Applying For Bail in the Children’s Court (ACT)

When a person is charged with offences in the ACT, they may be released on bail or remanded in custody. The process of applying for bail is governed by the Bail Act 1992 and is largely the same for adults and children; however, when a child applies for bail there are additional considerations that must be taken into account. This page deals with applying for bail in the Children’s Court in the ACT.

Police bail and court bail

A young person may be granted bail by the police or by a court. If the police do not grant bail to a young person, the young person must be brought to a court as soon as possible and given the opportunity to apply for bail.

Bail presumptions

When a person applies for bail in the ACT, there may be a presumption in favour of bail, a presumption against bail, or no presumption depending on the offences they are charged with and their criminal history.

If a person is applying for bail in a matter where the presumption is against bail, they bear the burden of demonstrating to the court why bail should be granted. In a matter where the presumption is in favour of bail, the court will grant bail unless the prosecution can demonstrate that bail should not be granted.

These bail presumptions apply to children as well as to adults. However, when deciding whether to grant bail to a child, different criteria are considered. 

Criteria for granting bail to a child

Under section 23 of the Bail Act, a court deciding a bail application by a child must consider the following:

• The likelihood the child will appear in court to finalise the charge;
• The likelihood that the child will commit an offence, harass or endanger a person, or interfere with witnesses or the course of justice;
• The interests of the child.

In assessing the above, the court may take into account the nature of the charges, the child’s character, background and community ties, the strength of the case, any previous grants of bail and the impact or refusal of bail on their family.

If the child’s release poses a risk that cannot be mitigated through the imposition of bail conditions, bail must be refused.

The court must also take into account the principles set out in section 9 of the Children and Young People Act 2008. These are:

• that the child’s racial, religious, cultural and individual identity should be preserved;
• that the child’ education or employment should be continued
• that the child’s age, maturity, developmental capacity and other characteristics should be considered;
• that delays should be avoided.

Bail conditions

When a person is granted bail, they are released on condition that they will come to court when required to do so and will not commit an offence. Courts can impose additional bail conditions to address any specific concerns they have about releasing a person.

When bail is granted to a child in the ACT, the court may impose the following types of bail conditions:

• Conditions about the child’s conduct – such as a condition that they do not consume alcohol, do not associate with specified persons, or that they must participate in a specified program;
• Conditions requiring a surety to be paid to the court and forfeited if bail is breached;
• A condition that the child is to be supervised by the Director-General.

Breach of bail

There are a number of ways a person (including a child) can breach their bail in the ACT.

Under section 49 of the Bail Act, if a person fails to appear at court to answer their bail, they commit an offence that is punishable by up to two years imprisonment or a fine of up to 200 penalty units, or both. It is a defence to this charge if the person has a reasonable excuse for failing to appear at court.

Under section 56AD of the Bail Act, a person breaches their bail if they fail to comply with a condition of their bail. A person may be arrested and brought before a court for breach of bail. The court may release the person, grant the person bail on appropriate conditions, or remanded them in custody.

Breaches of bail are also recorded on a person’s antecedents and may affect their chances of being granted bail in the future.

Remand

When a child is remanded in custody in the ACT, they are held in a youth detention centre. Children must be kept separate from adults while in custody, including while being held temporarily in the cells at a police station or at a court.

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