What is a Bail Undertaking?

A person who is charged with an offence is often required to enter into a bail undertaking. An accused person who enters into a bail undertaking provides a legally binding, written promise to attend at court on a particular date and time. Failure to attend court to answer a bail undertaking ordinarily results in the court issuing a bench warrant for the accused person’s arrest. It is also likely for such person to be charged with the offence of breach of a bail undertaking which carries a potential term of imprisonment. A bail undertaking is only necessary if the matter is ongoing. If the accused person’s matters have been disposed of or finalised, and the court has imposed a penalty the bail undertaking will cease to continue.

What conditions may be attached to a Bail Undertaking?

Often the court attaches a specific conditional monetary amount to a bail undertaking so that if the bailed person doesn’t attend court as required, he or she stands to forfeit that specified sum of money.

The bail undertaking may also have a surety condition attached. This is a legally binding written promise by a third party to forfeit a specified sum of money in the event that the bailed person does not attend court as required.

There can also be other conditions attached to a bail undertaking such as reporting to a police station, curfew, or the requirement to reside at a particular address.

Protective bail conditions may also attach to a bail undertaking to prohibit the accused person from contacting certain people (directly or indirectly), or prohibit the accused person from going within a certain distance of a specified place. A breach of a protective bail condition is a serious offence and the consequences often result in bail being revoked altogether and for the accused person to be remanded in custody to await the finalisation of their matter.

What is Home detention bail?

Home detention bail is a requirement set by the court to remain at a specified residence without leaving unless there is the prior consent of a community corrections officer.  Home detention bail will not be granted unless the proposed residence is first visited by community corrections to ensure the appropriateness of the abode for home detention bail to be taken up.

Community corrections ordinarily ensure that there is a home phone line at the residence, and that anyone else who resides at the place is properly informed of the circumstances relating to the bailed person. Home detention bail is overseen by community corrections and ordinarily involves electronic monitoring of the bailed person.

What does the court consider in a bail application

The Court has a discretion whether to grant bail, which involves a weighing or balancing process, after considering and answering the relevant questions contained in Schedule 1, Part C, clause 1 of the Bail Act 1982 (WA). The Court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions in Schedule 1, Part C, clause 1 of the Bail Act, which direct attention to whether there are proper grounds to refuse bail.

  1. Schedule 1, Part C, clause 1 of the Act relevantly provides:

…the grant or refusal of bail to an accused…who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer…in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant:

  • whether, if the accused is not kept in custody, he may –
  • fail to appear in court in accordance with his bail undertaking; or
  • commit an offence; or
  • endanger the safety, welfare, or property of any person; or
  • interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
  • whether the accused needs to be held in custody for his own protection;
  • whether the prosecutor has put forward grounds for opposing the grant of bail;
  • 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;
  • whether there is any condition which could reasonably be imposed under Part D which would –
  • sufficiently remove the possibility referred to in paragraphs (a) and (d); or
  • obviate the need referred to in paragraph (b); or
  • remove the grounds for opposition referred to in paragraph (c);
  • whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

Can I ask for my conditions of bail to be changed?

If you are on bail you can apply to the court for a variation of your bail conditions. This can be done on your next due court date or you can early list your charges before the court to make the application.

You need to have a proper and valid reason why you want a particular condition of your bail to be varied or deleted. For example; if you are changing your current Fremantle address to an address in Perth you may ask for your reporting conditions to be varied to allow you to report to a different police station.