Bail

Contributed by RennieAnderson and current to 1 May 2016

When a person is charged with a criminal offence, they are required to go before the appropriate court, usually the Magistrates or Supreme Court, to advise the court how they intend to deal with their charges, that is, whether they wish to plead guilty or not guilty.

A person charged with an offence is charged by police. In some cases, usually those involving less serious offences, police arrange to have a summons issued, requiring the person (the defendant) to attend court. Provided the defendant answers the summons either in person or by engaging a lawyer to appear for them, bail is not required in such cases.

In other cases, the police arrest a person and charge them. The police are then required to make a decision about whether to grant the defendant bail (see Police bail , this section) or keep them in custody. If they decide to keep the defendant in custody, they have to bring them before the first available court so it can decide whether or not they should be released on bail while they wait for their case to come back before the court.

The law governing bail is set out in the Bail Act (NT) (BA) and applies to both adults and young persons (although the Youth Justice Act (NT) (YJA) contains specific laws for young people). A young person is any person under 18 years of age. The main provisions of the BA are outlined below.

What is bail?

Bail is an agreement made between the court or police and a person charged with an offence (the defendant). The court or the police agree to release the defendant if they agree to come back to court on a certain date and attend court proceedings until their case is concluded. This promise, called a bail undertaking, is made in writing and signed by the defendant. All bail undertakings state that the defendant will forfeit a sum of money if they fail to appear in court on the due date or fail to comply with any other term or condition of the agreement without good excuse.

Usually, bail is granted in the defendant's own recognisance, that is, the defendant promises to pay a certain amount of money if they fail to appear on the due date or to comply with the conditions of bail. In these cases, no money is given to the court or police when bail is granted. However, in more serious cases the court or police can order the defendant to pay a sum of money before granting bail. A surety may also be required (see The surety and Conditions of bail, this section).

Once bail has been granted, the defendant is released to appear in court at a date and time specified in the bail agreement.

It is possible for the defendant to reapply for bail if it has been refused, to apply to vary the conditions of bail or to apply to a higher court for a review of a bail decision. There is no limit to the number of times a person can apply for bail [BA s.19(1)].

Usually, bail agreements continue until court proceedings have ended. However, bail can be varied or revoked at any time for good reason, such as where there is reason to believe the person has committed a further offence.

Presumption of bail

For most offences there is a presumption in favour of bail, and a person is entitled to be granted bail unless there are good reasons for refusing [BA s.8]. A good reason might be a failure to appear in court on past occasions (see Criteria for granting bail , this section). However, all offences not otherwise covered by s.7A of the BA, where the presumption is against bail, require an assessment of s.24 of the BA. If the Court is satisfied that refusing bail is justified, taking into consideration of the given factors (see Criteria for granting bail , this section), then bail is not to be granted.

There are, however, a number of offences where there is a presumption against bail, and the onus is on the defendant to satisfy the court that bail should be granted. This only applies to more serious offences of murder, treason, serious drug offences, serious violent offences (including sexual assaults) in certain circumstances and serious sexual offences [BA s.7A].

Dispensing with bail

Instead of granting bail, the court can decide to dispense with the need for bail, enabling the person to have unconditional liberty until their next court appearance [BA s.9]. The court cannot dispense with bail for offences where there is a presumption against bail [BA s.7A].

When may bail be granted?

Bail may be applied for and granted at any stage of criminal proceedings, namely [BA s.6]:

• after police have arrested and charged a defendant, and before the first appearance in court;
• at the first appearance in court;
• during any period between court appearances;
• in the case of serious offences, following committal for trial or sentence by a judge to the Supreme Court (see Going to court );
• when a court finds a defendant guilty but defers sentencing;
• when a person has appealed against a conviction or sentence, pending the outcome of the appeal; 'appeal bail' is only granted in special circumstances, such as where the sentence of actual imprisonment is likely to be shorter than the time taken to hear and determine the appeal.

Police bail

Police bail is covered by section 16 of the BA. A person who has been arrested must be given an explanation of bail rights and must be brought before an authorised police officer or a court for a decision on bail as soon as practicable. A young person who is refused bail by police must be brought before a court as soon as practicable and within seven days of being charged [YJA s.27],

A police officer who is of or above the rank of sergeant or in charge of a police station is authorised to grant bail as long as a court has not already decided a bail application or dispensed with bail for that person and that offence. A police officer can grant conditional or unconditional bail or refuse it.

When a person has been arrested, in certain circumstances police are able to keep them in custody without charging them while investigations take place (see Investigation and arrest ).

Once charges have been laid against a person under arrest, if police fail to grant bail within four hours, or impose bail conditions which the defendant can't or doesn't wish to comply with, the police must inform the person of their right to apply for bail to a magistrate [BA s.33(3)].

If the person still wishes to apply for bail, police must then offer to contact someone who might help the defendant with bail [BA s.33(1)(c)], unless they reasonably believe the communication will aid the escape of an accomplice or interfere with evidence [BA s.33(2)]. Police usually assist by telephoning a lawyer or relative. Police must then arrange to bring the person for a bail application before a justice of the peace (JP) or a judge, either in person or by telephone as soon as practicable [BA s.33(4)].

Court bail

A JP or judge can grant bail to a person who has been charged with any offence [BA ss.20, 23]. The court will ask the defendant whether they wish to apply for bail, and the police or prosecution whether there are any objections to bail being granted.

The court may dispense with the need for bail, in which case the defendant is free to go 'at large' until the next court appearance.

A defendant won't be released if they are in custody for some other reason, such as that they are already serving a prison sentence.

There is no limit to the number of bail applications a person can make. Each time a defendant appears before the court they can make a fresh verbal request for bail or for a variation of existing bail conditions. The request is normally considered by the magistrate who dealt with the original application.

When a defendant on bail appears and an adjournment is ordered, the court will normally continue bail on the same conditions as previously granted.

When a defendant appears in custody and bail is refused, an adjournment must not be for more than 15 days, unless the defendant consents to a longer period or is already in custody for another offence [BA s.22 ;YJA s.65]. If bail continues to be refused, then the defendant will continue to be held in custody until either the matter has finalised or bail is granted, regardless of the number and length of adjournments.

Criteria for granting bail

When deciding whether to grant bail, the court or police must only have regard to the following [BA s.24]:

The likelihood of the defendant appearing in court, taking into account:

• their background and community ties, including details about where they live, employment, family situation and prior criminal record
• any previous failure to appear on bail
• the circumstances, nature and seriousness of the offence
• the strength of the evidence against the defendant and the severity of the penalty if found guilty; if evidence against the defendant is strong and a gaol sentence likely, the court or police might decide that the defendant is unlikely to appear, and therefore be inclined to refuse bail
• any specific indications as to the likelihood of appearing in court, for example, whether the defendant came voluntarily to police or was arrested trying to leave the country.

The interests of the defendant, and in particular:

• the length of time they would have to remain in custody before the case is heard - for example, the court would be reluctant to refuse bail if a conviction would not carry a prison sentence or if a defendant would only receive a three-month term of imprisonment after awaiting trial for nine months
• the conditions of custody, for example, if the defendant is sentenced during a gaol strike and would therefore be kept in inadequate or overcrowded conditions
• the need to obtain legal advice and prepare for the court appearance
• the need to be free for other lawful purposes, such as employment or education, or to care for dependants
• whether the defendant is incapacitated by injury, drugs or is otherwise in danger or in need of physical protection.

The protection of the community, taking into account:

• whether the person has failed to obey a bail condition previously
• the likelihood that the person will interfere with evidence, witnesses or jurors
• the likelihood that the person will commit an offence or break any bail condition while on bail
• the protection and welfare of the alleged victim, victim's family or other persons and their property in the case of an alleged Domestic Violence Act offence.

These are matters the court takes very seriously, particularly if it is concerned the defendant may try to contact prosecution witnesses.

The surety

Most defendants are released on bail on their own undertaking or recognisance, that is, a defendant signs the agreement and personally promises to appear and to comply with the conditions of the bail agreement. Sometimes, however, the court doesn't think this is sufficient. On these occasions the court may require a surety. Sureties are covered by section 27 of the BA.

A surety is a person who enters into a separate agreement known as a guarantee of bail. A surety personally guarantees that the person released on bail will comply with the bail agreement or with specified conditions of the bail agreement. The surety is required to agree to forfeit a sum of money if the person on bail fails to comply with the conditions of the bail agreement. A surety may also be required to deposit with the court cash or a form of security, such as the title deed to a house, as a condition of bail. Provided the defendant complies with the bail conditions, the surety will get their money or other security back at the end of the case. The surety can be any person, regardless of character or criminal record, but must be accepted by the court as a suitable person.

It is a criminal offence for the surety and the defendant to agree that the defendant will pay back to the surety any money forfeited by the surety arising from a breach of the bail agreement [BA s.45].

The person acting as surety can apply to the court to vary the terms of a guarantee of bail or to revoke it, for instance, if they believe that the person bailed is likely to abscond.

The court may then issue a summons or warrant for the arrest of the defendant. When the defendant appears in court, the court must, unless it would be unjust, discharge the surety and make a new bail decision. The surety can't apply for discharge if the accused has already failed to comply with bail.

A defendant or surety may apply to the court which forfeited bail for the return of all or part of the forfeited amount. A surety who has given an undertaking about bail in good faith and has done everything possible to ensure attendance by the defendant has some chance of successfully applying for the return of forfeited bail.

A person who agrees to act as surety should take their role very seriously because they stand to lose money if the person they have guaranteed fails to appear in court or comply with other conditions of bail.

Conditions of bail

Conditions should only be imposed in bail agreements where they are considered necessary for law enforcement purposes or for the protection and welfare of the community [BA s.28(1)].

Any conditions imposed must be no harsher than required, given the nature of the offence and the circumstances of the defendant [BA s.28(2)]. For example, a defendant charged with speeding can't be required to forfeit their passport, provide a cash surety and report to police seven days a week!

Conditions of a bail agreement can include [BA ss.27, 27A]:

• conditions regarding personal conduct. For example, a defendant can be required to live at a particular address, report to a police station on specified days, keep away from certain people, such as alleged co-offenders, victims or witnesses, keep away from specified places, and surrender their passport.
• the defendant or surety's agreement (without depositing a security) to forfeit a sum of money if the defendant fails to comply with an agreement (see The surety , this section).
• the defendant or surety's agreement (after depositing cash or an acceptable security) to forfeit their deposit if the defendant fails to comply (see The surety , this section).

Failure to comply with bail conditions

A defendant who fails to comply with bail conditions risks being arrested by police and brought to court. This can occur by not appearing in court, by breaking one or more specific conditions of a bail agreement (for example, by not living at a particular address or not reporting to police), or by committing a fresh offence while on bail. After listening to the defendant's explanation for the breach of bail, the court would then decide whether or not to extend, renew, forfeit or vary the defendant's bail.

A failure to appear on bail often results in the court issuing a warrant of apprehension [BA s.39] (see Investigation and arrest ). A person on bail who is unable to get to court on the day should contact their lawyer, the prosecutor's office or the court in advance to explain their absence. Although a failure to attend is a breach of a bail condition, if the court decides the defendant's explanation is satisfactory, it may issue a warrant to lie and adjourn the case for a brief period. Provided the defendant appears on the next occasion the warrant will lie in the court until then and not to be issued to police to arrest the person. If the person appears when due, the court can vacate the warrant, and bail can be extended or renewed.

If a defendant on bail doesn't appear at court, as well as issuing a warrant for their arrest, the court may order that bail be forfeited [BA s.40]. The court can also order that the person be imprisoned if they fail to pay the forfeited amount within 28 days. However, the person can later apply to the court to cancel, reduce or suspend the forfeiture order, provided there are good reasons to do so [BA s.41].

Review of bail decisions

When bail is refused, the reasons for the decision are recorded in writing on the court file and stated by the court.

When a judge makes a bail decision, an application for review can be lodged in the Supreme Court by either the Crown or an applicant for bail.

If a defendant receives bail and the police object to them being in the community, an application can be made to the court to have the person taken back into custody [BA s.36].

When reviewed, a bail application is reconsidered in the light of the defendant's current circumstances.

Different bodies have different rights to review bail decisions. For example:

• a JP can only review their own decisions or the decision of another JP in the event that that person is unavailable [BA s.34(a); Bail Regulations reg.4]
• a judge can review their own bail decision and any decision made by a JP, police officer or other judge in the event that that judge is unavailable [BA s.34(b); Bail Regulations reg.4]
• a Supreme Court judge can review any bail decision except a decision made by the Court of Criminal Appeal, a body which can alone review its own decisions BA s.35].

Termination of bail

A bail agreement is terminated when the case against the defendant is concluded, whether that is by conviction and sentence or by a finding of not guilty. In other words, once a bail agreement has been entered into, it continues until the charge against the defendant has been decided, unless it is revoked, varied or reviewed.