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How a Court Determines Whether to Grant Bail

Section 22 of the Bail Act 1992 sets out what a court must consider when deciding a bail application made by an adult in the ACT. It states that when deciding on whether to grant bail, a court or authorised officer must consider:

  • the likelihood of the person appearing in court in relation to the offence; and
  • the likelihood of the person, while released on bail
    • committing an offence; or
    • harassing or endangering the safety or welfare of anyone; or
    • interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else;
  • the interests of the person;
  • the likelihood of a sentence of imprisonment;
  • relevant matters such as:
    • the nature and seriousness of the offence; or
    • the person’s character, background and community ties; or
    • the likely effect of a refusal of bail on the person’s family or dependants; or
    • any previous grants of bail to the person; or
    • the strength of the evidence against the person.

Bail applications by children

The Act provides extra criteria for granting bail to children, with the best interest of the child being a primary consideration. When a child applies for bail, the principles set out in the Children and Young People Act 2008 must also be considered. These are:

  • A child (under 12 years old) or young person (12 years or older, but younger than 18) 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.
  • 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.
  • 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.

A court hearing a criminal proceeding in relation to or against a child or young person may order the director‑general responsible for the Children and Young People Act to provide to the court a report about the child or young person and that report, if ordered, must be considered when the court is deciding bail.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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