Bail Presumptions (SA)

In South Australia, decisions about bail are governed by the Bail Act 1985. The process for determining whether a person will be granted bail differs depending on whether the presumption is in favour of bail, or against bail. This page deals with bail presumptions in South Australia.

Police and court bail

Bail may be granted or refused by a police officer or by a court. If the police refuse a person bail, the person must be brought before a court as soon as practicable and given the opportunity to apply for bail.

Most bail applications are heard in the Magistrates Court, but in some situations, bail may be applied for in the higher courts.

What are bail presumptions?

When a bail presumption applies, this determines the starting point for whether or not a person will be granted bail.

If the presumption is against bail, bail will not be granted unless this presumption can be overcome by the defence showing why bail should be granted in this instance.

If the presumption is in favour of bail, bail will be granted unless the prosecution can show sufficient reasons why bail should not be granted in this instance.

Presumption against bail

Under section 10A of the Bail Act 1985, there is a range of situations in South Australia where bail is not to be granted unless special circumstances exist to justify granting bail. This is the case if the applicant is a terror suspect, a serious organized crime suspect, or if they are charged with certain serious offences, including:

  • Murder;
  • Choking, suffocation or strangulation in a domestic context;
  • An offence committed in the course of trying to escape pursuit by the police;
  • A breach of a condition of bail imposed for the protection of a victim;
  • A breach of an intervention order;
  • Contravening a control order or public safety order;
  • An aggravated offence of physical violence committed in breach of an intervention order;
  • Blackmail;
  • A serious firearm offence;
  • A serious drug offence;
  • A serious offence against the person;
  • Assaulting an emergency worker;
  • Causing a bushfire;
  • Certain Commonwealth child sex offences.

If there is a presumption against bail, the defence will need to convince the court that bail ought to be granted because of the existence of special circumstances.

What are special circumstances?

The Bail Act 1985 does not define ‘special circumstances’. However, some of the situations that may be accepted as amounting to special circumstances include:

  • Where the accused’s past breaches of bail were trivial;
  • Where the accused has no prior criminal history;
  • Where the accused is unlikely to be sentenced to imprisonment;
  • Where the accused has sole responsibility for caring for a family member;
  • Where the accused requires treatment for a medical condition.

Presumption in favour of bail

If a person is applying for bail in South Australia and they do not fall within the ambit of section 10A, there is a presumption in favour of the grant of bail. This is contained in section 10 of the Bail Act 1985. Under this provision, the court should grant bail unless there is a good reason to refuse to do so based on:

  • The gravity of the offence;
  • The likelihood that, if released, the person would offend again, abscond, interfere with witnesses or evidence, or breach an intervention order;
  • Any need the applicant has for physical protection;
  • Any need the applicant has for medical care;
  • Any previous occasions the applicant has failed to comply with bail;
  • Any other relevant matter.

The prosecution has the onus of establishing that bail should be refused. The prosecution may oppose bail on the basis that the seriousness of the offence and the applicable penalty makes it likely the accused will abscond; that the accused is likely to commit further offences while on bail or that they are unlikely to attend court when required. These submissions would be based on the accused’s behaviour in the past and their current circumstances.

The defence may be able to allay the court’s concerns about granting bail by proposing conditions that address the bail risks that have been identified. For example, if the accused is considered a flight risk, the defence may propose a condition that they must surrender their passport. If there is a concern about the accused absconding, they may be required to report to the police at particular times.

If a court refuses to grant bail, it must record its reasons for doing so.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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