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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.

Breach Of Bail (WA)


If a person is charged and released on bail, they must sign an “undertaking of bail”. By this undertaking the person agrees to attend court as directed and abide by bail  conditions. A breach of bail is considered a serious offence in Western Australia, by police and the courts. If a person does not comply with their bail conditions, they can be arrested without a warrant and charged. Bail in Western Australia is governed by the Bail Act 1982.

Bail breaches

Under section 51 of the Act, a person on bail who fails to comply with their conditions, without a reasonable excuse, commits an offence. They are liable to a fine of up to $10,000 or imprisonment for up to 3 years, or both. They can also be ordered to pay the costs associated with the breach.

Bail conditions are imposed to reduce the likelihood that the person on bail will:

  • fail to appear in court or surrender into custody as required;
  • commit an offence;
  • endanger the safety or welfare of others;
  • interfere with a witness or otherwise obstruct the course of justice;

Such conditions may:

  • impose home detention;
  • prohibit the person from contacting specific people or groups;
  • require the person to surrender a passport or prohibit them from applying for one;
  • require the person to undergo a physical or mental health assessment;
  • require the person to take part in a rehabilitation, treatment or other intervention program;
  • require the person to abide by a curfew.

Home detention

Home detention can be imposed as a bail condition if:

  • a person is aged over 17; and
  • a community corrections report on the person and their circumstances has been considered;
  • the place of home detention is suitable;
  • the person will not be released on bail unless a home detention condition is imposed.

A person subject to a home detention condition cannot leave their home except:

  • to work or to seek work;
  • to obtain urgent medical treatment;
  • to avert or minimise a serious risk of death or injury;
  • to obey a written law, such as a summons;
  • for a purpose approved by a community corrections officer;
  • on the direction of a community corrections officer.

A person in home detention who is aged over 18 may be subject to electronic monitoring, via the wearing of a tracking device or the installation of a monitoring device at the person’s home.

Procedure for a suspected bail breach

If a court reasonably believes a person has broken or is likely to break a bail condition, it can issue a warrant for that person’s arrest. The court has several options. It can:

  • revoke bail, remand the person in custody, and direct that the person be brought before the court at a specific time;
  • release the person on their original undertaking, or vary it.

Sureties

A surety refers to a person who pledges to pay a specified amount if a person on bail does not comply with bail conditions. The surety’s undertaking is backed by a security, usually money or a house, which is forfeited in the event of a breach. The term surety can also refer to the specified amount undertaken to pay.

A surety must:

  • be aged at least 18;
  • not be a party to a restraining order with the person on bail;
  • not be in a family relationship with the person on bail and have been a victim of an offence committed by the person on bail in the past 10 years;
  • not be in a family relationship with the person on bail and be an alleged victim of the offence of which the person on bail has been charged.

In considering whether a proposed surety is suitable, a bail decision maker may consider the surety’s financial resources; their character and any convictions; and their proximity (in kinship or geography) to the person on bail.

A surety has a right to arrest a person on bail if the surety reasonably believes the person on bail has breached or is likely to breach their bail conditions. They can do this with or without the help of police, but must deliver the person to police as soon as practicable if they carry out the arrest themselves.

A surety ceases to have effect when:

  • bail is revoked or cancelled;
  • the surety dies;
  • the person on bail appears in court as required;
  • court proceedings for the person on bail are finalised.

If a surety applies to a court to end their obligation as a surety for a person on bail, the court can issue a warrant to arrest the person on bail and bring them before the court. If the surety is discharged from their liability, the court can remand in custody the person who was on bail, or grant them fresh bail.

For advice or representation in any legal matter, please contact Armstrong Legal.

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