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Bail Lawyers Perth
We can assist with your bail applications. Click here to book a free initial consultation. We provide clear and informative legal advice, forceful representation and our fees are highly competitive.
Your right to bail
Once you are arrested for an offence, Police must as soon as practicable make a decision to either charge you or release you without charge. If you are charged with a minor criminal or traffic offence which does not carry any real risk of imprisonment, you are unlikely to be placed on bail. Instead, Police will either send you a Court Hearing Notice or serve you with a Summons advising you of the time and place of the first court hearing of the charge. If you receive a Court Hearing Notice, attendance at court is optional, rather than attending court you can complete the written plea form and post or email the form to the court. Police must serve you with a summons in person. If you receive a summons, attendance at court is mandatory, if you fail to attend the court hearing an arrest warrant will be issued.
If Police ask you to present yourself at a Police Station for questioning in relation to a serious charge, you should arrange an appointment in the early morning. If you are charged and Police bail is refused, you will be brought before a Magistrate to have bail considered the same day and avoid spending the night in the lock-up. However, if you are arrested in the afternoon or evening and Police bail is refused, you will be kept in the lock-up overnight and taken before the court the following morning for bail to be considered.
At your initial court appearance, you are entitled to have bail considered by a court. If you are in custody, you are entitled to have bail considered at each subsequent court appearance until a decision has been made.
At the hearing of a bail application, the court may take into account such information as it thinks fit, whether or not the information would normally be admissible in evidence. You may wish to support the information put on your behalf by providing a statement or affidavit to your solicitor. You may also provide the court with references or affidavits from other persons who support your case for bail. We will advise you on how best to present your case for bail and on the type of supporting evidence that is likely to assist your application. It is important that careful consideration be given to your bail application because if bail is refused and you are facing serious indictable charges, it is likely that you will be waiting 18 – 24 months for a jury trial.
When considering bail, the court can have regard to:
- Whether you may fail to appear in court, including whether you are a flight risk,
- The risk that you may commit a further offence and the need to protect the community,
- Whether you are likely to endanger the safety or any person or property,
- The risk that you may interfere with witnesses or obstruct the course of justice,
- Whether you need to be held in custody for your own protection,
- Whether granting bail may prejudice the proper conduct of the trial,
- Whether the prosecutor opposes bail, if they do, the grounds for opposing bail,
- Whether conditions could be imposed which would sufficiently remove the risks referred to above.
- The nature and seriousness of the offences and the probable outcome if you are convicted,
- Your character, personally circumstances, place of residence and financial position
- Your history of compliance with grants of bail.
- The Strength of the case against you and the fact that you are presumed to be innocent,
- The likely delay in the matters reaching trial. For example, serious indictable charges will often take 18 – 24 months from the date that you are charged to reach a jury trial. If you are convicted and the sentence imposed is likely to be less than 4 years, you may spend more time in custody awaiting trial than you would have done had you simply pled guilty at the first opportunity.
- Whether the circumstances of the offence or offences are so serious in nature as to make a grant of bail inappropriate.
Common bail conditions include:
- Reporting to a Police Station on one or more days each week,
- To comply with a curfew requiring that you be at home at your bail address between certain hours of the night, for example: 7pm – 7am.
- Not to leave Western Australia;
- Not to approach any place of international departure;
- Surrender of your passport to the court registry,
- Protective conditions prohibiting you from contacting the complainant, witnesses and co-accused;
- to give a personal guarantee that you will comply with bail fixed at a dollar amount;
- not to have unsupervised contact with children aged under 16 years.
- not to use the internet, other than for the purpose of personal banking, checking court appearances or communicating with your legal representative,
- to have a third party, known as a surety, guaranteeing that you will comply with your bail, the surety is also fixed at a dollar amount.
Surety bail conditions
If you are charged with serious indictable offences, the court will often require you to provide a surety. A surety is a person who provides the court with a financial guarantee that you will comply with your bail conditions. Providing a significant surety will provide the court with some reassurance that you are likely to comply with your bail conditions and are not a flight risk. A surety amount can be ordered to be split among more than one surety. A person who acts as surety must provide photo identification and proof that they have sufficient assets to guarantee the surety undertaking amount. The person must provide proof of assets such as vehicle registration papers, home loan documents or a bank statement. The surety cannot themselves be facing serious charges or have outstanding fines. If you breach surety bail, the State will seek that the surety forfeit in full the sum of the surety undertaking. It is an offence for you to indemnify or agree to indemnify a surety for any liability which they incur as a result of entering into a surety undertaking.
Bail in domestic violence cases
In cases involving domestic violence, the Court is required to obtain a risk assessment report before granting an accused person bail. This involves an officer from the Department of Community corrections speaking with the complainant about the offending and their attitude to you being granted bail. They will prepare a report for the court, which will reference any history of domestic violence or other violence offending. The report will make a recommendation to the court about whether you should be granted bail having regard to any risk to the complainant. The court will also have regard to protective conditions that are able to be put in place to ensure the safety of the complainant.
Home detention bail
If the court considers that you are at significant risk of committing further offences, interfering with witnesses or pose unacceptable flight risk, the court may decline to grant regular bail and instead consider granting home detention bail. The court is required to order that a home detention bail report be prepared. You will be required to nominate a bail address. An officer from Community Corrections will then inspect the address and speak with the owner or occupier of the address about you being bailed to the address. They will also speak to you to confirm that you consider the address suitable for the purpose of home detention bail. A report will then be provided to the court indicating whether or not the address is considered suitable for home detention bail. The report will also make recommendations about the types of conditions that should be placed on your home detention bail. Home detention bail is a more stringent form of bail. The strict conditions allay the court’s concerns reoffending, flight risk or interfering with witnesses, provided that you comply with the strict conditions. Home detention bail usually requires you to wear an electronic GPS bracelet. Other common conditions include maintaining abstinence from drugs and alcohol and providing regular urine samples. The court can make allowance for you to work while you are on home detention bail. The court is more likely to relax the conditions of home detention bail after you have demonstrated ongoing compliance over a month or more.
Applications to vary bail
An application can be made to the court to vary your bail conditions. The application must be made to whichever court currently has carriage of your charges. If you change bail address, it is important that you notify the court of the change of address before moving, so as to avoid breaching your bail. If you wish to vary other conditions such as the days that you report to a Police Station or reporting hours, you will need to provide some evidence of the need for the variation, for example a letter from your employer confirming that reporting to the Police station on weekdays is interfering with your job. If you are seeking a variation to travel interstate or overseas, you will need to provide evidence of the trip itinerary including return journey and evidence of the purpose of travel, for example a evidence of a work conference or a wedding invitation.
The court will not ordinarily vary protective bail conditions which prevent you from having contact with the complainant, witnesses or co-accused. If the complainant is your partner and the complainant wishes to have the protective bail conditions removed, the complainant needs to make their position known to the case officer and the prosecution, the prosecution will then make known to the court that the complainant wishes for the protective condition to be removed. However, under no circumstances should contact the complainant and encourage him or her to remove the protective bail conditions.
It is very important that you comply with your protective bail conditions. If you breach protective bail conditions, the court will consider revoking your bail.
Schedule 2 Bail
If you are charged with a serous offence while on bail or a parole order for another serious offence, there is a strong presumption against a grant of bail. A court considering schedule 2 bail must refuse bail unless satisfied there are exceptional reasons that you should not be kept in custody. There are no specific categories of exceptional reasons however some examples would be where a person have a serious health condition which is likely to deteriorate if they are taken into custody, or where a child or other family member will suffer extreme hardship as a result of the person being taken into custody. If you are able to reserve a bed in a residential rehabilitation facility, this is also capable of being exceptional. A significant delay in your matter reaching trial is unlikely to be a sufficiently exceptional reason in isolation. However, delay in combination with other factors may amount to exceptional reasons.
Re-hearing of bail applications
You may bring an application to have bail reheard in same court which refused bail if you are able to satisfy the court that: (a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or (b) you failed to adequately present the case for bail when it was last presented; or (c) where you are subject to home detention bail, you have complied with home detention bail for a period of 1 month or more.
Right of appeal against a refusal of bail
An accused who has bail formally refused by the Magistrates Court has the right to appeal the decision to refuse bail to the Supreme Court. On appeal, the Supreme Court is able to take into account additional information which was not before the court that originally refused bail.
Breaches of bail and court’s power to revoke bail
If you are unfit to attend court due to illness, it is crucial that you obtain a medical certificate as early as possible either the day before court or otherwise in the early morning of the day of your court appearance. The certificate must confirm you are medically unfit to attend court on the day of the hearing. The medical certificate should be emailed to the court as soon as practicable with a covering email explaining that you are unable to attend court due to medical reasons and requesting that the matter be adjourned in your absence. It is advisable to telephone the court registry and confirm that they have received the email and medical certificate. The court may then accept that you are absent for reasonable cause and adjourn the matter in your absence. If your matter is called on and no medical certificate has been provided, the court will issue a bench warrant for your arrest.
If you repeatedly breach your bail, for example by failing to be at home during curfew, failing to report to a Police Station when required, missing court appearances or by breaching protective bail conditions, the prosecution may apply to the court for an order revoking your bail. You may also be charged with Breach of Bail, which carries a maximum fine of $10 000 or imprisonment for a term not exceeding 3 years, or both.