The Law Handbook 2024

Chapter 3.6: How bail works 197 • failing to attend court while on bail (s 5AAA(1)). Conduct conditions listed in section 5AAA(4) of the Bail Act include that the accused: • report to a police station; • live at a particular address; • adhere to a curfew; • surrender his or her passport; • not attend certain places or areas; • comply with conditions of an intervention order; • attend bail support services; • not contact specified people, or a class of people (e.g. witnesses or co-accused); • not drive a motor vehicle; • not use drugs or alcohol. Each condition must be reasonable and no more onerous than is required to achieve its purpose. Bail conditions remain binding on an accused until the bail is varied or revoked or the charges for which the person is on bail are finally determined (s 5AAA(6)). This means that an accused is still required to comply with bail conditions even in circumstances where they have failed to answer their bail and a court has issued a warrant for their apprehension and made an order forfeiting their undertaking of bail. It is a criminal offence for an accused person on bail to breach any condition attached to their bail without a reasonable excuse (s 30A(1)). This does not apply to a condition requiring the accused to attend and participate in bail support services. It also does not apply to children. Granting, extending, varying and revoking bail Bail decision-makers: The courts A person can be released on bail by a judge of the County Court or the Supreme Court, or by a magistrate of the Magistrates’ Court. The police usually take a detained person before a magistrate. Magistrates’ Court Ordinarily, an accused person’s first opportunity to apply for bail before a court occurs at the first remand and filing hearing (when charges are filed in the Magistrates’ Court in respect of indictable offences that cannot be heard in the summary jurisdiction); or at the first remand hearing (when charges are proceeding in the summary jurisdiction). In both these situations, the magistrate will ask whether the accused person wishes to make an application for bail and if so, will proceed to hear and determine a bail application, which may be opposed or unopposed by the prosecution. If bail is granted, the accused will enter a bail undertaking and will be released. If bail is refused, the accused will be remanded in custody until the next court hearing. After the first remand hearing, a person in custody who wishes to apply for bail in the Magistrates’ Court must file an application with the court and serve a copy of the application on the prosecution and the informant (i.e. the police officer who laid the charge). If the bail application is listed to be heard before the hearing of the charges, a jail order must be obtained from the Magistrates’ Court and forwarded to the Office of Corrections (the Prisoner Movements department) to ensure that the applicant is brought before the court for the hearing of their bail application. In the Magistrates’ Court, the evidence placed before the court is usually given orally (i.e. viva voce ), although it is common for letters of employment, drug/rehabilitation reports and references to be tendered on behalf of an applicant. Any document that is to be relied on should be given to the prosecution and the informant before the hearing. An accused who has been committed to stand trial is also entitled to apply for bail at the conclusion of the committal hearing – this is so regardless of whether bail has been previously refused. Once committed to stand trial, any future bail applications must be made to the higher court. Where a person is charged with murder, the Magistrates’ Court can only grant bail at the time of committing an accused for trial in the Supreme Court. The Magistrates’ Court cannot grant bail where a person is charged with treason. County and Supreme Courts Once an accused person’s case is listed in the County Court or the Supreme Court, and the accused person wishes to apply for bail, an application and a supporting affidavit must be filed with the court and served on the prosecution and the informant. The affidavit should provide sufficient detail about the applicant’s circumstances and the reasons why