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Bail is the right granted to a person charged with an offence to be released from custody, on the condition that they undertake to return to the court at some specified time. That person must also abide by any other conditions the court may impose.

A person granted bail remains under the authority of the court.

In some cases, on top of personal obligations, the person charged might be released to another person or people. This person or people, become security for the charged person by guaranteeing their future court appearance.

Setting bail

The accused is granted bail by either the police or the court.

The main points taken into account by the relevant authority when considering bail are:

  • whether, if the accused person is not in custody, they may:
    • fail to appear in court in keeping with the bail undertaking
    • commit an offence
    • endanger the safety, welfare or property of any person
    • interfere with witnesses or generally obstruct the ‘course of justice’.
  • whether the accused person should be held in custody for their own protection
  • what grounds the prosecuting lawyer puts forward in opposing bail
  • whether there are grounds for believing the trial may be prejudiced if the accused is not kept in custody during the trial period
  • if the accused is charged with an offence alleged to have been committed against a child, the accused be required to reside at a different place to the child
  • whether the alleged circumstances of the offence(s) are of such a serious nature that granting bail would be inappropriate.

Bail is generally not considered for serious offences such as murder.

Bail conditions

Bail conditions may include:

  • reporting to the police
  • residing at a particular location
  • not approaching or contacting victims or witnesses
  • abiding by a curfew to be at a specified address between certain hours
  • not attending certain places or areas
  • abiding by home detention conditions
  • obtaining a surety which helps ensure that the accused appears in court when required.

What if bail conditions are breached?

If bail conditions are breached, it should be reported to police as soon as possible, with information about the bail undertaking and details of the breach committed.

If police are satisfied there has been a breach of bail conditions, the matter can be taken to the court, which can issue a warrant to arrest the accused person for breach of bail conditions and then keep them in custody.

Victim submissions

A victim can make a submission to oppose bail.

Even if a victim misses the initial bail hearing, there is an opportunity to petition the court to vary the conditions. The Investigating Officer is the best person to advise victims on this.

Last updated: 12-Apr-2019

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