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When Can Bail Be Granted? (WA)

In Western Australia, every person accused of criminal offences has the right to have bail considered, save for an accused detained under the Dangerous Sexual Offenders Act 2006. Although there is a right to have bail considered, there is generally no presumption in favour of granting bail to an adult. However, where the accused is a juvenile there is a presumption in favour of bail, and in such a case, the young person has a ‘qualified right to bail.’ When an adult is only charged with a ‘simple offence’ there is a presumption in favour of granting bail unless certain exceptions exist.


The power to grant bail can be found in Section 13 of the Bail Act 1982. That section refers to a table in Schedule 1 Pt A of the Act.

Bail can be granted by a police officer or the court. However, under section 16A, an accused alleged to be in a Schedule 2 position (requiring exceptional circumstances to have their bail granted), cannot have their bail granted by a police officer.

Assessment of risk

Once it is apparent that a decision-maker has jurisdiction as outlined above, the consideration of bail that takes place inevitably involves an assessment of risk. The decision-maker has a discretion to release an accused on bail, after considering the factors set out in Clauses 1 and 3 of Part C, Schedule 1 of the Act.

Those factors are:

(a)         whether, if the accused is not kept in custody, he may —

(i)         fail to appear in court in accordance with his bail undertaking; or

(ii)         commit an offence; or

(iii)         endanger the safety, welfare, or property of any person; or

(iv)         interfere with witnesses or otherwise obstruct the course of justice,        whether in relation to himself or any other person;’

(b)         whether the accused needs to be held in custody for his own protection;

(c)         whether the prosecutor has put forward grounds for opposing the grant of bail;

(d)         whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;

(e)         whether there is any condition which could reasonably be imposed under Part D which would —

(i)         sufficiently remove the possibility referred to in paragraphs (a) and (d); or

(ii)         obviate the need referred to in paragraph (b); or

(iii)         remove the grounds for opposition referred to in paragraph (c

When considering the above matters, the court will have regard to:

(a)         the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and

(b)         the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and

(c)         the history of any previous grants of bail to him; and

(d)         the strength of the evidence against him.

Schedule 2: Exceptional Circumstances

There are certain circumstances where an accused must satisfy the court there are exceptional circumstances that justify a grant of bail. Those circumstances are set out in Clause 3A, Pt C of Schedule 1 of the Act.

They include:

  1. Where the accused has allegedly committed an offence found in Schedule 2 of the Act, whilst on bail for an offence found in Schedule 2 of the Act (serious offences); and
  2. Where the accused has allegedly committed an offence found in Schedule 2 of the Act whilst on an early release order (such as parole).

Bail conditions

The decision-maker with respect to bail is able to impose conditions on a grant of bail that ensures the accused complies with their bail undertaking – See Pt D of Schedule 1.

Common conditions include:

  • Not having contact with a particular person;
  • Reporting to a police station on nominated days, and at nominated times;
  • Residing at a particular address;
  • Surrendering any passports;
  • Not leaving WA;
  • Not being within 1km of point of international departure;
  • Not entering a licensed premises.


The decision-maker with respect to bail also has the power to require a surety. Section 35 of the Act provides for the same.

A surety is a person who, as a condition of a grant of bail to the Accused, enters into an undertaking. The undertaking is such that, subject to the Act, the surety will forfeit a specified amount of money if the accused fails to comply with their bail.

The surety will need to be approved by a JP and will need to satisfy them that they have genuinely sufficient funds to cover the amount of the surety if necessary.

Getting It Right The First Time

It is important to ensure all information and supporting documents are before the decision-maker when making the application, has an accused has only one chance to make that application.

A magistrate will not hear a bail application a second time unless it can be established that there has been a change in circumstances since the previous unsuccessful application.

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

Chris Townsend - Senior Associate - Perth

This article was written by Chris Townsend - Senior Associate - Perth

Chris Townsend is a criminal lawyer who regularly represents clients in the Magistrates, District, Supreme and Court of Appeal of Western Australia. Chris holds a Bachelor of Arts (Psychology), Juris Doctor, Graduate Diploma in Legal Practice, and Master of Laws specialising in Criminal Practice.  He was admitted to practice in Western Australia in 2013, and thereafter as a solicitor to...

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