Page updated on: Friday April 23, 2010

Court Bail

If you’ve been remanded because the matter has not been dealt with in your first appearance at court (and most matters aren’t), you will be either remanded at large, (no bail) or bail conditions will be imposed. If bail is not granted you will be kept in custody until your next appearance at court.

Bail may be granted automatically (“as of right”) for some offences. If the offence you are being charged with carries a maximum penalty of less than three years imprisonment, you will be granted bail as of right provided you have a place to live and there is no risk of re-offending or of you failing to appear at court.

However, there are two important exceptions to this rule:

  • If you have been charged with male assault female, assault on a child under 14 or breach of a Protection Order, you are not bailable as of right.
  • If you have previously been convicted of an offence punishable by imprisonment, you are not bailable as of right.

When you are not automatically eligible for bail, you need to apply for it. For most people the Police agree that bail should be granted and will suggest the conditions they believe are needed for that bail.

Conditions that may be imposed include:

  • Must live at a given address;
  • Must be at that address between given hours and present to Police if and when they check (curfew);
  • Must report to the local Police station regularly (often weekly or twice-weekly on a given day);
  • Not to contact the complainant, the victim or any prosecution witnesses;
  • Not to contact or associate with co-offenders;
  • Not to go near a given address (usually the victim’s);
  • Not to consume alcohol;
  • Not to drive;
  • Surrender your passport.

If both you and the Police agree to proposed conditions, bail can be granted by the Registrar. If you do not agree with the proposed conditions or the Police oppose you getting bail, a Judge will have to decide whether you should be granted bail.

There are three things the Judge must take into account when deciding whether to grant bail:

  • Is there a risk you may fail to appear in court on the date you’ve been remanded to?
  • Is there a risk that you may interfere with witnesses or other evidence?
  • Is there a risk that you may offend while on bail?

The court can also consider other matters, such as:

  • The nature of the offence you’ve been charged with, and how serious it is;
  • The strength of the evidence and the probability of conviction;
  • How serious the possible penalty of the offence is and the likely punishment imposed;
  • Your character and past conduct or behaviour (including proven criminal behaviour);
  • Whether you have a history of offending while on bail, or breaching court orders;
  • The likely length of time before the matter comes to hearing or trial;
  • The possibility of prejudice to the defence in the preparation of the defence if you are remanded in custody;
  • Any other special matter that is relevant in the particular circumstances.

In some situations the court must also take into account any views of the victim has about whether you should be granted bail.

The rules about granting bail are complex and are found in the Bail Act 2000. You can view them at Public Access to Legislation Project.

Example:

Peter is a 17-year-old college student. He was caught shoplifting a baseball cap from The Warehouse. He was charged and given Police bail.


Outcome: When he appears in Court he will be remanded to complete diversion. The Court will either remand “at large” (i.e. with no bail conditions) or impose its own bail conditions.

Example:

John broke into a house and stole a TV and DVD player. He has been convicted of burglary several times in the past. One year ago he breached the curfew imposed on him by the court as a condition of bail. He has no fixed address.


Outcome: He is likely to be refused Court bail given he has a record of offending on bail. If he has several convictions for the same offence, it is probable that he will be imprisoned if convicted, which is also a factor when considering bail. Time in custody is included as part of the eventual sentence.

If you breach any condition of bail

If you breach any condition of bail (e.g. don’t turn up for court at the required date) a warrant for arrest will be issued and the bail is likely to be revoked. If you do not appear in court at the date set this may result in you being charged with a new offence separate to the one you have already been charged with.

If you don’t appear in court when you are supposed to, you will need to go the nearest Police station to make a “voluntary appearance” in court or risk being arrested and held in custody. You will be rearrested and brought before the court at the earliest opportunity.