Bail

Contributed by Richard Davies and current to 16 December 2021.

All matters concerning the granting or refusal of bail by an authorised officer or by a court in the ACT are governed by the Bail Act 1992 (''Bail Act'').

What is bail?

The Bail Act defines bail as ‘an authorisation granted to a person under this Act to be at liberty’.

Bail is a decision in relation to the liberty or otherwise of a person accused of having committed a criminal offence (‘the accused’), between the time of arrest and verdict.

Bail is, in theory, aimed at ensuring that the accused re-appears in court either to face charges or be sentenced.

A decision to grant bail is made by either an authorised officer or the courts, and certain conditions or requirements may be attached to the grant. The Dictionary to the Bail Act defines an authorised officer as:

• the chief police officer;
• a police officer performing the functions of a superintendent or sergeant; or
• a police officer authorised in writing by the chief police officer.

Section 18(5) ACT Human Rights Act 2004 (''Human Rights Act'') provides:

If an authorised officer refuses bail, then the accused person must be brought before a court as soon as practicable after the accused person has been taken into custody and, in any case, within 48 hours of having been taken into custody – s 17 Bail Act, and s 18(4) Human Rights Act.

Consistent with the Human Rights Act, the Bail Act provides for an entitlement to bail for the vast majority of offences, with certain qualifications.

Minor offences

For the purposes of the Bail Act a minor offence is an offence that is either not punishable by imprisonment (for example, by a fine only) or an offence punishable by imprisonment for no longer than 6 months, see relevant s 8(1) Bail Act.

In these cases the accused person is entitled to be granted bail and if in custody, to be released from custody as soon as the accused person gives an undertaking to appear at court to answer the charge, see relevant s 8(2) Bail Act.

Previous failure to comply with an undertaking or breaches of bail conditions for same or a similar minor offence

The accused person, who has previously failed to comply with an undertaking to appear or a bail condition in relation to the same or similar offence, is entitled to be granted bail as per s 9A Bail Act, unless an authorised officer or the court decides that bail should be refused on a consideration of criteria set out in s 22 Bail Act for adults (see Criteria for granting bail to adults), and s 23 Bail Act for children (see Criteria for granting bail to children).

Offences that are not minor offences (other than offences for which there is no presumption for bail or a presumption against granting bail)

These are all offences that are not minor offences and are not one of the prescribed offences where there is no presumption for bail or a presumption against granting bail, or serious offences committed while on bail for another serious offence. See Offences for which there is no presumption for bail and Offences for which there is a presumption against bail.

In such cases the accused person is entitled to be granted bail as per s 9A Bail Act, unless an authorised officer or the court decides that bail should be refused on a consideration of criteria set out in s 22 Bail Act for adults (see Criteria for granting bail to adults), and s 23 Bail Act for children (see Criteria for granting bail to children).

Also, under s 8A Bail Act, an offender has the same entitlement to bail in relation to proceedings for the breach of sentence obligations (for example, failure to comply with the conditions of a good behaviour order or failure to perform community work ordered by the court) as they would have in relation to the offence.

Criteria for granting bail to adults

According to s 22 Bail Act, in deciding whether or not to grant bail, an authorised officer or the court is required to consider the following matters:

• the likelihood of the accused appearing in court to answer their bail;
• the likelihood of the accused committing a further offence if granted bail;
• the likelihood of the accused harassing or endangering the safety or welfare of anyone;
• the likelihood of the accused interfering with evidence, intimidating a witness or obstructing the course of justice; and
• the interests of the accused

if released on bail.

Other relevant criteria identified in s 22 Bail Act are:

• in the case of an indictable offence (that is, an offence punishable by more than a maximum of 2 years imprisonment) the likelihood of the person being sentenced to a term of imprisonment;
• the nature and seriousness of the offence;
• the accused person’s character (including whether he or she has a criminal record), background and community ties;
• the likely effect of a refusal of bail on the person’s family or dependents;
• any previous grants of bail to the accused and whether or not he or she has complied with the conditions of such bail; and
• the strength or weakness of the evidence against the accused.

Criteria for granting bail to children

All of the criteria for granting bail to adults apply equally to the granting of bail to children. However, under s 23 Bail Act, following are further criteria to be considered by the authorised officer or court in deciding whether or not to grant bail to a child:

• What is in the best interests of the child; and
• The Youth Justice Principles set out in s 94 Children and Young People Act 2008 for determining what is in the best interests of a child;
• If the decision in relation to the granting of bail is being made by a court, the court must also consider any report that has been provided to the court in relation to the child.

Section 94 of the Children and Young People Act 2008states that:

1. … in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles):
   (a) if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;
   (b) a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;
   (c) a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity;
   (d) if practicable and appropriate, decisions about an Aboriginal and Torres Strait Islander child or young person should be made in a way that involves their community;
   (e) if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible;
   (f) a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary;(g) children, young people and other young offenders should be dealt with in the criminal law system in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances;
   (h) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;
   (i) it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender's offence and the interests of the community.
2. The decision-maker may also consider any other relevant matter.
3. The youth justice principles are intended to be interpreted consistently with relevant human rights instruments and jurisprudence (for example, the Convention on the Rights of the Child)

Offences for which there is no presumption for bail

There are 27 offences listed in the first schedule to the Bail Act in relation to which there is no presumption in favour of granting bail. In addition, there are 7 offences listed in s 9B Bail Act in relation to which there is no presumption in favour of granting bail if the accused person has in the previous 10 years been found guilty of an offence involving violence or threatened violence.

This means that an authorised officer of a court must decide whether or not to grant bail after considering the criteria set out in s 22 Bail Act for an adult and ss 22-23 Bail Act for a child.

Offences for which there is a presumption against bail

As per s 9C Bail Act, there is a presumption against bail for the following 7 offences:

• murder;
• trafficking in a large commercial quantity of a controlled drug;
• manufacturing a large commercial quantity of a controlled drug for selling;
• cultivating a large commercial quantity of a controlled plant for selling;
• selling a large commercial quantity of a controlled plant;
• supplying etc a commercial quantity of a controlled drug to a child for selling;
• procuring a child to traffic in a commercial quantity of a controlled drug.

In these cases the accused person is not entitled to be granted bail unless he or she can satisfy the court that there are special or exceptional circumstances for granting bail.

Repeat offenders

Under s 9D Bail Act, of a person is accused of a serious offence (defined as an offence punishable by imprisonment for 5 years or more) and the person is alleged to have committed the offence while a charge for another serious offence is outstanding or pending, the person must not be granted bail unless there are special or exceptional circumstances existing in favour of granting of bail.

Applying for bail

An accused person may apply for bail on their first appearance before the Magistrates Court.

Legal Aid ACT will assign a duty lawyer to an accused person in custody who is appearing in court for the first time to apply for bail, without needing to first apply for a grant of legal aid or satisfy any of the usual eligibility criteria for a grant of legal aid.

If the court refuses bail the accused person may apply for bail a second time as if it were a first time application.

However for any third or subsequent application for bail or the review of a bail decision in the Magistrates Court, the accused person must first satisfy the court:

• that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or
• that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.

Similar pre-conditions apply in relation to bail applications and the review in the Supreme Court of a decision by the Magistrates Court or an authorised officer.

Bail conditions

After hearing an application for bail a court may decide to dispense with bail altogether. The sections 10-12 Bail Act are relevant.

Alternatively the court may release the accused person on bail on his or her own undertaking to appear at court with or without further conditions.

Section 25 Bail Act contains examples of common bail conditions which an authorised officer or the court may attach to a grant of bail if appropriate in the circumstances of a particular case.

Examples of conditions commonly imposed include:

• a requirement that the accused person report to a police station on specified days and between specified times (e.g. report to the Tuggeranong Police station each Monday, Wednesday and Friday between 8.00 a.m. and 8.00 p.m.);
• a requirement that the accused person reside at a specified address;
• a requirement that the accused person not leave his or her residential address except in the company of a specified person (for example, a parent or carer);
• a requirement that the accused person accept the supervision of ACT Corrective Services while on bail;
• a requirement that the accused person not contact, harass, threaten or intimidate, or cause someone else to contact, harass, threaten or intimidate, a stated person;
• a requirement that the accused person not be at or within a specified distance of an address where a stated person (for example, the complainant or a witness) lives or works;
• a requirement that the accused person not consume alcohol or an illicit drug;
• a requirement that the accused person not be intoxicated in a public place.

However a bail must only contain conditions that are considered necessary to achieve one or more of the following objectives:

• the attendance of the accused person before a court;
• the protection from harm of the accused person or any other person;
• the prevention of the accused person from committing an offence while at liberty on bail;
• the prevention of the accused person from interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice.

Sureties

In addition to imposing bail conditions, an authorised officer or a court may in addition require:

• that the accused person or one or more acceptable persons (called a surety) agree to pay a specified sum of money to the Territory should the accused person fail to appear at court in accordance with his or her bail undertaking; and/or
• that the accused person or one or more acceptable persons provide security for the payment of such sum of money (for example title deeds to land);
• that the accused person or one or more acceptable persons deposit a specified sum of money with the court which will be forfeited to the Territory if the accused person fails to appear in court in accordance with his or her bail undertaking.

If a surety applies to the court to be discharged from his or her liability and the court agrees to discharge the surety (and release the security or moneys deposited with the court) the court may impose further bail conditions on the accused person and remand the accused person into custody until the further conditions are satisfied (for example, until a new surety comes forward) - s 36 Bail Act.

Refusal of bail

An authorised officer or a court has a discretion to refuse bail to an accused person, with the consequence that the accused person will be remanded in custody at the gaol until such time as a court either grants bail or the proceedings are concluded.

Bail will be refused if there is an unacceptable risk that the purposes of bail will not be achieved by the release of the accused person on bail. Common grounds for refusing bail are:

• the accused person will not attend court to answer his or her bail (for example, if the accused person has a history of failing to attend court);
• to protect the accused person or any other person from harm (for example if the accused person has threatened self-harm or to harm another person);
• to prevent the accused person from committing further offences while at liberty on bail;
• to prevent the accused person from interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice.

The offence of failing to answer bail

According to s 49 Bail Act, a person who has been granted bail upon his or her undertaking to attend court on a specified day at a specified time without a reasonable excuse is guilty of an offence punishable by up to 2 years imprisonment.

Breach of bail

According to s 56A of the Bail Act, a police officer may arrest a person without a warrant whom he or she believes on reasonable grounds to have failed to comply with a condition of their bail or will fail to comply with a condition of their bail. If a police officer believes on reasonable grounds that the person is in premises, the officer may enter the premises for the purpose of searching for or arresting the person - Section 56AA Bail Act.

Review of bail decisions

The Magistrates Court may review a bail decision by the Magistrates Court if satisfied that the accused person has shown:

• that there has been a change in circumstances relevant to the granting of bail since the last bail decision by an authorised officer or the court; or
• that there is fresh evidence or information of relevance to the granting of bail that was unavailable when the last bail decision was made.

But only after the accused person has made two applications for bail in the Magistrates Court. Sections 42 and 42A Bail Act are relevant.

Under s 43A Bail Act, the Supreme Court may review a bail decision by the Magistrates Court or the Supreme Court on the same pre-conditions but only after the Magistrates Court has exercised a power of review of a bail decision or the Supreme Court has previously made a bail decision.

Both the Magistrates Court and the Supreme Court may review a bail decision by an authorised officer on the same pre-conditions.