an appearance in court before conviction for a family violence offence (category A); or
   2. waiting to be sentenced or otherwise dealt with for a family violence offence (category A) of which the accused has been convicted;
   3. and the person against whom the family violence offence (category A) was committed or is alleged to have been committed is protected by the family violence restraining order.

If a judicial officer grants bail and imposes a home detention condition, the judicial officer must direct that the accused, while subject to the home detention condition:

1. be subject to electronic monitoring so as to allow the location of the accused to be monitored; and
2. be under the supervision of a community corrections officer and comply with the directions of the community corrections officer.

This does not apply if the judicial officer is satisfied there are exceptional circumstances.

If a judicial officer grants bail and does not impose a home detention condition, the judicial officer must impose an electronic monitoring condition as a condition on the grant of bail unless the judicial officer is satisfied there are exceptional circumstances.

A requirement that an accused subject to a home detention condition while on bail wear an electronic monitoring device cannot apply to a person who is under 18 years of age.

Category A means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is one of the following (Bail Act 1982 (WA) Schedule 1, Part C, cl. 3G(2):

Category B means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is one of the following (Bail Act 1982 (WA) Schedule 1, Part C, cl.3F(1A)):

Family Violence Offence (category B)

Category B means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is one of the following (Bail Act 1982 (WA) Schedule 1, Part C, cl.3F(1A)):

Bail for Family Violence Offence (category B) – s.3F

This applies where an accused is a serial family violence offender in custody (cl.3F(1) Bail Act):

1. awaiting an appearance in court before conviction for a family violence offence (category B); or
2. waiting to be sentenced or otherwise dealt with for a family violence offence (category B) of which the accused has been convicted.

Bail may only be granted by a judicial officer in whom jurisdiction is vested and the judicial officer must refuse to grant bail for the family violence offence (category B) unless the judicial officer (Part C cl.3F(2)):

1. is satisfied that there are exceptional reasons why the accused should not be kept in custody; and
2. is satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3.

Before a judicial officer grants bail, the judicial officer must Part C (cl. 3F(4):[1]

• request that a report be made by a community corrections officer about the suitability of the accused to be subject to a home detention condition; and
• having regard to the recommendations in the report, consider the imposition of a home detention condition as a condition on the grant of bail that includes electronic monitoring (s24A).

Home Detention Condition

If a judicial officer grants bail and imposes a home detention condition, the judicial officer must direct that the accused, while subject to the home detention condition (Part C cl 3F(4A):

1. a) be subject to electronic monitoring so as to allow the location of the accused to be monitored; and
2. b) be under the supervision of a community corrections officer and comply with the directions of the community corrections officer Part D(cl. 3(4A).

This does not apply if the judicial officer is satisfied there are exceptional circumstances (Part D cl. 3(4).

For the purpose of the electronic monitoring of an accused, a community corrections officer may do any or all of the following (Part D cl. 3(5):

1. direct the accused to wear an approved electronic monitoring device;
2. direct the accused to permit the installation of an approved electronic monitoring device at the place where the accused is to remain;
3. direct the accused to charge the approved electronic monitoring device so as to ensure the device is at all times operational;
4. direct the accused to not enter 1 or more areas of the State stated in a written notice given to the accused by the community corrections officer.
5. give any other reasonable direction to the accused necessary for the proper administration of the electronic monitoring of the accused.

A requirement that an accused subject to a home detention condition while on bail wear an electronic monitoring device cannot apply to a person who is under 18 years of age (Part D cl. 3(7)).

Suspension of Electronic Monitoring

A community corrections officer may suspend the electronic monitoring of an accused (Part D, cl. 3(6)):

1. while satisfied that it is not practicable to subject the accused to electronic monitoring; or
2. while satisfied that it is not necessary for the accused to be subject to electronic monitoring.

The purpose of electronic monitoring under this clause is to enable the location of the accused to be monitored (Part E, cl. 1(6).

Electronic Monitoring Condition

If a judicial officer grants bail and does not impose a home detention condition as a condition on the grant of bail, then a judicial officer must impose an electronic monitoring condition as a condition on the grant of bail unless the judicial officer is satisfied there are exceptional circumstances (Part C, cl. 3F(4B); Part E cl. 1(2)).

An electronic monitoring condition is a condition that while the accused is on bail the accused (Part E cl. 1(3)

1. be subject to electronic monitoring so as to allow the location of the accused to be monitored; and
2. be under the supervision of a community corrections officer and comply with the directions of the community corrections officer.

For the purpose of the electronic monitoring of an accused, a community corrections officer may do any or all of the following (Part E cl. 1(4):

1. direct the accused to wear an approved electronic monitoring device;
2. direct the accused to permit the installation of an approved electronic monitoring device at the place where the accused resides or, if the accused does not have a place of residence, at any other place specified by the community corrections officer;
3. direct the accused to charge the approved electronic monitoring device so as to ensure the device is at all times operational;
4. direct the accused to not enter 1 or more areas of the State stated in a written notice given to the accused by the community corrections officer;
5. give any other reasonable direction to the accused necessary for the proper administration of the electronic monitoring of the accused.

This clause does not apply to a person who is under 18 years of age (Part E cl. 1(7).

Suspension of Electronic Monitoring

A community corrections officer may suspend the electronic monitoring of an accused (Part E, cl. 1(5):

1. a) while satisfied that it is not practicable to subject the accused to electronic monitoring; or
2. b) while satisfied that it is not necessary for the accused to be subject to electronic monitoring.

The purpose of electronic monitoring under this clause is to enable the location of the accused to be monitored (Part E, cl. 1(6)). 

Family Violence Offence (category A)

Category A means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is one of the following (Part C, cl. 3G(2):

Bail for Family Violence Offence (category A) – s.3G

If Family Violence Offence (category A) applies where an accused is bound by a family violence restraining order and is in custody (Part C, cl. 3G):

1. awaiting an appearance in court before conviction for a family violence offence (category A); or
2. waiting to be sentenced or otherwise dealt with for a family violence offence (category A) of which the accused has been convicted;

and the person against whom the family violence offence (category A) was committed or is alleged to have been committed is protected by the family violence restraining order, then a judicial officer, who jurisdiction is vested, may grant bail.

Home Detention Condition

If a judicial officer grants bail and imposes a home detention condition, the judicial officer must direct that the accused, while subject to the home detention condition (Part C, cl. 3F(4A):

1. be subject to electronic monitoring so as to allow the location of the accused to be monitored; and
2. be under the supervision of a community corrections officer and comply with the directions of the community corrections officer (Part D cl. 3(4A).

This does not apply if the judicial officer is satisfied there are exceptional circumstances (Part D, cl.3(4).[2]

For the purpose of the electronic monitoring of an accused, a community corrections officer may do any or all of the following (Part D, cl. 3(5):

1. direct the accused to wear an approved electronic monitoring device;
2. direct the accused to permit the installation of an approved electronic monitoring device at the place where the accused is to remain;
3. direct the accused to charge the approved electronic monitoring device so as to ensure the device is at all times operational;
4. direct the accused to not enter 1 or more areas of the State stated in a written notice given to the accused by the community corrections officer.
5. give any other reasonable direction to the accused necessary for the proper administration of the electronic monitoring of the accused.

A requirement that an accused subject to a home detention condition while on bail wear an electronic monitoring device cannot apply to a person who is under 18 years of age (Part D cl. 3(7).

Suspension of Electronic Monitoring

A community corrections officer may suspend the electronic monitoring of an accused (Part D, cl. 3(6):

1. a) while satisfied that it is not practicable to subject the accused to electronic monitoring; or
2. b) while satisfied that it is not necessary for the accused to be subject to electronic monitoring.

The purpose of electronic monitoring under this clause is to enable the location of the accused to be monitored (Part E, cl. 1(6).

Electronic Monitoring Condition

If a judicial officer grants bail and does not impose a home detention condition as a condition on the grant of bail, then a judicial officer must impose an electronic monitoring condition as a condition on the grant of bail unless the judicial officer is satisfied there are exceptional circumstances (Part C, cl. 3F(4B); Part e, cl. 1(2).

An electronic monitoring condition is a condition that while the accused is on bail the accused (Part E, cl. 1(3)):

1. be subject to electronic monitoring so as to allow the location of the accused to be monitored; and
2. be under the supervision of a community corrections officer and comply with the directions of the community corrections officer.

For the purpose of the electronic monitoring of an accused, a community corrections officer may do any or all of the following (Part E, cl. 1(4):

1. a) direct the accused to wear an approved electronic monitoring device;
2. b) direct the accused to permit the installation of an approved electronic monitoring device at the place where the accused resides or, if the accused does not have a place of residence, at any other place specified by the community corrections officer;
3. direct the accused to charge the approved electronic monitoring device so as to ensure the device is at all times operational;
4. direct the accused to not enter 1 or more areas of the State stated in a written notice given to the accused by the community corrections officer;
5. give any other reasonable direction to the accused necessary for the proper administration of the electronic monitoring of the accused.

This clause does not apply to a person who is under 18 years of age (Part E, cl. 1(7).

Suspension of Electronic Monitoring

A community corrections officer may suspend the electronic monitoring of an accused (Part E, cl. 1(5)):

1. a) while satisfied that it is not practicable to subject the accused to electronic monitoring; or
2. b) while satisfied that it is not necessary for the accused to be subject to electronic monitoring.

The purpose of electronic monitoring under this clause is to enable the location of the accused to be monitored (Part E, cl. 1(6)).

Should you or someone you know be charged with a family violence 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 Perth on 08 6255 6909 to make an appointment to speak to one of our lawyers.

Callum Parker
Lawyer
Hugo Law Group
Perth