Criminal Law
Australian Capital Territory
Bail
Applying for Bail in the Australian Capital Territory
Applying for Bail in the Australian Capital Territory
When a person in the Australian Capital Territory is charged with an offence, they can either be held in custody until their court case is heard, or be released on bail to return to court at a later date to answer the charge. This article deals with bail in the ACT.
Legislation regarding bail in the ACT
The laws regarding when bail is to be granted and the procedures for applying for bail in the ACT are contained in the Bail Act 1992. If the charges are Commonwealth offences, there are additional criteria that must be considered. These criteria are set out in the Commonwealth Crimes Act 1914.
Bail for ACT offences
Bail can be granted to a person by the police after arrest. If the police do not grant bail, the person must be brought before a court within 48 hours.
If a magistrate refuses bail, an appeal can be made to Supreme Court.
If the person is granted bail, they will be released from custody on the condition that they will appear in court at a later date. Bail can be granted with or without further conditions attached. Further conditions may be in imposed in respect to where the person is to live, what they must do and how they must behave.
A surety may also be required before a person is granted bail. This may take the form of deposit of an amount of money or an undertaking to pay an amount of money if the defendant does not appear in court on the date stipulated. In the ACT there is a presumption that bail will be granted for minor offences, which includes those offences that do not attract a term of imprisonment, and those with a maximum penalty of less than six months jail. For the more serious offences (eg. murder, rape, manslaughter) bail will be refused unless the defendant can show special or exceptional circumstances justifying why bail should be granted.
Police bail
Only police who are authorised (that is, police who are of or above a certain ranking) have the power to grant bail. Police have no power to grant bail if a decision has been already been made by a court, or if the offence is a domestic violence offence or a murder.
Before deciding whether to grant bail, the police officer must give the person (or their lawyer) and the police involved in the investigation of the charge an opportunity to say what conditions should be imposed on the bail. If the authorised officer refuses to grant bail, then a request can be made for the decision to be reviewed by a senior authorised police officer.
There are certain criteria that are set out in the Bail Act 1992 which must be considered before deciding whether to grant bail. These include how likely it is that the person will come to court, and whether it is possible that the defendant will commit any offences (including interfering with a victim or a witness) in the meantime. Matters such as the seriousness of the offence, how likely it is that the defendant will be found guilty and the punishment they are likely to receive, their work and family obligations, and whether the defendant has broken any bail conditions that have been set in the past, are all relevant considerations.
Court bail
When considering whether to grant bail, a court must also consider the criteria set out in the Bail Act 1992. The court may take into account any piece of information that it considers relevant and reliable and must allow both the accused (or their lawyer) as well as the police an opportunity to give evidence as to why bail should be granted or refused.
A person can apply for bail as many times as they wish up until the conclusion their matter, including any appeal following conviction. A court will consider a third or subsequent application for bail only if it is satisfied that there has been a change in circumstances since the last bail application, or that there is fresh evidence or information relevant to the granting of bail.
Bail in Commonwealth matters
If the offence charged is under a Commonwealth law, before granting bail they must consider any likely effect of a grant of bail on any witnesses to, or victims of, the offences. There are also some rules that must be considered regarding both customary law and cultural practice. For some offences, bail will not to be granted unless the person that considers the application believes that the circumstances of the case are so exceptional that it should be granted. These offences include big drug importation or exportation matters, certain treason and terrorism offences, and offences where a death has been or could have been caused by the person’s reckless or deliberate actions.
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