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Suzie Cameron

Magistrate

Simon Zebrowski

Magistrate

Types of bail and bail condition

Last updated

1 July 2020

There are three different types of bail. These are:

  1. release the accused person on their own undertaking without any other condition; or
  2. release the accused person on their own undertaking with conditions about the conduct of the accused; or
  3. release the accused person with a surety of stated value or a deposit of stated value, with or without conditions about the conduct of the accused.

Own undertaking

Most accused people are bailed ‘on their own undertaking’. This means the only person responsible for the accused attending court when required to do so is the accused themselves.

Sometimes the accused has to deposit a sum of money with the police or the courts before being released. An accused is entitled to recover the deposit once the matter against them is determined.

Surety

Sometimes another person (called a ‘surety’) is required to deposit or ‘put up’ a security (usually a sum of money or a title to a property) to guarantee that an accused person will appear at the date and place specified in the bail bond. If the accused does not turn up at court to answer their bail or otherwise fails to comply with the undertaking they entered, the security put up is liable to be forfeited to the state (s 5(3) Bail Act). For more information about sureties, see ‘Sureties and deposits’, below.

Bail conditions

A bail decision-maker considering the release of an accused on bail must impose a condition that the accused will surrender into custody at a time and place for the hearing.

Conditions about the conduct of the accused can be set at the discretion of the bail decision-maker.

Section 5AAA(4) of the Bail Act contains a list of common bail conditions, but the bail decision-maker is not limited to these conditions and can impose conditions that do not appear in the list.

A bail decision-maker must impose any condition(s) that reduce the likelihood of an accused:

  • endangering the safety and welfare of any person;
  • committing further offences;
  • interfering with a witness;
  • obstructing the course of justice;
  • 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.

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