‘Bail’ is an undertaking which secures the release from custody of a person charged. It is conditional upon that person appearing in court at a specified time and place. There may be several further conditions placed upon a person, depending on the seriousness of the offence alleged to have been committed and the history of the person arrested. The power to grant bail is given to police officers and also the courts.
Not everyone arrested for an offence is required to be granted bail. In the case of minor charges (e.g. traffic, shop lifting), a summons directing the person charged to appear in court may be issued. If the person charged fails to appear on the date on the summons, a warrant may be issued for their arrest if there is proof that the summons was served on them; or a further notice to appear can be issued. If the charge is of a very minor nature the matter may be dealt with ‘ex parte’ (in the person’s absence).
Bail in Tasmania is in the main governed by the Bail Act 1994 (Tas). However there are also provisions for the granting of bail under sections 304 and 305 of the Criminal Code Act 1924 (Tas), sections 34 and 35 of the the Justices Act 1959 (Tas), and section 12 of the Family Violence Act 2004 (Tas).
The granting of police bail is governed by section 34 of the Justices Act. This provides a discretion to the police to release persons from custody, provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so.
A person released on police bail is provided with a police bail document which provides information of the charge and the date and time that the person has to appear in court, and any other conditions of bail that the police require. The person released must undertake to appear on the date and time as set out in the bail document and to adhere to any other bail conditions. It is an offence to not attend court in accordance with the police bail document or to breach any other conditions set out in the document.
If a person is arrested on a warrant they must be brought before a court to determine if further bail should be granted or if the conditions of police bail should be varied.
Any person charged with an offence who is not released from custody may apply for bail. There is a presumption that anyone charged is innocent until proven guilty. Accordingly, there exists a presumption in favour of an accused person that they should be granted bail until their matter can be dealt with. The desire to not hold people in custody before their trial may however at times be overridden by a need to protect the public, if for instance the offence is of a very serious nature e.g. murder, or if the accused person has in the past shown a disregard for court orders and is unlikely to attend court if granted bail.
If bail is not granted at a person’s first court appearance, applications can be made at any subsequent appearances, subject to the provisions in section 22 of the Bail Act.
If a person charged is not granted bail and is remanded in custody, they must be brought before the court every 28 days for a formal remand.
In granting bail the court takes into account the following important considerations:
- will the person appear to answer the charge;
- is it in the public interest to release them;
- are they likely to re-offend if granted bail.
Other relevant matters for consideration are:
- Occupation and how long the applicant has been at that particular job. Will the applicant lose their job if denied bail?
- Marital status, dependants, financial circumstances (income and expense);
- If unemployed, how long have they been unemployed; what efforts have been made to obtain work; what is the likelihood of obtaining work?
- What is the applicant charged with; have they been charged with similar offences in the past; if so, how long ago?
- Is there anyone who will go surety (see below) for the applicant? If yes, that person should be in court and available to sign the bail paper at every court appearance.
A surety is a person who accepts responsibility for the accused, answering their bail and reporting conditions stated on the bail paper. The surety might be a spouse, parent or friend of the defendant. If the defendant does not appear or breaches any bail conditions, the surety is likely to be ‘estreated’. This means that the surety, if an estreatment application is made, will be liable to pay the whole or part of the sum of money that was put forward to secure the release of the person charged. So if bail was set at $10,000, the surety will have to pay this sum.
Often there is no requirement for the surety to provide the actual cash amount set down by the court at the time of granting bail, but a surety may have to establish to the satisfaction of the court that they have the resources to pay if called upon. Thus if a surety has steady employment or has a car or house this would be evidence that the court would consider in deciding whether to accept the surety.
If a surety is not available at the time when an application is made, then the applicant can either ask that the matter be ‘stood down’ until the surety arrives at court or arrange for the surety to visit and sign the paper at the jail provided that they are accepted as a suitable surety by the court.
A surety should be satisfied that the person for whom they are going surety will adhere to the bail conditions sought. If the surety becomes aware, or should have become aware, that the person has broken one of their bail conditions (see below) or may not turn up in court, they should contact the police. Not to do so means that the sum of money set as surety becomes liable to be forfeited on an application brought by the prosecution section.
The Magistrates Court has the jurisdiction to grant bail on all offences except murder. Only the Supreme Court has jurisdiction to grant bail for murder.
The court has the power to make bail subject to a wide range of conditions. Examples of such conditions are as follows:
- that the person reside at a particular address;
- that the person report to the nearest police station on particular days between prescribed hours;
- that the person not be absent from their residential address between certain hours (that is, a curfew);
- that the person not approach another person directly or indirectly. (This is especially common in cases of offences involving violence such as assault, wounding or rape.)
Less commonly, the court may impose conditions that the person not be in particular localities or associate with particular persons. The person may also be required to hand in their passport and not be found within a certain distance of any air and sea terminal, if it is believed the person is likely to leave the state while on bail. A surety (see above) is also a condition of bail.
In the case of drink driving offences it will often be a condition of bail that the person charged must not drive with any alcohol in their body, or, in more serious cases, not be found behind the wheel of a motor vehicle.
Such conditions are imposed to try to control the behaviour of people on bail by keeping track of their movements and stopping them from re-offending while on bail. Conditions are usually sought through the prosecutor, though the court can impose bail conditions itself.
Breach of bail conditions is a serious matter, for which the person can be arrested and brought before the court. If the breach is proved, the person breaching the condition is liable to a fine or imprisonment. It may also mean that the court will be reluctant to grant bail in the future.
Review of Bail Decisions
Where a refusal of bail or the imposition of particular bail conditions is reviewed, this review is treated as a new application for bail. The following rules apply to the review of bail decisions:
- a magistrate can review the decision of a justice of the peace;
- a judge can review a decision of a magistrate;
- the Full Court of the Criminal Court (that is three judges) can review the decision of a single judge.
If in prison, forms for an application to review a bail decision can be obtained from the prison authorities.
Bail Pending Appeal
If a person is convicted of a matter, they may wish to appeal either or both the sentence or the conviction. In these circumstances they may wish to apply for bail pending the outcome of the appeal, pursuant to section 415 of the Criminal Code.
Bail in these instances will only be granted if special circumstances exist. The most common situation where bail will be granted is if the applicant has been given a short sentence, and they are likely to have served their sentence prior to their appeal being heard.
Bail and Family Violence
There are special considerations that apply when a court, judge or police officer is considering bail for a person charged with a family violence offence. The primary consideration is whether the person’s release would be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child (s12(1), Family Violence Act 2004). In other words – would the person continue to behave in a violent manner toward a family member or child?
Other considerations include, but are not limited to:
- any available risk screening or rehabilitation program assessment;
- the person’s demeanour;
- the result of any available safety audit;
- the availability of suitable accommodation for the person and any affected person or affected child;
- any other matter the judge, court or police officer considers relevant (s12(2)).
If a person is charged under the Family Violence Act with breaching a family violence order (FVO) or a Police Family Violence Order (PFVO), they are not to be admitted to bail (s12(3)).