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Bail Applications in Western Australia

If a person is charged with a criminal offence, they are presumed to be innocent until it is proven that they are guilty. In Western Australia, there are some situations where a person might be kept in custody (on remand) until they are required to appear in court and answer to the charges. In other situations, the person will be granted bail. Bail is the conditional release of a person whose criminal matter has not been finalised. This article outlines the laws surrounding bail in Western Australia.

What is bail?

Bail is the authorisation of the release from custody of an accused person charged with a criminal offence.  It gives an accused the right to remain at liberty, rather than in custody in a prison or detention centre while waiting for the charge to be finalised in court.  In Western Australia, the principles and procedures regarding bail are governed by the Bail Act 1982.

The decision for or against bail can be made by a police officer after a person has been arrested and given the notice to attend court. This is known as police bail. If the accused is not granted police bail, the police must bring him or her before a court as soon as practicable for a magistrate to hear the matter or decide whether to grant bail until a further appearance in court. This is called court bail.

Getting police bail

If you are in custody after being charged with an offence, in most circumstances you will be entitled to have a bail determination made by the police as soon as practicable. In making a bail decision, a police officer will normally take into account the likelihood of you appearing at your next court hearing and the risk of you interfering with witnesses, absconding or destroying evidence, or committing further offences.

If you are granted police bail you may have to sign a Bail Undertaking which places restrictions on what you may do whilst on bail.  If bail is refused by police then under the Bail Act 1982, you must be taken before a court as soon as reasonably practicable.

At the court appearance, either you or your lawyer can make a bail application.

Getting court bail

If you make an application for bail, the court can either dispense with bail, grant bail (with or without the imposition of bail conditions), or refuse bail. In considering a bail application the court must consider a range of factors as set out in Schedule 1, Part C of the Bail Act 1982. These factors include making a determination as to whether, if you are not kept in custody, you 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.

In considering whether either of these will occur the court must also consider under Schedule 1, Part C, Clause 3 of the Bail Act 1982:

  •  how serious is the offence you have been charged with, and the nature of that offence
  •  your character and previous convictions
  •  your personal history, where you reside and your financial position
  •  your bail history; and
  •  the likelihood of a conviction on your current charge.

Offending whilst on bail

The Bail Act 1982 states that in cases where the accused has committed a serious offence (listed at Schedule 2 to the Act) when released on bail (or on an early release order) for another serious offence, bail will be refused unless there are exceptional reasons why the accused should not be kept in custody. The court has wide discretion as to what constitutes exceptional circumstances, but these can include your age and health status, the length of the likely delay before you would be brought to trial and the strength of any defence you may have. This same process applies if you have been charged with murder.

Bail may be granted subject to specific conditions. Schedule 1, Part D of the Bail Act 1982 specifies the conditions that may be imposed when granting bail. You may be required to enter into a personal undertaking, a surety undertaking, reside at a fixed address and/or report to police.

The Court also has the option of imposing protective bail conditions to ensure that you do not endanger the safety of any person or any property, interfere with witnesses or otherwise obstruct the course of justice. A common protective bail condition is that you stay away from a particular person or place. A breach of a protective bail condition is an offence.

What can you do if the court refuses bail?

If a court denies your request for bail, then you cannot make a further application before a magistrate unless there are new facts or circumstances, a change in circumstances or a past failure to present a case for bail adequately. You may, however, apply for reconsideration of the decision before a judge (usually in the Supreme Court).

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


Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. 

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