The Likelihood of bail being granted

Whether you are likely to be granted bail depends largely upon the seriousness of the offence charged and your past offending behaviour, if any. The Bail Act grades offences and offenders into certain categories. The category you are placed in will affect your chances of getting bail.

The bail laws are complex. We have tried to simplify the content on this page so that people can understand the basic principles. However, it may be that you are unable to identify which category you fall into. If this is the case, please call Armstrong Legal on 1300 038 223 and we will let you know.

Right to Be Released on Bail for Minor Offences

You have the right to be released on bail if:

• You were charged with an offence not punishable by imprisonment (except in default of payment of a fine).
• You were charged with an offence punishable by imprisonment for not longer than 6 months.
• You were arrested for a breach of the peace or apprehended breach of the peace.
• You were arrested under a warrant because of failure to comply with a summons or subpoena.
• You were brought up to attend a trial or hearing following the issue of a habeas corpus order.

However, you do not have this right if:

• You have failed to appear at court.
• You have previously failed to comply with a bail undertaking or bail condition imposed in respect of the offence.
• You are incapacitated by intoxication, injury or use of a drug, or are otherwise in danger of physical injury or in need of physical protection.
• You stand convicted of the offence and your conviction for the offence has been stayed.
• You are in custody serving a sentence in connection with some other offence and are likely to remain in custody for a longer period than that for which bail in connection with the new offence would be granted.

Presumption in Favour of Bail

Where there is a presumption in favour of bail, it is expected that bail will be granted, unless you have been convicted of the offence by a court or the court is satisfied that certain criteria under the Bail Act 2002 (ACT) justify refusing to grant bail.

The presumption in favour of bail applies to all offences except the specific circumstances outlined below. It also applies where a person has not been entitled to the right to release on bail for a minor matter merely because they have previously failed to comply with a bail undertaking imposed in respect of that offence, or because they have failed to appear in court in respect of a minor matter.

No Presumption in Favour of Bail

The presumption in favour of bail does not apply where:

• The right to release or presumption against bail applies.
• You have been accused of treason (Criminal Code Act 1995(Cth), Section 80.1).
• You have been convicted of an indictable offence but not sentenced.
• You have been accused of any of the following offences, and if you have in the previous 10 years been found guilty of an offence involving violence or the threat of violence:

• You have been accused of any of the following offences:

Presumption Against Bail

Where you have been charged with one of the following offences, bail will ordinarily be refused and you must show “special or exceptional circumstances” to satisfy the court that bail should be granted. Even if such circumstances are shown, bail can still be refused on the usual bail criteria.

The presumption against bail applies to:

The presumption against bail applies also to:

• A person accused of a serious offence (that is, an offence punishable by five years’ imprisonment or more) and it is alleged that that offence was committed while the person had another serious-offence charge pending or outstanding (that is, being heard or about to be heard by a court).
• A person who has been convicted of an offence and sentenced to prison and has an appeal pending.
• A person accused of a domestic-violence offence. The authorised officer (usually the arresting police) must not grant bail unless satisfied that the person poses no threat to the alleged victim. Even if so satisfied, bail may still be refused on the usual criteria.

Special or Exceptional Circumstances

The Bail Act makes clear that a circumstance that would be an applicable (or usual) bail criterion is not a special or exceptional circumstance only because it is an applicable bail criterion.

The court or authorised officer must consider the applicable bail criteria for the person only after the court or authorised officer is satisfied of the existence of special or exceptional circumstances.

The Bail Act provides examples to show the high threshold of “special or exceptional circumstances”. They are:

1. Damien is before court charged with aggravated robbery. He has earlier been charged with having committed aggravated robbery. Damien argues that there are special circumstances as he needs to support his child, he may lose his job and he may lose an opportunity to take up public housing. The court considers that the circumstances are not special or exceptional. Bail is not granted and the usual criteria are not considered.

2. Jason is facing similar charges. Jason has had a car accident before his arrest for the second offence. His kidneys are damaged, requiring dialysis every 3 days. Jason argues that his need for regular treatment and his reduced mobility mean that he is highly unlikely to abscond. The court considers these circumstances are special or exceptional. The court then considers the usual criteria in deciding whether to grant bail.

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