When bail is refused

Bail can be granted as soon as practicable after a person is arrested. If bail is refused by police, the person can ask that the decision is reviewed by a senior police officer. If this request is also unsuccessful then an application for bail can be made to a magistrate at the first court appearance. If the magistrate refuses bail, the person can apply for bail again on another day. After two bail applications, a person can apply for a review of the decision of the magistrate to refuse bail, but only if they are able to show a change in circumstances relevant to the granting of bail, or that there is fresh evidence or information relevant to bail that was unavailable at the time the application was refused. A person can also apply to review the decision of the magistrate to the Supreme Court, but they must have first had a review in the Magistrates Court, and they will also be required to show a change in circumstances or fresh evidence.

When can bail be granted?

A person can apply for bail at any time up until the conclusion of their matter, including any appeal. However, if a person has been convicted of an offence, has been sentenced to a term of imprisonment, and is appealing the conviction, the Court will only grant bail in exceptional circumstances.

If a person is charged with committing a minor offence (such as breaching the peace) - and if the potential penalty is relatively low (such as a fine or imprisonment of less than six months) - then there is a presumption that the person is entitled to bail. (Division 2.2 of the Bail Act 1992).

If a person is accused of a serious offence like manslaughter and sexual assault, then there is no presumption that the person is entitled to bail. Where a person has been found guilty of an offence involving violence or the threat of violence within the last 10 years, there is no presumption the person is entitled to bail for certain offences such as threatening to kill, stalking or contravention of protection orders. (Division 2.3 of the Bail Act 1992).

There are certain very serious offences when it is presumed that an accused person will not be granted bail. In these circumstances, a person charged will need to show special or exceptional circumstances to be granted bail.  These offences include murder or serious drug offences. (Division 2.4 of the Bail Act 1992).

Matters taken into account when deciding whether to grant bail

The Court will consider a number of matters in deciding whether to grant bail. These considerations are outlined in s 22(1) of the Bail Act 1992. At a bail hearing the Court will consider things like:

• the nature and seriousness of the alleged offence

• the likelihood of the person being found guilty
• if the person is found guilty, the possible punishment
• the person’s employment record, the strength of their family ties
• whether the person has broken any bail conditions in the past
• the safety of victims and witnesses.

The Court must consider the possibility of any further crimes being committed while on bail, the likelihood that the person will interfere with witnesses, and whether the person will appear in court if bail is granted.

When considering an application for bail, the Court is not bound by rules of evidence that apply in criminal matters. The Court may take into account any information that it considers relevant and reliable, and must give both the person and the prosecutor the opportunity to make submissions or present evidence  as to why bail should be granted or refused. The case for or against bail is based on the civil standard of the balance of probabilities.

Bail conditions

Bail can be granted unconditionally or with conditions attached. Some common conditions may require the person to:

• surrender their passport
• stay away from a person(s) or area
• report regularly to police
• attend a drug treatment program
• lodge a certain amount of money or deeds as surety
• reside at a specific address and

During each Court appearance the issue of bail will arise. If the person has complied with their bail conditions, then it is likely that bail will continue.

If bail is granted or continued, a person is required to attend the bail office at the Court to sign their bail documents. The document lists the person’s bail conditions and sets out their undertaking or agreement to appear at court. The bail office will give a copy of the document to the person.

Changing Bail Conditions

A person can ask the court to change (vary) their bail conditions. A person must give the prosecution 48 hours’ notice of an application to vary their bail conditions. The request to have a bail variation heard can be sent by email to mccriminal@courts.act.gov.au.

Surety

To ensure a person attends Court when required, a surety or security may be required. This may be an amount of money, the deed to a property or objects with a monetary value. The Court may also require a person - such as a close relative – to act as a surety. This provides a further incentive for the person to attend court as the surety may lose any security that they provided to the Court if a bail undertaking is not kept. The surety’s role is to ensure that the person attends Court and complies with their bail conditions.

Failing to appear in Court

If the person who is on bail does not attend Court when required, their bail undertaking is not kept. The Court may issue a warrant for the person’s arrest to bring them to Court. A person may be committing an offence by failing to keep their undertaking to attend court. The person may be arrested, and the Court may revoke their bail. It will also be more difficult to be granted bail in the future and any security or surety may be forfeited.

Bail reporting for Aboriginal and Torres Strait Islander people

ACT Corrective Services are piloting alternative reporting sites for eligible Aboriginal and Torres Strait Islander people who are subject to bail. Culturally safe reporting sites are provided as an alternative to reporting to a police station.

Supervised bail conditions

If a condition requires a person to accept supervision by Corrective Services, information can be found here ACT Corrective Services policies and publications - Open Government Information. Bail-Supervision-and-Support-Policy-2023.pdf

Representation

At the first appearance at Court after a person has been arrested, a Legal Aid lawyer will be available to represent the person and provide advice about applying for bail.

Legal Aid lawyers are also available at Court between 9-12 on sitting days to give advice on criminal matters, including bail variations.