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Bail

Applications for bail in all courts are generally governed by the Bail Act 1985 (SA), which applies to both South Australian and Commonwealth offences.

What is bail?

Bail is an agreement in which a person makes a written undertaking to the court. A person who is in custody because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on bail. Normally in signing a bail agreement a person undertakes:

  • to be present every time the matter is in court until the proceedings are finished;
  • to comply with any conditions set out in the agreement as to conduct while on bail see Conditions of bail; and
  • to forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement.

Variation or revocation of bail

Although a bail agreement is intended to continue until the court proceedings have ended one way or another, the authority granting bail or the court, can at any time vary the conditions of an agreement, or revoke it altogether (for example, where there is reason to believe that the person on bail does not intend to appear at court or because the person has committed a further offence).

In general terms the two authorities that may grant bail are the police and the courts [s 5 Bail Act 1985 (SA)].

Police bail

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 the responsible officer (officer in charge of the police station or a police officer who has been designated the responsibility by the officer in charge for people accepted into custody of that station) of the police station [s 5(1)(e)(iii)-(iv) Bail Act 1985 (SA)].

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 (SA). 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 [s 4 Bail Act 1985 (SA)].

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 [s 5(1)(e)(ii)].

A person who is not released on bail by the police, must be brought before a court as soon as reasonably practicable but in any event not later than 4.00pm. on the next working day following arrest [s 13(3)]. The person may then apply to the court for bail or for review of the refusal of bail.

Court bail

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

  • the person has not yet been tried or committed for trial;
  • the person has been convicted of an offence but has not yet been sentenced;
  • the person has been convicted and sentenced but intends to appeal;
  • the person has been found not guilty due to mental incompetence, and has been declared liable to supervision, but final orders about the terms of supervision have not yet been made; or
  • the person is appearing in court for failing to observe a condition of an agreement (such as a bond).

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:

  • people arrested on outstanding warrants of apprehension issued due to prior failure to answer bail or summons, or because the whereabouts of the person was not known so they were not able to be summonsed. See Warrants;
  • people arrested on fresh charges and refused bail by the Watchhouse sergeant;
  • a combination of the above. The person may have been arrested on a fresh charge and a warrant check will have revealed that he/she also has outstanding warrants people arrested for breach of bail agreements;
  • people who have been unable to satisfy a condition of bail previously set (such as a condition requiring a guarantor);
  • people who are to appear in court as a witness and have been arrested on a warrant because they have failed to attend court in answer to a witness summons.

Applying for bail

The police officer who arrests a person eligible to apply for release on bail must:

  1. as soon as reasonably practicable after delivering the arrested person to the police station or facility, take reasonable steps to ensure the person understands that they are entitled to apply for bail; and
  2. ensure that the person is given a written statement explaining how to apply for bail and the appropriate form to do so [s 13 Bail Act 1985 (SA)].

An application for bail is made on a simple form which is available in both police stations and courts. The bail authority (that is, the court or person to whom the application is made) can allow an application to be made in some other way (for example, someone who has any difficulty completing the form can ask to make the application orally) [s 8(1)(a) Bail Act 1985 (SA)].

The police must give as much assistance as is reasonably required to anyone in their custody to complete a written application [s 8(2)(a) Bail Act 1985 (SA)].

A child under 18 years can be assisted by a parent or guardian to make this application [s 8(2a) Bail Act 1985 (SA)].

A person who knowingly provides false information on a bail application is guilty of an offence and faces a fine [s 22 Bail Act 1985 (SA)].

Persons not eligible for bail

If a person who has been arrested is being detained pursuant to the Summary Offences Act 1953 (SA) for a purpose related to the investigation of an offence, the person is not eligible for release on bail until the end of that detention [s 4(2) Bail Act 1985 (SA)].

Additionally, a person is not eligible for release on bail if the person is being detained under Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA) [s 4(3) Bail Act 1985 (SA)].

Presumption of bail

Section 10 of the Bail Act 1985 (SA) provides a presumption in favour of bail. The presumption means that bail should be granted unless there are good reasons for it being refused.

The presumption does not apply to bail applications made upon lodging an appeal against a conviction or sentence, or where section 10A applies (see below).

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, hinder police inquiries or intimidate or bribe witnesses to commit perjury;
  • the likelihood of the applicant committing a breach of an intervention order (previously known as restraining orders) under the Intervention Orders (Prevention of Abuse) Act 2009 (SA);
  • if necessary, the protection of the applicant for bail;
  • any medical or other care that the applicant may require;
  • any previous occasion(s) where the applicant has contravened or failed to comply with a term or condition of a bail agreement; or
  • 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.

[s 10(1) Bail Act 1985 (SA)]

The presumption in favour of bail being granted is also subject to a primary consideration of the need, or perceived need, of any victim of the alleged offence to be protected from physical violence [Bail Act 1985 (SA) s 10(4)].

Section 10A of the Bail Act 1985 (SA) removes the presumption in favour of bail in certain cases, and requires the person applying for bail to convince the bail authority that there are special circumstances justifying bail before the bail authority can grant bail. Section 10A applies if an applicant was taken into custody for:

  • any of the following offences committed or alleged to have been committed in the course of using a motor vehicle in an attempt to escape pursuit by a police officer or in an attempt to entice a police officer to engage in a pursuit:
  • manslaughter [Criminal Law Consolidation Act 1935 (SA) s 13],
  • causing death or harm [Criminal Law Consolidation Act 1935 (SA) s 19A],
  • acts endangering life or creating risk of serious harm [Criminal Law Consolidation Act 1935 (SA) s 29];

  • breach of a bail condition that relates to the physical protection of a victim of a previous offence with which the applicant has been charged [Bail Act 1985 (SA) ss 17 and 11(2)(a)(ii)];
  • contravention of an intervention order where the act alleged to constitute the offence involved physical violence or the threat of physical violence;
  • suspicion of having committed serious and organised crime;
  • contravening or failing to comply with a control order or public safety order that was issued under the Serious and Organised Crime Act 2008 (SA);
  • an aggravated offence involving physical violence or a threat of physical violence where an aggravating circumstance of the offence is that, at the time of the alleged offence, the applicant is alleged to have contravened an intervention order of a court and the offence lay within the range of conduct that the intervention order was designed to prevent;
  • an offence of blackmail [Criminal Law Consolidation Act 1935 (SA) s 172];
  • an offence of making a threat or reprisal against an individual or property that relates to persons involved in criminal proceedings or judicial proceedings [Criminal Law Consolidation Act 1935 (SA) s 248];
  • making a threat or reprisal against a public officer [Criminal Law Consolidation Act 1935 (SA) s 250];
  • causing a bushfire [Criminal Law Consolidation Act 1935 (SA) s 85B];
  • a serious firearms offence [Criminal Law Sentencing Act 1988 (SA) part 2 div 2AA for definition];
  • both a serious drug offence (as defined under section 34 of the Controlled Substances Act 1984 (SA)) and a serious offence against the person (according to the meaning of section 74EA of the Summary Offences Act 1953 (SA)).

Under section 10A(1a) a bail applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist unless the applicant also establishes, by evidence verified on oath or by affirmation, that he or she has not previously been convicted of a serious crime offence or an offence that would have been a serious and organised crime offence had it been committed in South Australia.

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 Education and Child Development.

Guarantors

A person may be released on bail on his or her own undertaking (that is, the person signs the agreement and personally guarantees to appear and comply with the conditions of the bail agreement). Sometimes, a guarantor is required.

A guarantor enters into a separate agreement known as a guarantee of bail, in which he or 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 [s 7 Bail Act 1985 (SA)].

A guarantor must be at least 18 years of age [s 7(6)].

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 in addition to forfeiting a sum of money [s 17A].

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, to vary the conditions of the guarantee of bail or to revoke it at any time [s 7(4)].

Conditions of bail

It is a condition of every bail agreement that the person released on bail must not leave the State for any reason without the permission of the court before which the person must appear, or some other authority specified in the bail agreement [see s 11(6) Bail Act 1985 (SA)].

Every bail agreement is also subject to the following conditions:

  • that the person released on bail be prohibited from possessing a firearm, ammunition or any part of the same [s 11(1)(a)]; and
  • that the person released on bail submit to gunshot residue testing as reasonably required [s 11(1)(b)].

However these may be varied or revoked if the bail authority is satisfied that there are cogent reasons to do so and there is no undue risk to the safety of the public [s 11(1a)].

A bail authority may further impose the condition that the applicant surender any firearm, ammunition or part of the same owned or possessed by them [s 11A]. The maximum penalty for failing to comply with this direction is $10 000 or 2 years imprisonment [s11A(2)].

A bail authority may further impose the following conditions on a bail agreement:

  • the applicant for bail reside at a specified address;
  • home detention;
  • conditions relating to the physical protection of a victim;
  • supervision by a community corrections officer;
  • the applicant report to police;
  • surrender of any passport;
  • the applicant provides written assurances from acquaintances that the applicant will comply with the conditions of bail;
  • forfeiture of a specified sum of money if the applicant fails, without proper excuse, to comply with any term of the agreement;
  • the applicant lodges with the court security of a specified amount or value, to secure payment of the money stipulated in the bail agreement;
  • the applicant obtains specified guarantees or a guarantee of a special nature;and
  • that the guarantor lodges with the court security of a specified amount or value to secure payment of the money stipulated in the guarantee agreement.

    [s 11(2) Bail Act 1985 (SA)]

Further conditions can be imposed on serious and organised crime suspects [see s 11(2aa)], and suspects of child-sex offences [see s 11 2(ab)].

All conditions imposed have to be written in the bail agreement [s 11(7)].

Conditions about the payment of money should not be imposed unless the bail authority is of the opinion that there is no other way to make sure that the applicant will comply with the agreement [s 11(5)].

Refusal and review of bail conditions

When bail is refused the bail authority must record the reasons for the decision in writing [s 12(1) Bail Act 1985 (SA)].

Refusal of bail does not preclude futher applications for bail [s 12(2) Bail Act 1985 (SA)].

Review by a magistrate

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 [ss 14(1)-(2) Bail Act 1985 (SA)].

The application is treated as a fresh application, and the court must hear and determine it as expeditiously as possible [see ss 14 (3)-(5)].

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, or a longer fixed period if the magistrate or Supreme Court are satisfied that there is a proper reason for it [see s 16 Bail Act 1985 (SA)].

Telephone review

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 [Bail Act 1985 (SA) s 15(1)(c)]. Police sometimes allow this without a written request, and where the original bail application was not required to be in writing then this application can also be made orally [s 15(4)] .

This type of review is primarily for arrests on weekends or in remote areas where a court is not readily available.

The police officer must contact a magistrate as soon as possible after the application is received, or if the original police officer is not available, contact another police officer of or above the rank of sergeant or the responsible officer of the station [s 15(5)].

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 [s 15(6)(c)].

When telephone review applications are not available

Telephone review of a bail application is not available to adults who are arrested and denied police bail if they can be brought before the Magistrates Court by no later than 4pm on the next day [s 15(2)].

It also does not apply to an adult prescribed applicant and in these cases there is a presumption against bail [s 10A]. A prescribed applicant is a person who has been charged with specified serious crimes such as use of a vehicle to commit an act to endanger life or cause serious harm whilst attempting to escape (or entice) police pursuit; serious firearm offences; aggravated offences involving physical violence resulting in a breach of an intervention order; or a person who is a serious and organised crime suspect. See Presumption of bail for a more comprehensive list of prescribed applicants covered by section 10A(2) of the Bail Act 1985 (SA).

Review by the Supreme Court

Decisions made by magistrates on bail applications can be reviewed by the Supreme Court [s 14 Bail Act 1985 (SA)]. 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 [ss 14(2) -(5)].

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, or a longer fixed period if the magistrate or Supreme Court are satisfied that there is a proper reason for it [see s 16 Bail Act 1985 (SA)].

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 [see s 15A].

See Supreme Court Bail Review Rules 1985.

There is no appeal from the Supreme Court refusal.

Enforcement of bail agreement

Arrest on non-compliance

When it appears to a court that a person has broken a term or condition of bail the Court can: revoke the bail agreement [s 18(1)(a) Bail Act 1985 (SA)]; and issue a warrant for the person's arrest [s 18(1)(b)].

A member of the police force who has reasonable grounds for believing that a person intends to abscond or is contravening or failing to comply with (or has contravened or failed to comply with) a bail agreement, can arrest the person without a warrant [s 18(2)].

Penalty for non-compliance

A person who, without reasonable excuse, breaches, or fails to comply with, a term or condition of their bail agreement is guilty of an offence.

Maximum penalty: $10 000 or 2 years imprisonment

[s 17(1) Bail Act 1985 (SA)]

However the penalty imposed must not be more than the maximum penalty that can be imposed for the offence for which the person is charged. For example, the person may be charged with disorderly conduct under section 7 of the Summary Offences Act 1953 (SA), which carries a maximum penalty of $1 250 or 3 months imprisonment, then the maximum penalty that can be imposed for a breach of bail in relation to this offence is $1 250 or 3 months imprisonment [s 17(2) Bail Act 1985 (SA)].

The penalty for a breach of bail is in addition to any penalty for the original offence and any order for the forfeiture of an amount of money that may have been specified in the bail agreement [s 17(3) Bail Act 1985 (SA)].

When a bail agreement has been breached, an order for forfeiture can be made whether or not the person in breach of bail is charged with a bail offence [s 19(1)]. An order for forfeiture may also be made against a guarantor in respect of any amount of money specified in the guarantee [s19(1)]. These orders for forfeiture are known as estreatment orders.

A person against whom an estreatment order has been made may apply to the court for the reduction of the amount or for the order to be rescinded [s 19(3)].

Termination of bail

A bail agreement is terminated when the person is sentenced, or acquitted, or the charges are withdrawn [Bail Act 1985 (SA) s 20].

In other words, once a bail agreement has been applied for and entered into, it continues, unless at some time a review of bail is applied for by the police or the Crown, or the agreement is revoked - until the charge against the person has been decided.

    Bail  :  Last Revised: Tue Oct 7th 2014
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