A person who has been arrested can make a bail application to any police officer who is of or above the rank of sergeant or who is in charge of the police station. However, a person is not eligible to apply for bail while being detained for purposes related to the investigation of an offence pursuant to the Summary Offences Act, 1953. In that case, before applying for bail, he or she must wait until detention for that purpose has finished or until charged with an offence. Where the application for bail is unsuccessful an application may be made for a review of the decision, see refusal and review of bail decisions. If a person has been arrested on a warrant issued by a court, and the warrant contains a clause prohibiting bail, then bail cannot be granted by a police officer.

A person who is not released on bail by the police, must be brought before a court as soon as reasonably practicable on the next working day after the arrest, but in any event not later than 4.00pm. on that day. The person may then apply to the court for bail or for review of the refusal of bail.

Any time a person appears before a court, that court has the power to grant bail. This is true whether:

Even if a person is not already in custody a court may require them to enter into a bail agreement before they are free to leave the precincts of the court.

The duty solicitor can help people in police custody to apply for bail in the Magistrates Court or the Youth Court. People in custody who need this assistance may include:

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 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.

Sometimes a person is released on bail on his or her own undertaking(that is, the person signs the agreement and personally guarantee to appear and comply with the conditions of the bail agreement). At other times a guarantor is required [Bail Act 1985 s.7].

A guarantor enters into a separate agreement known as a guarantee of bail, in which he/she guarantees that the person who is released on bail will comply with the bail agreement or with specified conditions of the bail agreement, and may be required to forfeit a sum of money if the person on bail fails to comply with a term or condition of the bail agreement. If a guarantor knows or reasonably suspects the person has breached a term or condition of the bail agreement the guarantor must take reasonable steps to notify the police or otherwise faces a fine of up to $1000 [Bail Act 1985 s.17a] in addition to forfeiting a sum of money.

A guarantee of bail is a serious, binding obligation and a guarantor will only be released from an obligation in extreme circumstances. A guarantor can apply to the court, which has the matter before it, to vary the conditions of the guarantee of bail or to revoke it at any time.

A person who is refused bail by the police or by a court constituted of justices, may apply for a review of that decision by a magistrate. If bail was granted, the Crown may apply for such review. The application is treated as a fresh application, and the court must hear and determine it as expeditiously as possible. In Crown applications, if counsel appearing for the Crown or a police officer tells the bail authority that an application for review is to be made, then the bail authority must delay the release of the applicant until after the review, or for a period of 72 hours, whichever first occurs. If the review is not heard within 72 hours the applicant must be released.

A child who is refused bail may ask that the matter be reviewed by the Youth Court. This must be done as soon as reasonably practicable.

If there is no magistrate in the immediate vicinity who can review the decision, the person can request, in writing, that the decision be reviewed by a magistrate over the telephone. Police in police stations often allow this to happen without a written request. The bail authority who made the decision must contact a magistrate as soon as possible after the application is received. In the course of making inquiries and reviewing the decision the magistrate must speak to the applicant for bail or any legal practitioner or other person representing or assisting the applicant. This type of review [Bail Act 1985 s.15] is primarily for arrest on weekends or in remote areas where a court is not readily available. It is not available to an arrested person who can be brought before a justice before 4.00pm on the next day following the arrest.

Decisions made by magistrates on bail applications can be reviewed by the Supreme Court. This review is available to the Crown as well as an applicant for bail. The application is treated as a fresh application, and the court must hear and determine it as expeditiously as possible. If counsel appearing for the Crown or a police officer tells a court that an application for review is to be made then the court must delay the release of the applicant for bail until after the review or for a period of 72 hours, whichever first occurs. If the review is not heard within 72 hours the applicant must be released.

Where a magistrate has reviewed a decision of a bail authority, that magistrate's decision can also be reviewed upon application by the person refused bail, or the crown. Such review is heard in the Supreme Court, but the leave of the court must first be obtained. To be granted leave the applicant must show that there was an error of fact or law.

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These are warrant of apprehension issued in a higher jurisdiction (District Court or Supreme Court).

They are issued because the defendant either failed to answer bail in that jurisdiction following committal of an indictable matter or failed to answer a summons to appear in relation to estreatment of bond proceedings.

Warrants known as warrant of commitment were once issued in South Australia for unpaid fines. The power to issue such warrants no longer exists in this State.

Courts in other States may issue warrant that are enforceable in South Australia. These may be for unpaid fines or for offence not yet finalised. A person arrested on such a warrant has a right to apply for bail.