It is easy to mix up legal terms, especially when they sound similar or are used during a stressful time like an arrest. Understanding what bail actually is, and how it works in Western Australia, can make a difficult situation a little clearer and help you understand your options.
In Western Australia, the law in respect of bail is governed by the Bail Act 1982 as well as appeal cases decided in the Supreme Court and Court of Appeal.
The circumstances involved in an arrest are deeply distressing. Knowing what bail means, how it is decided, and what conditions might apply helps you avoid confusion and stay informed about the process.
What is Bail?
After an arrest, the defendant will appear before a judge, who will decide the terms of the defendant’s bail order. In simple terms, bail is the decision about whether you remain in custody or are released in the community while you wait for your court hearing, and if so, on what conditions.
In some cases, a defendant will need to show cause. Showing cause means explaining to the court why keeping you in jail is unjustified.
You will typically need to show cause if you are involved in a serious offence such as:
- Violent offences
- Sexual offences
- Offences involving firearms or other weapons
You must also show cause if you are charged with a crime whilst already out on bail for a previous offence. In practice, getting bail is often difficult if you are required to show cause.
A judge can also refuse bail if they decide that a defendant is a threat to the public or a significant flight risk. If bail is denied, the defendant will stay in police custody until their court hearing.
What is a Personal Undertaking?
When an accused person is granted bail, they must enter into a bail undertaking.
A bail undertaking is a legally binding written promise to:
- Fulfil all conditions attached to the bail; and
- Attend court on the scheduled date and time.
If the court agrees to bail, several different conditions can be attached to the undertaking. These are designed to manage risk, protect other people, and make sure the accused returns to court.
Common Bail Conditions in Western Australia
Bail in WA is not just about whether you are released or kept in custody. The court can also impose specific bail conditions that you must follow while you are on bail. Your article explains a number of these conditions, which are outlined below.
Cash Bail Conditions
Cash bail conditions are familiar to many, as they are common in legal systems worldwide.
- The court sets a specific amount of money that must be paid to ensure the defendant will not flee and will attend future court dates.
- If the defendant has the cash necessary to satisfy the judge’s order, they pay this amount to the court.
- The money can be returned after all the conditions of the bail order are met and the case is resolved.
Technically, paying cash to meet the terms of a bail order is known as a secured bond or a cash bond. However, the process of paying the court money to secure your release is often simply referred to as “bail”.
Surety Condition
A surety is a person who makes a legal agreement with the State and agrees to surrender a set amount of money if the accused person fails to appear in court as required.
Key points about surety conditions:
- The surety condition is the monetary amount that the surety agrees to pay if the defendant does not appear at the next scheduled court date.
- The required amount does not need to be paid before the accused is released. However, if the accused does not attend court as required, the surety must pay the surety condition.
- The surety must show the court that they possess cash or assets equal to the surety condition. For example, if the surety amount is $20,000, the surety must bring documentation proving that they have assets that equal $20,000.
- Typically, surety conditions are greater for more severe offences.
Anyone considering taking on this role must be aware of the serious financial consequences they will face if the defendant fails to appear in court.
Protective Bail Conditions
Courts will apply protective bail conditions if the accused threatens the well-being of victims, complainants, or witnesses.
Protective bail may be imposed if the accused is likely to:
- Interfere with witness testimony; or
- Intimidate victims, complainants, or witnesses.
A protective bail condition:
- Names the person or people the accused must not contact; and/or
- Identifies places the accused must stay away from.
For example, a defendant may be required to have no contact with an ex-girlfriend and must stay away from her residence and place of employment.
A vital point regarding protective bail is that it is a criminal offence to breach these conditions.
Residential Bail Conditions
The court may attach a residential bail condition to the terms of bail.
These conditions may require the accused to:
- Stay at their own residence; or
- Stay at another person’s residence, such as a partner, sibling, or parent.
If the accused is ordered to live at another person’s address, that person must give consent.
Residential bail conditions are different to home detention:
- Residential bail requires the accused to reside at a particular address.
- Home detention requires the accused to reside at, and remain within, a particular residential address 24/7.
Curfew Bail Conditions
The court may find it appropriate to impose a curfew bail condition to reduce the opportunity for further offences.
Curfew conditions are:
- Most commonly seen for juveniles; or
- Imposed when the offence occurred in a public place at night.
A curfew condition will usually state the hours during which the accused must be at the specified address. Often a curfew condition is given together with a stipulation that police may make unannounced visits to the residence to check compliance.
Schedule 2 Bail Conditions
Schedule 2 bail conditions are brought into consideration when:
- Someone accused of a serious offence (as defined by the Bail Act 1982) is already out on bail; and
- That person then commits another serious offence.
In this situation, the accused is known as a Schedule 2 Offender.
A complete list of serious offences, as defined by the Bail Act 1982, can be found in:
- The Criminal Code section 279–section 444
- The Criminal Organisations Control Act 2012, sections 99–107
- The Misuse of Drugs Act 1981, sections 6, 7, 14, 33(1), 33(2)
- The Restraining Orders Act 1997, sections 61 and 86
- The Road Traffic Act 1974, section 59
- The Bush Fires Act 1954, section 32
A Schedule 2 Offender must show “exceptional circumstances” to be released on bail.
The Bail Act does not define exceptional circumstances. However, the defendant’s legal representatives must show compelling reasons to prove the existence of such circumstances if bail is to be granted.
Need Guidance About Bail?
Dealing with an arrest and bail process can be stressful and confusing, and the circumstances are different for every person.
If you need help understanding your position, or wish to discuss how bail may apply in your situation, you are welcome to contact our office to arrange a consultation.
Speaking with an experienced criminal lawyer can help you understand the options available and what steps may follow.
Contact WN Legal to make an enquiry.
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