Bail

Contributed by AndrewRobson and current to 27 July 2018

After a person is arrested on a charge they are in the custody of the police. Bail is the conditional release of a person from custody.

Every accused in custody has the right to have his or her case for bail considered in accordance with the provisions of the Bail Act 1982 (WA) (s.5).

Who can grant bail?

Judicial officers and authorised officers (defined in s.3) have a duty to consider an accused’s case for bail (ss.6, 7).

An authorised officer is a police officer who is a sergeant or has a higher rank or oversees a lock up.

An authorised officer cannot grant bail to a person who is on bail or an early release order for a serious offence and is charged with a further serious offence or to a person who is arrested on a warrant.

If the accused is in custody on a charge of murder only a Judge of the Supreme Court (or in the case of a child accused, a Judge of the Children’s Court) has jurisdiction to hear the application for bail (s15).

Otherwise, the jurisdiction of any authorised officer or judicial officer to grant or refuse bail is determined by reference to Part A of the Schedule to the Bail Act.

A Supreme Court Judge (or in the case of a child accused, a Judge of the Children’s Court) has jurisdiction to grant or refuse bail in all cases on the application of the prosecution or the accused (s14).

In general, an accused may not apply for bail from a Magistrate more than once unless there has been a change of circumstances since the last application.

If a Magistrate refuses bail, a further application may be made to the Supreme Court (s.14).

If the Supreme Court refuses bail, the accused is barred from applying for bail again, unless he or she can demonstrate a change of circumstances since the last application.

Bail conditions

The key condition of bail is that a person comes to court on the day on which they promise to appear. If they break their promise then the court can order that the police arrest the person through the issue of a bench warrant.

An accused who cannot attend court because of illness or some other reason should notify the Clerk or Registrar of the court as soon as possible and provide a medical certificate.

If the accused or a surety changes their address or employment details from the one on the signed bail undertaking then they must notify the change in writing to the clerk of the relevant court (s.60).

Surety

A common condition of bail is that the person bailed agrees to forfeit an amount of money if bail is breached by failing to appear as required.

Other conditions can include a requirement to reside at an address, not to contact prosecution witnesses and regular police reporting requirements.

Another common condition of bail is that a person who has a charge organise a surety.

A surety is a person who promises to ensure that an accused attends court on the day that they are meant to.

The surety must be of good character, known to the person concerned and be prepared to pay an amount of money if the person concerned does not attend court on the day and time stated in the bail undertaking.

The surety must be approved by any person authorised under s36 of the Bail Act 1982 (WA).

A surety can either undertake to be the surety until next court appearance or until the case is completed.

If the surety wishes to withdraw then they need to produce the accused to the police before the accused’s next appearance.

They can appear in court in advance of the next appearance and ask that the magistrate issue an order that the accused be arrested.

Only if the accused is in custody on the day of the scheduled appearance will the surety avoid the forfeiture of the amount they promised to pay on their undertaking. That is, a surety’s obligations continue until the accused is brought to court in advance of the scheduled court appearance and an order is made cancelling the surety’s undertaking.

Criteria for granting of bail

The principles governing the grant or refusal of bail are contained in Part C of Schedule 1 of the Bail Act.

It provides that the grant or refusal of bail is at the discretion of the judicial officer, but that the discretion must be exercised having regard to several factors.

In summary, the court must consider whether, if the accused is not held in custody, he or she may fail to appear; commit an offence; endanger the safety, welfare or property of any person; or interfere with witnesses or obstruct the course of justice.

The court must also consider whether there are any conditions that may be imposed on a grant of bail to overcome the above concerns.

In determining these questions, the court must have regard to the following matters the nature and seriousness of the offence; 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; and the strength of the evidence.

If a person is on bail or an early release order for a serious offence as defined in the Bail Act and they are charged with a further serious offence, then they will need to show exceptional reasons for bail to be set.

A person awaiting the determination of an appeal (other than an appeal from a Magistrates Court conviction or sentence) will only be granted bail if there are exceptional reasons why that person should not be held in custody.

Exceptional reasons, in this context, will only be found where it appears that the appeal is very likely to be successful or where there is a risk that the sentence will be served by the time the appeal is heard.