Bail and Serious Charges (WA)

During 2022, Western Australia made significant changes to its bail laws. This article outlines the changes and what is now required to get bail on serious charges in Western Australia.

Sexual offences against children

In 2022, the WA government introduced additional factors that must be taken into account in a bail application in relation to a sexual offence where the accused is an adult, and the alleged victim is a child.

In all bail applications, the court must consider whether there is a risk that if the accused is released, they will:

• fail to appear at court
• commit an offence
• endanger a person’s safety, wellbeing or property
• interfere with witnesses
• Obstruct the course of justice.

In bail applications in relation to sexual offences against children, when the court considers whether the accused will endanger the victim, it must take into account:

• the child’s age
• the accused’s age
• whether the child is family of the accused
• the importance of safety, continuity, security and stability in the child’s living arrangements and family and community relationships
• the child’s physical and emotional wellbeing.

If the child or their family has concerns that the accused may endanger the child’s safety if released and express these concerns to the prosecutor, the court must be informed of this and of the reasons for the concerns. The court must take this into account when making its decision.

Conduct of accused

The changes also provide detailed guidance to bail decision-makers as to what they should consider when deciding whether to grant bail. These matters include:

• the strength of the case
• the nature of the alleged offending
• the accused’s conduct towards alleged victims and their families
• the accused’s character, background and circumstances
•  the accused’s bail history.

Release without bail

Under section 6A of the Bail Act 1983, a person can be charged with an offence and released without bail if the offence is not a serious offence.

Prior to the 2022 changes, a serious offence was defined as an offence carrying a penalty of five years imprisonment or more. This definition did not capture some child sex offences, such as indecent dealings with a child between the ages of 13 and 16.

Since the changes, the definition of ‘serious offence’ contained in Schedule 1 of the Act now applies to this provision, meaning that there is now a longer list of offences for which an accused person may not be released without bail. A person charged with these offences will not be released only if they are granted bail.

Deferral of bail decision

Under section 9 of the Bail Act 1983, when a person applies for bail, the decision-maker may defer the decision for up to 30 days. This allows the court or police time to gather information and consider what conditions could be imposed to minimize the risk to the alleged victim.

In cases where police are considering bail, they may defer making a decision about releasing a person until they have all the information they need to assess the accused person’s circumstances and any concerns the alleged victim has about their release.

This provision does not affect a person’s right to be brought before a court to apply for bail as soon as practicable.

Serious offence

Under the WA Bail Act, a person who is charged with a serious offence while on bail for another serious offence will not be released on bail unless there are exceptional reasons.

Under the 2022 amendments, the list of offences classified as ‘serious offences’ has been expanded. A person charged with any of these offences listed in Schedule 2 will now receive bail only if they satisfy the court that there are exceptional reasons why they should not be kept in custody.

Reasons for the changes

The McGowan government stated that the Bail Amendment Bill 2022 was passed in recognition of the traumatic effects of releasing an alleged sex offender on bail. The Bill sought to ensure that the risks of releasing an alleged offender were considered while preserving the presumption of innocence.  

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