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Applying for Bail

When a person is charged with criminal offences, they are presumed innocent until proven otherwise. Therefore, they have a qualified right to be free until a court decides if they are guilty or not guilty. In Western Australia, a person may be kept in custody on remand until they are required to attend court to answer the charges. This may be because the police have refused to grant the person bail, because a court has denied them bail or because they have chosen against applying for bail. 

What is bail?

Bail is the authorisation of a person who has been charged with offences from custody on the condition that they attend court when required and abide by other conditions. Bail gives an accused the right to remain at liberty in the community, rather than in custody while waiting for the charges to be finalised in court. In Western Australia, bail is governed by the Bail Act 1982.

Police bail

The decision whether or not to grant a person bail can be made by the police after a person has been arrested and given a notice to attend court. This will often occur if the charges are minor and/or the person does not have a criminal history. 

Magistrates Court bail

If the accused is not granted police bail, a police officer must bring them before a Magistrate as soon as practicable. Applying for bail in the Magistrates Court involves the defence telling the court why the accused should be granted bail and the prosecution making the case against the grant of bail. 

Supreme Court bail 

In some situations, an accused person may decide to apply to the Supreme Court to review a decision by a magistrate not to grant bail. 

Police bail

When a person is in custody after being charged with offences, they will generally be entitled to have their case for bail considered by the police as soon as practicable. In deciding the question of bail, a police officer will normally take into account how likely the accused person is to appear at their next court hearing and the risk of them interfering with witnesses, absconding, destroying evidence or reoffending. 

If a person is granted police bail they may have to sign a Bail Undertaking which places restrictions on what the person can do while on bail. If bail is refused by police then under the Bail Act 1982, the prisoner must be taken before a court as soon as reasonably practicable to make an application for bail should they wish to do so. 

At the court appearance, the accused person or their lawyer can make a bail application.

Applying for bail in court

When a defendant makes an application for bail, the court can either dispense with bail, grant bail (with or without imposing bail conditions), or refuse bail. In considering a bail application the court must consider the factors in Schedule 1, Part C of the Bail Act 1982. 

These factors include whether, if the person is not kept in custody, they are likely to:

  • fail to attend court in compliance with the bail undertaking
  • commit a criminal offence
  • endanger the safety, wellbeing, or property of a person
  • interfere with witnesses, or
  • obstruct the course of justice.

In considering whether any of these things will occur the court must also consider:

  • the seriousness of the offence the person has been charged with, and the nature of the offence;
  • their character and previous convictions;
  • their personal history, where they reside and their financial position;
  • their bail history; and
  • the likelihood of them being found guilty on their current charge/s.

Applying for bail on serious offences

Under the Bail Act 1982, when a defendant has committed a serious offence while released on bail or while released on an early release order for another serious offence, bail will be refused unless there are exceptional reasons why the accused should not be kept in custody. 

The court has wide discretion when deciding what constitutes exceptional circumstances, but these can include the person’s age and health status, the length of the likely delay before their matter is finalsied and the strength of any defence they may have. 

This same process applies if they have been charged with murder.

Effectively, this means that where the person applying for bail has been charged with murder, or with a serious offence whilst on bail for another serious offence, there is a presumption against the grant of bail.

Bail conditions

Bail may be granted subject to specific conditions. Schedule 1, Part D of the Bail Act 1982 lists the conditions that may be imposed when granting bail. The defendant may be required to enter into a personal undertaking, a surety undertaking, to reside at a fixed address and/or report to police regularly.

The court also can also impose protective bail conditions to ensure that a person does not endanger the safety of any person or any property, interfere with witnesses or otherwise obstruct the course of justice while at large in the community. A common protective bail condition is that the person must stay away from a particular person (such as the alleged victim) or from a particular place. A breach of a protective bail condition is a criminal offence.

What can you do if the court refuses bail?

If the Magistrates Court denies a person’s request for bail, then the person cannot make a further application before a magistrate unless new facts or circumstances have arisen, they have had a change in circumstances or there has been a past failure to adequately present a case for bail. 

The person may, however, apply for reconsideration of the Magistrate’s decision before a judge in the Supreme Court.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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