Bail is a process where the court releases you into the community, on the condition that you undertake to attend court when required and comply with the conditions of the bail that have been imposed. A bail undertaking is a legally binding document signed by the participant that records the details and conditions of the bail and the undertaking given.
Bail in Western Australia
What is bail?
In WA a grant of bail refers to a person who has been charged with an offence being released from custody and into the community while their matter moves through the justice system.
If bail is refused by a court, then the charged person is remanded in custody until their matter is finalised or until another bail application made to the court is successful.
Any bail application should be treated seriously and seeking legal advice and representation from an experienced criminal lawyer is important.
You've been charged. What happens now?
Following being charged the police may either place the accused on bail or alternatively issue the accused with a summons, or a court hearing notice to attend court. Whether the police issue a summons or have the accused enter into a bail undertaking will depend on the seriousness of the charged offence.
Sometimes the police may decide to refuse bail. If that occurs the accused person must be brought before a court as soon as practicable where they have the opportunity to make an application for bail to the court.
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What does the court consider in a bail application?
The following matters may be considered by the court when deciding on whether to grant bail:
- The nature and seriousness of the charge before the court.
- The accused’s criminal record and in particular whether there have been any breaches of bail in the past.
- The strength of the prosecution case against the accused.
- Any perceived risk that the accused may offend while on bail and whether there are conditions that can be imposed to alleviate that perceived risk.
- Any perceived risk that the accused will fail to appear at court by the bail undertaking and whether there are conditions that can be imposed to alleviate that perceived risk.
- Any perceived risk that the accused will endanger the safety of any person or property and whether there are conditions that can be imposed to alleviate that perceived risk
- Any perceived risk that the accused will interfere with witnesses to the case and whether there are conditions that can be imposed to alleviate that perceived risk.
- Whether the accused need to be held in custody for their own protection.
What is a Bail Undertaking?
An accused person who is granted bail must enter into a bail undertaking. This is a legally binding, written undertaking to comply with all of the conditions attached to the bail undertaking and to attend court on a particular date and time.
What conditions can 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, not only are they likely to be charged with the offence of breaching bail they also stand to forfeit the specified sum of money.
A bail undertaking frequently contains a surety condition. This is a legally binding written promise by a third party to forfeit a specified sum of money if the bailed person does not attend court as required.
A surety must provide photo identification and proof that they have assets to guarantee the surety undertaking amount. The proof of identity might be in the form of a bank statement, home loan documents or vehicle registration papers.
A surety cannot have any outstanding fines or serious charges. It is an offence for an accused person or any other person to offer to indemnify a surety for any expense that they incur as a result of entering into the surety undertaking.
The following conditions may also be attached to a bail undertaking if the circumstances of the accused and the seriousness of the offence required it:
- Live at a certain residential address;
- Attend local police station for reporting requirements (generally 1 or 2 days per week);
- Surrender all passports;
- Prohibited from leaving Western Australia or approaching any place of international departures such as airports or seaports;
- A night-time curfew;
- Protective conditions prohibiting the accused from contacting the complainant, witnesses and co-accused (see below);
- Counselling and attendance at a programme for behavioural issues;
- Medical or psychiatric examination;
- Residential treatment for alcohol or drug abuse;
- Submit to drug and/or alcohol testing on request;
- Home detention (see below);
- Wear an approved electronic monitoring device;
- Comply with the reasonable direction of a Community Corrections Officer;
- Not to have unsupervised contact with children;
- Not to use the internet, other than for personal banking, checking court appearances or communicating with your legal representative.
When does bail stop continuing?
A bail undertaking continues until the matter is finalised. If the accused person’s matters are finalised, and a penalty has been imposed the bail undertaking will cease to continue.
What are protective bail conditions?
Protective bail conditions may be put in place to prohibit the accused from contacting certain people (directly or indirectly) or prohibit the accused person from going within a certain distance of a specified place or area.
Breaching 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.
Bail where the accused has charges relating to domestic violence
Where a person is charged in circumstances of domestic violence, the court will often order a risk assessment report before granting the accused bail.
The report is compiled by the Department of Community and involves speaking with the complainant about the offending and their attitude towards the grant of bail. The report will include any history of domestic violence or other violent offending. The report will make a recommendation to the court about whether bail should be granted.
The court will also have regard to any protective bail conditions that can be put in place to ensure the safety of the complainant.
What is Home Detention Bail?
If the court deems a person to be at a significant risk of committing further offences, interfering with witnesses or posing an unacceptable flight risk, the court may consider granting home detention bail.
Home detention bail is a requirement set by the court to remain at a specified address without leaving unless there is prior consent from a Community Corrections officer. Home detention bail will not be granted unless the proposed residence is first visited by Community Corrections and a home detention bail report is compiled for the court to consider.
Before Community Corrections compiles the home detention report, the officer from Community Corrections will inspect the address where it is proposed that the accused will stay. They will speak to the owner or occupier of the proposed address about the accused person. Community Corrections will also speak to the accused person about whether they are prepared to comply with the strict conditions of home detention bail.
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.
Failing to attend court by the bail undertaking
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 the accused to be charged with the offence of breach of a bail undertaking which carries a potential term of imprisonment.
The accused also runs the risk of their bail being revoked and being remanded in custody while their matter proceeds through the court system.
Can I ask for my bail conditions 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. You will also need evidence supporting your reasons. Some examples where a person needs to vary their bail conditions might include:
- Change of residential address;
- Reporting to a different police station in circumstances where a person has moved addresses;
- Change of days or deletion of requirement to report to the police station because the condition is interfering with the ability to work; and
- Seeking to travel interstate or overseas for work or family commitments.
What if bail is refused? Can I make another application?
It is possible to have a bail application reheard by the same court that initially refused bail where:
- new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
- where the accused failed to adequately present the case for bail when it was last presented.
Where home detention bail is granted, an accused may make another bail application for bail (without the home detention requirement) where they have complied with the home detention bail for 1 month or more.
If an accused has their bail refused by the Magistrates Court or the District Court, they can make an application for bail in the Supreme Court where the application will be heard afresh.
What are the consequences of breaching bail conditions?
Consequences for failing to comply with bail conditions vary depending on the severity of the breach. Sometimes an accused on bail may fail to attend court due to illness.
Where this is the case, it is important to obtain a medical certificate that confirms the accused person is unfit to attend court on the date of the hearing. The certificate should be emailed to the court as soon as practicable with a covering email explaining the absence and a request for an adjournment.
Without a medical certificate being sent to the court, the court will likely issue an arrest warrant.
If an arrest warrant is issued the accused should answer the warrant by attending the court or the nearest police station as soon as possible in the early morning of the next business day. Taking ownership of their mistake at an early stage will significantly increase their chance of having their bail reinstated.
Where a person repeatedly breaches their bail conditions, the prosecution may apply to the court for an order revoking bail. This may also carry a charge of breach of bail, which carries a fine of $10,000 or imprisonment for a term of not exceeding 3 years, or both.
Presumption against granting bail and exceptional reasons for bail to be granted?
There are circumstances where the court must refuse bail unless the accused can demonstrate that there are exceptional reasons why they should not be kept in custody.
These situations include:
- Schedule 2 bail where a person is charged with a serious offence and the offence is alleged to have been committed while the accused was on bail or a parole order for another serious offence;
- The accused is linked to terrorism; or
- If the person is charged with murder.
There is no definitive list of exceptional reasons but some examples include:
- where a person has a serious health condition that would likely deteriorate if they were held in custody;
- where a child or other family member would suffer extreme hardship as a result of the person being taken into custody;
- Reservation of a bed in a residential rehabilitation facility,
- where the penalty for the offences would unlikely result in an immediate term of imprisonment
A significant delay in matters reaching trial is unlikely to be considered a sufficiently exceptional reason why an accused should not be held in custody. However, delay in combination with other factors may amount to exceptional reasons.
Frequently Asked Questions About Bail
This is an application made to the court by you, or a lawyer acting on your behalf, to have bail granted to you. A lawyer making an application for bail on a client’s behalf will require relevant information regarding the client personal circumstances as well supporting documentation to assist in strengthening the application.
Learn more about Preparing A Bail Application.
If you breach your bail undertaking by failing to attend court it will result in a bench warrant being issued for your arrest. It may result in you being charged with breach of a bail undertaking and/or being remanded in custody.
The police may refuse bail and hold you in custody. But after charging you the police must place you before the court as soon as reasonably practicable and you are then entitled to have your bail application heard by the court.
Although you can represent yourself it is advisable to attain legal representation for a bail application. If bail is refused and the applicant wants to apply for bail a second time he/she will either have to present new facts and circumstances to the Magistrate before whom the initial bail application was made or may need to make a fresh bail application before a Judge in the Supreme Court. Attaining legal representation from an experienced criminal lawyer will assist you to get the application right the first time.
Yes, your bail will be refunded in full providing the bail conditions were not breached.
Bail is an agreement to attend court to answer a criminal charge.Often when bail is granted, a number of conditions are applied to the bail undertaking.
A well known condition is requiring the deposit of a sum of money or security (i.e. property)with the Court and agreeing to forfeit that money or security if bail is breached. After the Court matter has been finalised, bail will be refunded.
Bail Refund Procedures
If your bail agreement includes the deposit of money as a condition, it will be refunded via electronic funds transfer (even if you paid in cash).
It is also possible to have the money paid to a third party (eg: a solicitor). In this case, a letter of authority should be included with the application that includes account details of the third party's trust fund account.
Occasionally property is used as a security in bail undertaking. In this case the court will order that the property be deposited and a caveat is taken out on the property.
The caveat is the way the court records its interest in the property used for bail.
At the conclusion of the legal matter, you'll need to fill out a Withdrawl of Caveat form to have this interest removed.
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