What is bail?

When a person is charged with having committed an offence, they can either be held in custody until their court case is heard or they may be released from police or court custody to return to court at a later date to face the charge or charges against them. Being granted bail means being released from custody on the understanding that a defendant will appear in court to face a charge. In the Australian Capital Territory the legislation dealing with matters of bail is the Bail Act 1992.

When bail can be granted

Theoretically a defendant can apply for bail at any time up until the conclusion of the final appeal. However, the reality is that the court is extremely reluctant to grant bail to a defendant who has been convicted of the offence and is appealing the conviction. Only in exceptional circumstances will bail be granted in such cases.

Where bail is refused

Bail can be granted as soon as is reasonably practicable after arrest by police. If bail is refused then a request can be made for the decision to be reviewed by a senior police officer. If this request is also unsuccessful then a request can be made to a Magistrate at the first Court appearance. A subsequent appeal can also be made to Supreme Court if the Magistrate refuses bail. The Supreme Court generally only hears such applications if there are special facts or circumstances.

If a person is charged with committing a minor offence (such as a breaching the peace) - and if the penalty imposed is relatively minor (such as a fine or imprisonment of less than six months) - then there is a presumption that the person is generally entitled to bail. (See Division 2.2, Presumption of Bail, within Part 2, Availability of Bail, of the Bail Act 1992.)

However, if the defendant is accused of committing a serious offence like manslaughter, sexual assault, threatening to kill, stalking or other serious charges, then it is assumed that bail will not automatically be granted. (See Division 2.3, No Presumption for Bail, and Division 2.4, Presumption Against Bail, within Part 2, Availability of Bail, of the Bail Act 1992.) In these cases bail will be refused unless the defendant can show special or exceptional circumstances as to why bail should be granted.

Matters taken into account when deciding to grant bail

The court will take into account a number of considerations in deciding whether or not to grant bail. These considerations are outlined in s 22(1) of the Bail Act 1992.

At a bail hearing the following matters may be taken into account by the court:

  • the nature and seriousness of the alleged crime;
  • the likelihood of the defendant being found guilty;
  • the possible punishment, should the defendant be found guilty;
  • the defendant’s employment record, the strength of their family ties; and
  • whether the defendant has broken any bail conditions that have been set in the past.

In addition to the above considerations the judge may also refer to the defendant’s character, their health, whether they have any family members that are dependent on them, the possibility of any further crimes being committed by the defendant while on bail, the likelihood that the defendant will interfere with witnesses, and, most importantly, whether the defendant will re-appear in court if bail is granted.

When arriving at a decision as to whether or not to grant bail, the Court is not bound by rules of evidence that apply in criminal matters and so is able to take on a more proactive role in obtaining information upon which to base its decision. The Court, therefore, may take into account any piece of information that it deems to be relevant and reliable and must permit the accused as well as the police officer an opportunity to give evidence as to why bail should be permitted or refused. The case for or against bail is based on the civil standard of the balance of probabilities.

Bail conditions

Bail can be granted unconditionally or with conditions attached. Some of the better known conditions are that the accused:

  • surrender their passport;
  • stay away from a person(s) or specific area;
  • reports regularly to police;
  • attends a drug treatment program;
  • lodges a certain amount of money or deeds as surety;
  • reside at a specific address while the matter is being heard in Court; and
  • appear in Court when required.

If the defendant is unhappy with the bail conditions, and if the Magistrate refused to amend them, then they may apply to the Supreme Court for the conditions to be varied or cancelled arguing that the conditions are either oppressive or overly harsh. During each new Court appearance the issue of bail will arise. If the accused has complied with previous bail conditions then there is a good likelihood that bail will continue to be granted.


In order to ensure the attendance of the defendant at Court, a surety or security is required by the Court. This may take the form of an amount of money or the deed to a property or objects to the monetary value being asked by the Court. The Court may also request that an acceptable person - such as a close relative - act as a surety. This acts as an added incentive for the defendant to attend Court since the surety will lose whatever security, such as money, that they provided to the Court. The onus is on the surety to ensure that the defendant attend Court. Depending on how diligent the surety was in fulfilling their responsibilities and obligations, they may lose all or part of their security.

Failing to appear in Court  

If the defendant does not appear before Court on the expected day then bail is forfeited. The defendant will need to provide the Court with a reasonable excuse as why they did not appear before Court if they are not to be charged with an offence for failing to appear. In addition to a possible charge, a failure to answer your bail may result in bail being revoked and it being more difficult to get in the future - also any security or surety is liable to be forfeited.