Bail in Perth

When a person is charged with criminal offences in Perth or elsewhere in Western Australia, they are presumed innocent until proven otherwise. Therefore, they have the qualified right to be free until a court determines whether they are guilty. After charges have been laid, a person may be kept in custody on remand or granted bail. Whether bail is granted or not will depend on the nature of the charges against them, their circumstances and their criminal history and bail history.

What Is Bail?

Bail is the conditional release of someone who has been charged with criminal offences before the matter is finalised. The person must return to court when required to do so and abide by other conditions, including not committing any further offences.

Bail gives an accused the right to remain in the community, rather than being held custody while waiting for the charges to be finalised. In Western Australia, bail is governed by the Bail Act 1982.

Police bail

The decision whether or not to grant bail can be made by the police after a person has been arrested and charged. This will usually occur if the charges are minor and/or the person does not have a criminal history. If the police do not grant a person bail, they must bring the person to court as soon as practicable so that they can apply for bail.

Magistrates Court bail

If an adult is not granted bail by the police, they will have the opportunity to apply for bail in the Magistrates Court.

If a young person under 18 is not granted bail by the police, they will have the opportunity to apply for bail in the Children’s Court.

When a person applies for bail, the defence tell the court why they should be granted bail and the prosecution indicates whether it opposes bail. If the prosecution opposes bail, it then makes the case against the grant of bail. 

Supreme Court bail 

In some situations, where a person has been refused bail by the Magistrates Court or Children’s Court, they may decide to apply to the Supreme Court to review that decision. 

A bail application must be made in the Supreme Court where an adult is facing a murder charge as under section 15 of the Bail Act, only a judge of the Supreme Court has the power to grant bail to an adult in a murder matter. If a child is facing a murder charge, bail may be granted by a judge of the Children’s Court.

Applying For Bail In Court

When a person makes an application for bail, the court must consider the factors set out in Schedule 1, Part C of the Bail Act 1982. These factors include whether, if the person is not remanded, they are likely to:

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

In considering whether any of the above is likely to occur the court must also consider:

  • the seriousness and nature of the alleged offence/s;
  • their defendant’s character and any previous convictions;
  • their personal history, where they live and their financial position;
  • their bail history; and
  • the likelihood of the person being found guilty.

Exceptional circumstances and bail in Perth

Under the Bail Act 1982, when a person applies for bail in certain situations, the court must only grant bail if the defence can show there are exceptional circumstances. This is the case where the defendant is alleged to have committed a serious offence while on bail or while on an early release order for another serious offence. It also applies where a person is facing a murder charge.

The court has wide discretion when deciding what amounts to exceptional circumstances, but these may include the applicant’s age and health, how long the matter is likely to take to be finalised and the strength of any defence they may have. 

Effectively, this means that where the applicant has been charged with murder or with a very serious offence whilst on bail for another serious offence, there is a presumption against bail.

Bail Conditions

Bail may be granted with specific conditions depending on the situation. Schedule 1, Part D of the Bail Act 1982 lists the conditions that may be imposed when granting a person bail. These include a requirement that the defendant enter into a personal undertaking to reside at a particular address and/or report to police regularly.

The court can also impose protective bail conditions to ensure that the person does not endanger the safety of any person or property or interfere with witnesses or otherwise obstruct the course of justice while on bail. A common protective bail condition is not to contact a particular person (such as the alleged victim or co-offender) or from a particular place. Breaching a protective bail condition is a criminal offence in WA.

What If The Court Refuses Bail in Perth?

If the Magistrates Court or Children’s Court refuses to grant a person bail, they cannot make a further application before a magistrate unless any of the following situations exists:

  • new facts or circumstances have arisen;
  • there has been a change in circumstances; or
  • there has been a failure to adequately present a case for bail. 

A person who has been refused bail by a magistrate may apply for reconsideration of the magistrate’s decision by a judge in the Supreme Court.

If you require legal advice or representation in relation to bail in Perth or in any other legal matter, please contact Go To Court Lawyers.

Author

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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