About

The Bail Act 1978 sets out the regime for persons to be released on bail following a charge being laid against them by the police.

In recent years, the number of people arrested then charged and set free on bail has reduced with the advent of the Court Attendance Notice system introduced by the Government and administered by the police. 

Under this system, a person may be issued with a Notice to attend Court in relation to certain criminal offences without the person even being arrested.  If the person fails to attend, the Court will impose a penalty in their absence or can issue a warrant for their arrest.

On other occasions, the person may well have been arrested and taken to a police station.  However, once there, the person can be allowed to leave after they have been issued with a Court Attendance Notice (or ‘CAN').

However, where the offence is a serious one or when the person has a criminal record, they may be formerly charged with the offence.  At that stage, it is then up to the police officer in charge of the process, (usually referred to as the custody officer) to decide whether or not the person should be:

  1. released on bail,
  2. refused bail and taken before a Magistrate as soon as practicable, or
  3. release the person on bail but subject to conditions.

Broadly speaking, the purpose of the Bail Act is twofold:

  1. to ensure the person charged appears in Court to answer that charge,
  2. to ensure the community is protected from further offences being committed.

The refusal or imposition of bail conditions is not meant to be used as some sought of de facto punishment before the person has been found guilty of the offence.

A common reason that a person might have their bail refused is the seriousness of the offence, the fact they have a history of not attending court once granted bail of breaching bail conditions or if they are considered a threat to the community or other nominated individuals.

Do all offences carry an entitlement to bail?

The short answer to this question is ‘no'.

The Act sets makes it clear that certain types of offences are variously:

  1. automatically entitled to bail;
  2. presumed to be able to have bail granted;
  3. presumed to be ‘neutral' as to whether bail should be granted or not, and;
  4. presumed that bail should not be granted unless there are exceptional reasons for doing so.

What is conditional bail?

A common reason that a person might have conditions placed on their release upon bail:

  1. the alleged victim of the offence fears further offences at the hands of the person;
  2. the police or Court is of the view the person is likely to commit further offences and as such presents a risk to the safety of the public;
  3. the person has failed previously to attend Court in answer to bail and it is considered necessary to have a third person (or persons) lodge cash or security (usually property deeds) to ensure the person attends Court in answer to the charge.

The court can impose other conditions for the release of a person on bail such as:

  • lodging money and or security,
  • agreeing to forfeit money and or security,
  • residential conditions,
  • travel restrictions,
  • not to approach or contact a person,
  • to remain out of licensed or other nominated premises,
  • curfew.

Before a person can post bail for the individual charged by either lodging money or entering an agreement to forfeit money, they must be considered by the Court Registrar to be an acceptable person who usually means they do not have any prior criminal record.

Once a person has had bail granted or it has been refused, their bail can be reviewed (under certain circumstances in the Local Court) or in the District or Supreme Courts.

Contact Sharon Ramsden on sramsden@marsdens.net.au or phone (02) 4626 5077.