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.