Bail is governed in South Australia by the Bail Act 1985. An eligible person may apply for bail to a bail authority. Bail should be considered with the presumption of innocence and the presumption of bail in mind. A bail agreement is a lawful undertaking by the applicant to abide by the conditions of bail. Those conditions can vary greatly. If a person fails without reasonable excuse to abide by a condition of bail then they commit a separate offence of breaching their bail agreement. In some circumstances there is a presumption against bail. Generally a person can seek to review an unfavourable bail decision but a decision by the Supreme Court is usually final. At Woods & Co Lawyers we deal with bail and breaches of bail on a daily basis. It is important to carefully ensure that a bail application is made in the first instance that is comprehensive to ensure both the best chance of obtaining bail and ensuring review rights are maintained.
Who is an eligible person?
An eligible person includes a person taken into custody on a charge of an offence. Convicted persons also are eligible for bail until sentence or their rights of appeal are exhausted. However they do not have a presumption of bail in their favour.
Who is a bail authority?
A bail authority initially is a police officer of the rank of Sergeant or above or in charge of a police station. Police can grant bail in the first instance and often do with conditions. If they refuse bail then you can seek a telephone review. If bail is refused then the person will otherwise appear in court either that day or the following day (unless a weekend).
Once the matter is listed before a court then the police no longer become a bail authority and Magistrate takes conduct of the hearing. It is imperative to present a bail application carefully at this stage. While we recognise the urgency to make an application it is in our view better to do it properly and receive bail rather than have bail refused which to often result in a costly review to the Supreme Court.
What does the bail authority consider?
The powers are wide but generally a person should be released on bail unless having regard to such things as;
- the gravity of the offence
- the likelihood the applicant may abscond, offend again or interfere with evidence or witnesses
- any other relevant matter. Such as health, protection, and history of bail breaches
- The court must give primary consideration to the need a victim may perceive for physical protection
- If the person is charge with a child sexual material offence then the court must take into account the harm that people do to children in contributing to the demand.
Who is not entitled to the presumption of bail?
Some applicants have to demonstrate special circumstances before being granted bail. At Woods & Co Lawyers we are up to date with the latest decisions and ready to assist you. If you are charged as an organised crime suspect then not only do you have to justify special circumstances but you have to satisfy some conditions on oath.
The presumption of bail is removed in cases such as Manslaughter, Causing death by dangerous driving, breaching intervention orders or bail when a condition is to protect a victim, blackmail, interfering with witnesses and many others such as serious drug offences, serious firearm offences and terror suspects. The list is constantly evolving and eroding the presumption of bail.
What are my conditions of bail?
These can be wide and varied and offered to ensure attendance at court, the protection of any victim and the risk of reoffending or absconding. A bail agreement can contain a guarantee from another person, a cash surety, a condition of residence, reporting, supervision, and home detention. Contact our experienced team to ensure that the minimum restrictions are placed on your freedom while the matter is being resolved.