Applying for Bail in Western Australia
WHAT IS BAIL?
Bail is the mechanism by which the Courts can release an accused person into the community before the matter is concluded either by plea or trial. This conditional release is made upon the accused providing an undertaking to attend Court at the appointed time and observe any conditions the Court may impose.
CAN I BE HELD WITHOUT BAIL?
At the point at which the accused is charged, the initial question of whether bail be granted or refused rests with the ranking custody officer at the Police Station.
However, once charged, the Police are obliged bring you before a Court in order that the question of bail may be considered, and bail granted or refused.
If bail is refused by a Court, the accused shall be held in custody on remand until final determination of the matter; either by trial or plea.
Upon grant of bail, a formal undertaking document is executed by the accused. This is a formal legal document, which obliges the accused to attend Court at the appointed date and time.
Failure to abide the condition to attend Court will result in the Court issuing a Bench Warrant for the arrest of the accused. Unless the person can show good reason for having missed their appearance, it follows that the accused will face an additional charge of Breach of Bail.
CONDITIONS ON BAIL
In addition to the bare obligation to attend Court under the bail undertaking, the Court may impose additional conditions in order to offer some assurance that the accused shall not only attend Court, but also be of good behaviour whilst released into the community. These conditions may include:
· Surety: This is an enforceable pledge provide by a third party that they will forfeit a sum of money should the accused breach bail by failing to attend Court;
· Residential: The Court may specify that the accused reside at a specified address;
· Curfew: In addition to the residential condition, the Court may also impose a curfew upon the accused, specifying that the accused must not leave their bail address within certain times, This is a matter which leaves the accused open to spot checks by Police in the middle of the night;
· Reporting: This imposes an obligation that the accused report to a nearby Police Station as frequently as the Court may deem appropriate;
· Protective: The Court may also impose conditions prohibiting the accused from contacting either directly or indirectly certain people, including Complainants, witnesses, co-accused or specified associates. The Court may also impose conditions prohibiting the accused attending certain locations or being within a specified distance from those locations.
In certain cases, the Court may consider an accused at such significant risk of absconding, that the only way that accused can be released under a strict regime of home detention. Under Home Detention, the accused is required to remain at a specified bail address at all times unless accorded prior consent of Community Corrections.
Upon application for Home Detention, the Court will ordinarily adjourn the matter for a short period (usually 2 weeks) for a Home Detention Assessment. This assessment can only proceed once the accused has a proposed bail address at which to reside, and that residence has a landline telephone installed. The proposed address will then be assessed as to whether it be appropriate; and most importantly, that the persons also residing in that house consent to the accused staying there and are aware of the accused’s specific circumstances.
The reason a landline is necessary is that Community Corrections will require the accused to wear an electronic monitoring device, which will need to interact with the landline to confirm the accused’s presence.
FACTORS FOR CONSIDERATION
An accused person is presumed innocent before the law until proven otherwise, and the Bail Act maintains a presumption in favour of bail unless a significant risk can be demonstrated by the prosecution.
However, in the final analysis, the grant of bail remains a matter at the Court’s discretion. The Court is not necessarily required to consider positive grounds for granting bail but must consider a number of factors in weighing up whether there be grounds for the refusal of bail.
These factors are enshrined in the First Schedule of the Bail Act 1982 (WA); viz:
the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant —
(a) whether, if the accused is not kept in custody, he may — (i) fail to appear in court in accordance with his bail undertaking; or
(ii) commit an offence; or (iii) endanger the safety, welfare, or property of any person; or (iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
(b) whether the accused needs to be held in custody for his own protection (c) whether the prosecutor has put forward grounds for opposing the grant of bail; (d) whether, as regards the period when the accused is on trial,
(e) whether there is any condition which could reasonably be imposed under Part D which would —
(i) sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii) obviate the need referred to in paragraph (b); or (iii) remove the grounds for opposition referred to in paragraph (c)
(f) where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
VARIATION TO BAIL CONDITIONS
An accused may apply for variation of bail conditions either at a regular remand appearance or by specific application to the Court.
Bail conditions are varied sparingly, the Court reasoning that the Magistrate or Judge granting bail has imposed particular conditions for good reason. An accused must have very cogent reasons for seeking variation of bail conditions if the application is to meet success.
THE TRAP OF SCHEDULE 2
Schedule 2 of the Bail Act covers accused who are charged with subsequent offences of certain specified types whilst already on bail.
If an accused is charged with a Schedule 2 offence, the Court has a starting point of a presumption against a grant of bail. In order to persuade the Court to exercise its discretion to grant bail, the accused must show exceptional circumstances in order to enliven the discretion. This is often a difficult proposition.
Schedule 2 offences are:
· Participating in the activities of a criminal organisation
· Instructing commission of offence for benefit of criminal organisation
· Unlawful assault causing death
· Attempt to murder
· Disabling in order to commit indictable offence
· Acts intended to cause grievous bodily harm or to resist or prevent arrest
· Grievous bodily harm
· Suffocation and strangulation
· Persistent family violence
· Wounding and similar acts
· Acts or omissions, with intent to harm, causing bodily harm or danger
· Assault occasioning bodily harm
· Assault with intent to commit or facilitate a crime
· Assault with intent to do grievous bodily harm
· Serious assaults
· Indecent assault
· Aggravated indecent assault
· Sexual penetration without consent
· Aggravated sexual penetration without consent
· Sexual servitude
· Conducting business involving sexual servitude
· Deceptive recruiting for commercial sexual services
· Deprivation of liberty
· Stealing a motor vehicle
· Assault with intent to rob
· Criminal damage, if the property is destroyed or damaged by fire
· Wilfully lighting a fire or causing a fire to be lit under such circumstances as to be likely to injure or damage a person or property
· Association by controlled person with another controlled person
· Association by controlled person with another controlled person on 3 or more occasions within 3-month period
· Offence for controlled person to get funds to, from or for declared criminal organisation
· Other contravention of interim control order or control order
· Recruiting members for declared criminal organisation
· Permitting premises to be habitually used as place of resort by members of declared criminal organisation
· Being knowingly concerned in the management of premises habitually used as place of resort by members of declared criminal organisation
· Offences concerned with prohibited drugs generally
· Offences concerned with prohibited plants generally
· Possessing a quantity of a category 1 item or a category 2 item in circumstances where the life, health or safety of a child under 16 years of age was endangered, or bodily harm (as defined in The Criminal Code section 1(1) and (4)) was caused to such a child, by the acts constituting the offence
· Attempting to commit an offence under section 6(1) Misuse of Drugs Act (“MDA”) or
· Breach of a family violence restraining order
· Breach of a violence restraining order
· Breach of a police order
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If you find yourself in need of an experienced criminal lawyer, Carter Dickens Lawyers can be contacted at any time on 0417550249. Our head of criminal law, Phillip Kelly has over 30 years’ experience and is dedicated to achieving the best possible outcomes for his clients.