Bail Presumptions (ACT)
In the ACT, an accused person’s prospects of being granted bail are largely determined by the bail presumption that applies in their situation. The Bail Act 1992 sets out the circumstances under which there is a presumption in favour of bail and the circumstances where there is a presumption against bail. In some situations, there is no presumption. This page deals with bail presumptions in the ACT.
What are bail presumptions?
The bail presumption that applies when a person is applying for bail determines which party has the onus of convincing the court whether to grant or refuse bail.
If a person is applying for bail and the presumption is in favour of bail, the court will grant bail unless the prosecution can demonstrate that bail should not be granted.
If a person is applying for bail and the presumption is against bail, the court will refuse bail unless the defence can demonstrate that bail should be granted.
Presumption for bail
In the ACT, there is a presumption in favour of bail in the following situations.
Under section 8 of the Bail Act 1992, where the accused is:
- charged with an offence that is not punishable by imprisonment
- charged with an offence that is not punishable by more than six months imprisonment
- arrested or apprehended for a breach of the peace
- arrested for failure to comply with a summons or subpoena
However, if the accused has previously failed to comply with bail for a similar offence or if they are in need of physical protection, there is no presumption in favour of bail.
Under section 8A of the Bail Act 1992, there is a presumption in favour of bail where the accused has been arrested for a breach of:
- a deferred sentence obligation
- a treatment order obligation
- an intensive correction order obligation
- a good behaviour obligation
- a parole obligation
- a release on licence obligation
and the sentence was imposed for an offence that is not punishable by more than six months imprisonment.
Under section 9A of the Bail Act 1992, there is presumption in favour of bail where a person is charged with an offence that does not fall into the above categories, and the criteria for granting bail to an adult (set out in section 22) or to a child (set out in section 23) do not justify refusing bail.
Under section 9B of the Crimes Act 1992, there is no bail presumption in the following situations:
- where a person has been convicted of an indictable offence but not yet sentenced
- where a person is charged with a Schedule 1 offence
- where a person is charged with making a threat to kill or cause grievous bodily harm, stalking, contravening a protection order or family violence order, or treason.
Presumption against bail
When the presumption is against bail, a court must not grant bail unless special or exceptional circumstances exist.
This is the case where the accused is charged with:
- a serious drug offence under Chapter 6 of the Criminal Code (section 9C)
- a serious offence alleged to have been committed while a charge of another serious offence was outstanding (section 9D)
A court may refuse to grant bail in these cases even where special or exceptional circumstances do exist if this is justified.
The presumption is also against bail if the accused has been found guilty of an offence and sentenced to imprisonment and an appeal is pending (section 9E).
Special and exceptional circumstances
A person does not have special or exceptional circumstances simply because they have circumstances that relate to ordinary bail criteria such as the need to support children or retain their employment and accommodation.
However, a person who is dealing with an acute medical condition or injury that requires intensive treatment and has reduced mobility meaning that they are unlikely to abscond is likely to be regarded as having special and exceptional circumstances.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.