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Bail Lawyers Perth
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Your right to bail
Persons accused of breaking the law have a qualified right to liberty. Bail is permission granted by the police or the courts for a person to be released into or remain in the community whilst charges against them are still progressing through the criminal justice system. When the Prosecution oppose bail, legal representation at the contested bail hearing is important to maximize the chance of the court granting bail.
If you are arrested for an offence, Police must as soon as practicable make a decision to either charge you or release you without charge. If you are charged with a minor criminal or traffic offence which does not carry any real risk of imprisonment, you are unlikely to be placed on bail.. If you receive a summons instead of bail, attendance at court is mandatory, if you fail to attend the court hearing an arrest warrant will be issued.
If you are charged with a serious offence carrying a risk of imprisonment, Police are required to consider granting you Police bail. If Police refuse to grant you Police bail, you must be brought before a court as soon as is practicable.
If Police ask you to present yourself at a Police Station for questioning in relation to a serious charge, you should arrange an appointment in the early morning. If you are charged and Police bail is refused, you will be brought before a Magistrate to have bail considered the same day and avoid spending the night in the lock-up. However, if you are arrested in the afternoon or evening and Police bail is refused, you will be kept in the lock-up overnight and taken before the court the following morning for bail to be considered.
At your initial court appearance, you are entitled to have bail considered by a court. If you are in custody, you are entitled to have bail considered at each subsequent court appearance until a decision has been made.
At the hearing of a bail application, the court may take into account such information as it thinks fit, whether or not the information would normally be admissible in evidence. You may wish to support the information put on your behalf by providing a statement or affidavit to your solicitor. You may also provide the court with references or affidavits from other persons who support your case for bail. We will advise you on how best to present your case for bail and on the type of supporting evidence that is likely to assist your application. It is important that careful consideration be given to your bail application because if bail is refused and you are facing serious indictable charges, it is likely that you will be waiting 18 – 24 months for a jury trial.
What factors does the court consider in a bail application?
I. the nature and seriousness of the offence or offences (including any other offence or offences for which you are awaiting trial).
II. Your character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position.
III. the history of any previous grants of bail to the accused.
IV. the strength of the evidence against the accused. Bearing in mind that you are presumed innocent until proven guilty and the Prosecution bears the onus of proving the charge(s) to the highest standard of proof known to the law.
V. Whether you may fail to appear in court, including whether you are a flight risk,
VI. The risk that you may commit a further offence and the need to protect the community,
VII. Whether you are likely to endanger the safety or any person or property,
VIII. Whether there is a real risk that you may interfere with witnesses or obstruct the course of justice or otherwise interfere with the conduct of a trial.
IX. Your history of compliance with grants of bail.
X. Whether you need to be held in custody for your own protection,
XI. If the prosecution oppose bail, their grounds for opposing bail,
XII. Whether conditions could be imposed which would sufficiently remove the risks referred to above.
XIII. The likely delay in the matters reaching trial. For example, serious indictable charges will often take 18 – 24 months from the date that you are charged to reach a jury trial. If you are convicted and the sentence imposed is likely to be less than 4 years, you may spend more time in custody awaiting trial than you would have done had you simply pled guilty at the first opportunity.
XIV. Whether the circumstances of the offence or offences are so serious in nature as to make a grant of bail inappropriate.
When can bail be refused?
Bail can be refused if:
1. the accused may fail to appear in court; commit an offence; endanger the safety, welfare, or property of any person; interfere with witnesses or otherwise obstruct the course of justice, or
2. the accused needs to be held in custody for his own protection;
3. the prosecutor has put forward grounds for opposing the grant of bail;
4. there are grounds for believing that the proper conduct of the trial may be prejudiced if the accused is not kept in custody.
What are the usual conditions of bail?
A magistrate or judge (judicial officer) can impose conditions when granting bail. The nature and type of conditions depend on the seriousness of the offence and the circumstance of the accused. Bail will always include a condition that you are to attend the next court date.
Bail conditions may also include:
1. Reside at a specific address
2. Report to your local Police Station, generally 1 or 2 days per week.
3. Surrender your passport
4. Not leave Western Australia or approach any place of international departure such as air or seaports.
5. Night-time curfew
6. Protective conditions prohibiting you from contacting the complainant, witnesses and co-accused;
7. Counselled and attendance at a programme for a behavioural problem;
8. Medical or psychiatric examination
9. Residential treatment for alcohol or drug abuse
10. To submit to drug and/or alcohol testing on request
11. Home detention
12. Wear an approved electronic monitoring device
14. Cash deposit
15. Comply with the reasonable direction of a Community Corrections Officer.
16. not to have unsupervised contact with children aged under 16 years.
17. not to use the internet, other than for the purpose of personal banking, checking court appearances or communicating with your legal representative
What is a Surety and when is a surety required?
If you are charged with serious offences, the court will often require you to provide a surety. A surety is a person who provides the court with a financial guarantee that you will comply with your bail conditions. Providing a significant surety will provide the court with some reassurance that you are likely to comply with your bail conditions and are not a flight risk. A surety amount can be ordered to be split among more than one surety.
A surety is a person who enters into a legally binding and enforceable agreement to forfeit a specific amount of money (the surety amount) if the person they are standing surety for (the accused) fails to appear at Court when required by their bail undertaking. The surety will need to provide proof of their capacity of pay the surety sum if the accused fails to attend court, for example by providing mortgage documents evidencing equity in a home, proof of vehicle ownership, bank statement evidencing bank balance etc.
A person cannot be released on bail until they have signed a bail undertaking and any surety or other pre-release bail conditions are fulfilled.
Who can act as surety?
A person who acts as surety must provide photo identification and proof that they have sufficient assets to guarantee the surety undertaking amount. The person must provide proof of assets such as vehicle registration papers, home loan documents or a bank statement. The surety cannot themselves be facing serious charges or have outstanding fines. If you breach surety bail, the State will seek that the surety forfeit in full the sum of the surety undertaking. It is an offence for you to indemnify or agree to indemnify a surety for any liability which they incur as a result of entering into a surety undertaking.
What does a surety need to consider before agreeing to act as surety?
1. A surety needs to consider whether the accused is likely to attend court. The surety operates as a guarantee given by the surety that the accused will comply with their bail conditions.
2. A surety also needs to consider whether they can afford to forfeit and pay the surety amount if the accused fails to attend court
Bail in domestic violence cases
In cases involving domestic violence, the Court is required to obtain a risk assessment report before granting an accused person bail. This involves an officer from the Department of Community corrections speaking with the complainant about the offending and their attitude to you being granted bail. They will prepare a report for the court, which will reference any history of domestic violence or other violence offending. The report will make a recommendation to the court about whether you should be granted bail having regard to any risk to the complainant. The court will also have regard to protective conditions that are able to be put in place to ensure the safety of the complainant.
Home detention bail
If the court considers that you are at significant risk of committing further offences, interfering with witnesses or pose an unacceptable flight risk, the court may decline to grant regular bail and instead consider granting home detention bail. The court is required to order that a home detention bail report be prepared. You will be required to nominate a bail address. An officer from Community Corrections will then inspect the address and speak with the owner or occupier of the address about you being bailed to the address. They will also speak to you to confirm that you consider the address suitable for the purpose of home detention bail. A report will then be provided to the court indicating whether or not the address is considered suitable for home detention bail. The report will also make recommendations about the types of conditions that should be placed on your home detention bail. Home detention bail is a more stringent form of bail. The strict conditions allay the court’s concerns about reoffending, flight risk or interfering with witnesses, provided that you comply with the strict conditions. Home detention bail usually requires you to wear an electronic GPS bracelet. Other common conditions include maintaining abstinence from drugs and alcohol and providing regular urine samples. The court can make allowance for you to work while you are on home detention bail. The court is more likely to relax the conditions of home detention bail after you have demonstrated ongoing compliance over a month or more.
Can bail conditions be changed?
Yes. Magistrates and judges can vary bail any time an accused person appears on the charges that they are on bail for, except where the charge is murder. Only a judge can vary bail for murder.
An application to vary bail conditions must be made to whichever court currently has carriage of your charges. If you change bail address, it is important that you notify the court of the change of address before moving, so as to avoid breaching your bail. If you wish to vary other conditions such as the days that you report to a Police Station or reporting hours, you will need to provide some evidence of the need for the variation, for example a letter from your employer confirming that reporting to the Police station on weekdays is interfering with your job. If you are seeking a variation to travel interstate or overseas, you will need to provide evidence of the trip itinerary including return journey and evidence of the purpose of travel, for example a evidence of a work conference or a wedding invitation.
The court will not ordinarily vary protective bail conditions which prevent you from having contact with the complainant, witnesses or co-accused. If the complainant is your partner and the complainant wishes to have the protective bail conditions removed, the complainant needs to make their position known to the case officer and the prosecution, the prosecution will then make known to the court that the complainant wishes for the protective condition to be removed. However, under no circumstances should contact the complainant and encourage him or her to remove the protective bail conditions.
It is very important that you comply with your protective bail conditions. If you breach protective bail conditions, the court will consider revoking your bail.
What is Schedule 2 Bail?
If you are charged with a serous offence while on bail or a parole order for another serious offence, there is a strong presumption against a grant of bail. A court considering schedule 2 bail must refuse bail unless satisfied there are exceptional reasons that you should not be kept in custody. There are no specific categories of exceptional reasons however some examples would be where a person have a serious health condition which is likely to deteriorate if they are taken into custody, or where a child or other family member will suffer extreme hardship as a result of the person being taken into custody. If you are able to reserve a bed in a residential rehabilitation facility, this is also capable of being exceptional. A significant delay in your matter reaching trial is unlikely to be a sufficiently exceptional reason in isolation. However, delay in combination with other factors may amount to exceptional reasons.
When can a bail application be reheard?
You may bring an application to have bail reheard in same court which refused bail if you are able to satisfy the court that: (a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or (b) you failed to adequately present the case for bail when it was last presented; or (c) where you are subject to home detention bail, you have complied with home detention bail for a period of 1 month or more.
Can a decision to refuse bail be reviewed by a Superior Court?
An accused who has bail formally refused by the Magistrates Court or District Court has the right to apply to have decision to refuse bail reviewed by a Justice the Supreme Court. The Supreme Court will hear the application afresh and is able to consider additional information which was not before the court that originally refused bail.
What happens when bail conditions are breached, can bail be revoked?
If you are unfit to attend court due to illness, it is crucial that you obtain a medical certificate as early as possible either the day before court or otherwise in the early morning of the day of your court appearance. The certificate must confirm you are medically unfit to attend court on the day of the hearing. The medical certificate should be emailed to the court as soon as practicable with a covering email explaining that you are unable to attend court due to medical reasons and requesting that the matter be adjourned in your absence. It is advisable to telephone the court registry and confirm that they have received the email and medical certificate. The court may then accept that you are absent for reasonable cause and adjourn the matter in your absence. If your matter is called on and no medical certificate has been provided, the court will issue a bench warrant for your arrest
If you miss a court appearance while on a summons or bail, an arrest warrant will be issued. It is advisable that you present yourself to the court where you were supposed to appear in the early morning of the next business day. Given that you have handed yourself in and taken responsibility, the court is likely to renew your bail on the same terms. Police usually do not press charges for Breach of Bail where a person presents themselves to court voluntarily and as soon as practicable after the court hearing date.
If you repeatedly breach your bail, for example by failing to be at home during curfew, failing to report to a Police Station when required, missing court appearances or by breaching protective bail conditions, the prosecution may apply to the court for an order revoking your bail. You may also be charged with Breach of Bail, which carries a maximum fine of $10 000 or imprisonment for a term not exceeding 3 years, or both.
Bail and persons with links to terrorism
There is a presumption against bail for persons having links to terrorism. Even if they are charged with terrorism offences. Persons with links to terrorism must be refused bail unless there are exceptional reasons why they should not be kept in custody.
Bail and murder charges
There is a presumption against bail where a person is charged with murder.
Bail must be refused unless the judicial officer is satisfied that there are exceptional reasons why the accused should not be kept in custody; and bail may properly be granted having regard to factors 1 and 3 or, in the case of a child, factors 2 and 3.
Magistrates cannot release a person on bail for charges of murder. Supreme Court Judges can grant bail to adults. Children can be granted bail by a Children’s Court judge.
If you’re looking for expert criminal lawyers specialising in bail applications in Perth, WA, look no further than Andrews Legal. Contact us today if you or somebody you know needs assistance with a bail application