Presumption of bail

Section 10 of the Bail Act 1985 provides a statutory presumption in favour of bail, deriving from the common law principle that a person is innocent until proven guilty. In ordinary language, the presumption means that bail should be ganted unless there are good reasons for it being refused. The presumption applies to all bail applications except those made upon lodging an appeal against a conviction or sentence.

In theory, the only situation in which the Watchhouse sergeant or the sergeant of the police station at which the person is charged cannot grant bail is when the person is arrested on a first instance warrant for non-appearance in court which has been endorsed by the court as 'Not certified for bail' under s.5(2) of the Bail Act 1985 . In practice, the sergeant normally refuses police bail in serious matters such as homicides and armed robberies on the grounds of the gravity of the offence. Refusal of police bail effectively requires the person to remain in custody until the court sits on the following working day (or on the same day if the person is arrested early enough in the day) to apply to the magistrate (or if no magistrate is available, a court constituted by two justices of the peace) for a review of the refusal of police bail. Where no magistrate or justices are available in the vicinity, there are procedures for review by telephone; see refusal and review of bail decisions and Bail Act 1985 s.15(1).

The presumption in favour of bail being granted is subject to the following considerations:

the seriousness of the alleged offence
whether the applicant might abscond,offend again,interfere with evidence orhinder police inquiries
if necessary, the protection of the applicant for bail
any medical or other care that the applicant may require
any previous occasion where the applicant has contravened or failed to comply with a term or condition of a bail agreement
the need or perceived need of any victim of the alleged offence to be protected from physical violence (Bail Act 1985 s.10(4) provides that this must be given primary consideration)any other relevant matter, such as the strength of the evidence,any prior convictions the applicant may have, and,any other special need for the applicant to have bail.

The bail authority can question the applicant or any other person who may be able to provide information relevant to the application. If the bail authority is a court it can take evidence on oath from the applicant or any other person. It can also order a report about issues arising in a bail application. Such reports are prepared by officers of the Department for Correctional Services, or, in the case of a child the Department for Family and Youth Services.