Bail Applications in Western Australia

This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.

If a person is charged with a criminal offence, they are presumed to be innocent until proven guilty. A person charged with offences may be kept in custody on remand until the charges are finalised, or they may be released on bail. This article outlines the laws surrounding bail in Western Australia.

What is bail?

Bail is the authorisation (by a court or by the police) of the conditional release from custody of an accused person charged with a criminal offence.  It gives the accused the right to remain at liberty while waiting for the charge to be finalised.  In Western Australia, the principles and procedures regarding bail are set out in the Bail Act 1982.

The decision about whether to grant bail and the conditions of bail can be made by a police officer after a person has been arrested and given a notice to attend court. If an accused is not granted police bail, the police must bring them before a court as soon as practicable so that they may apply for bail in front of a magistrate.

Will I be granted bail?

In deciding whether to grant bail, the police or magistrate will consider the factors set out in Schedule 1 of the Bail Act 1982. These include whether there is a risk that, if released, the person will:

•  fail to attend court in compliance with the terms of a bail undertaking
•  commit an offence
•  endanger the safety, wellbeing, or property of any person
•  interfere with witnesses, or
•  otherwise obstruct the course of justice.

If these risks exist, the court or police will also consider whether there are conditions that can be attached to a grant of bail that adequately address these risks.

The court must also consider:

• the nature and seriousness of the charges
•  the person’s character and criminal record
•  your personal history, where you reside and your financial position
•  your bail history; and
•  the likelihood of a conviction on your current charge.

Sexual offences against children

In Western Australia, in cases where the accused is an adult charged with a sexual offence against a child, when the court is considering whether the accused, if released, may endanger the safety or welfare of the victim, it must consider:

• the age of the child
• the age of the accused
• 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 victim or a member of their family has concerns that the accused will endanger the child’s safety if released on bail, those concerns and the reasons for them must be conveyed to the bail authority. The bail authority must take the concerns into account in making its decision.

Serious offences committed on bail

If a person is in custody in relation to a serious offence that was allegedly committed while on bail for another serious offence, or while on an early release order for another serious offence, they must be refused bail unless:

• there are exceptional reasons why they should not be kept in custody
• bail may properly be granted taking into account the concerns of victims.

Exceptional circumstances may include the person’s age and health status, the length of the likely delay before they would be brought to trial and the strength of their defence.

Bail conditions

If a court grants bail, it may impose conditions to minimise the risk of the accused endangering the safety of persons, interfering with witnesses, or committing further offences.

Bail conditions may include living at a specified address, abiding by a curfew, attending work or study, reporting to the police regularly, taking part in rehabilitative programs, or entering into a surety agreement.

A breach of a bail condition is an offence.

What can you do if a court refuses bail?

A person who has been refused bail by a magistrate cannot make another bail application before a magistrate unless there are new facts or circumstances, or unless there was a failure by the accused or their lawyer to present the case for bail adequately. However, a person who has been refused bail by a magistrate may apply to the Supreme Court for a reconsideration of the decision.

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