Bail Act 1982

• Accused persons in custody for any offence, who have rights to bail consideration under s 5.
• Arresting officers (police), who must consider bail under s 6.
• Courts at every level, which must consider bail for unconvicted accused under s 7.
• Magistrates' courts, which grant bail for most offences.
• The District Court and Supreme Court, which have jurisdiction for more serious matters and are the exclusive bail authorities for certain offences.
• The Children's Court, which exercises bail jurisdiction for children.
• Sureties, who accept personal liability for the accused's appearance.
• Prosecutors, who may apply for variation or revocation of bail under s 54.
• Corrections authorities (CEO corrections), who administer electronic monitoring and home detention conditions.

Accused's duties under bail undertaking. The accused must appear at the time and place specified (s 28(2)(a)); must appear as soon as practicable at the correct court if the scheduled appearance is missed (s 28(2)(b)); must comply with any conditions (s 28(2)(c)-(e)).

Arresting officer's duty. Section 6 requires the arresting officer to consider whether bail should be granted and, if so, to grant it, unless the offence falls within specified categories or the officer has grounds to believe the accused should be held.

Court's duty. Section 7 requires a court to consider bail for an unconvicted accused at each appearance. The duty may be discharged by granting bail, refusing bail, or dispensing with bail. The court must inform the accused of the right to apply for bail in certain circumstances.

Information provision. Section 8 requires the accused to be given information about bail and approved forms.

Jurisdiction to grant bail. Section 13 sets out the hierarchy of jurisdiction. Most bail decisions are made at the magistrates' court level. Section 14 gives judges of superior courts wide bail jurisdiction. Section 15 provides that only a judge of the Supreme Court or Children's Court may grant bail to an accused in custody for murder.

Murder accused - special regime (s 7B). An adult accused of murder may apply to a Supreme Court judge for bail at any time before conviction (s 7B(3)). Once bail is refused, the case cannot be reconsidered unless new facts or circumstances arise or the accused failed to adequately present their case (s 7B(5)-(6)). This is a deliberately restrictive regime that requires positive grounds to revisit a refusal.

Children charged with murder (s 7C). The judicial officer who has custody of a child charged with murder must ensure the child is brought before a Children's Court judge for bail consideration as soon as practicable.

Terrorism-linked accused (s 16B). Special restrictions apply to persons linked to terrorism.

Dispensing with bail (s 7A). A court may, in appropriate circumstances, dispense with the requirement for bail (for example, for minor matters where the accused is reliable and the process would be disproportionate).

Conditions. Courts have a wide discretion to impose conditions under Schedule 1, Part D, tailored to address the risk factors in the particular case. Conditions should be proportionate to the risks identified.

Variation and revocation (s 54). A prosecutor or police officer may cause an accused who has been released on bail to appear before a judicial officer to show cause why bail should not be varied or revoked if there are reasonable grounds to believe the accused: is unlikely to comply with bail requirements; is in breach of conditions; any surety is no longer suitable or any security is insufficient; the appeal has been discontinued; or new facts or circumstances have arisen including that the accused has become a person linked to terrorism (s 54(1)).

Failing to comply with bail undertaking (s 51). An accused who fails to appear at the required time and place without reasonable cause (s 51(1)) or who fails to appear as soon as practicable after a missed appearance (s 51(2)) commits an offence. The maximum penalty is a $10,000 fine or 3 years imprisonment, or both (s 51(6)). A court convicting under s 51 may also order the accused to pay costs of apprehension following the failure (s 51(7)).

Failure to comply with conditions (s 51(2a)). Where bail conditions include purposes specified in Schedule 1, Part D, clause 2(2)(c) or (d), failure to comply also constitutes an offence under s 51(2a).

Prosecution in superior courts (s 52). Where the court before which the accused was to appear is the Supreme Court or District Court, the accused is to be dealt with summarily for the s 51 offence before a judge of the relevant court.

Forfeiture. A surety who has given security may be liable to forfeit that sum if the accused fails to appear.

Arrest without warrant. A police officer may arrest a bailed accused without warrant to bring them before a judicial officer where the conditions for a show-cause process under s 54 are satisfied (s 54(2)(a)).

Initial bail consideration. Must occur as soon as practicable after arrest and charge. The arresting officer considers bail first (s 6). If not released, the accused must be brought before a court as soon as practicable (s 5(1)(b)).

Court bail at each hearing. At each appearance, the court must consider bail for an unconvicted accused (s 7). At adjournments, the court typically continues bail or makes a fresh decision.

Murder accused. The initial appearance duty under s 7B(4) requires the judicial officer to inform the accused of their right to apply to a Supreme Court judge for bail. The application to the judge is a separate, distinct process.

Appeal against bail decisions. Section 15A provides for appeals to the Supreme Court against a judge's decision on bail in murder cases. Section 53 provides for appeals against decisions under s 52 (summary prosecution of s 51 offences).

Show cause proceedings. Under s 54(2)(b), an application may be made to the appropriate judicial officer for a summons or warrant. Proceedings are conducted in accordance with the Criminal Procedure Act 2004 rules (s 54(3)).

Criminal Procedure Act 2004 (WA). Section 52 and s 54 cross-reference the Criminal Procedure Act 2004 for the procedure in show-cause and s 51 prosecution proceedings in superior courts.

Criminal Appeals Act 2004 (WA). Section 53 applies Part 2 of the Criminal Appeals Act 2004 to appeals against decisions made under s 52 of the Bail Act 1982.

Criminal Investigation Act 2006 (WA). Section 6 references s 142 of the Criminal Investigation Act 2006 (unconditional release by arresting officer without charge) as the alternative to bail consideration.

Young Offenders Act 1994 (WA). The definition of "authorised community services officer" in s 3(1) references the superintendents and officers of detention centres under the Young Offenders Act 1994, who have roles in the bail consideration process for children.

Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA). Section 4AB of the Bail Act applies Part 2 of that Act, enabling certain bail processes to be conducted electronically.

Once refused for murder, very high bar to reconsider. Under s 7B(5)-(6), once a Supreme Court judge has refused bail for a murder accused, the case cannot be reconsidered unless the accused can show new facts or circumstances, or that the case was not adequately presented. This prevents serial bail applications as a litigation tactic but means the initial application must be thorough.

Section 51 - reasonable cause defence only for s 51(1), not s 51(2). The "without reasonable cause" qualifier applies to s 51(1) (failure to appear at the specified time and place). Section 51(2) (failure to appear as soon as practicable after a missed appearance) does not contain the same qualifier. An accused who misses an appearance and then delays in presenting themselves to the court may have no defence on the second limb even if the original absence was excused.

Accused cannot be convicted in absence. Section 51(3) provides that an accused cannot be convicted in their absence of an offence under s 51. This protects against default convictions for bail breach when the accused is already before another court or cannot participate.

Electronic monitoring conditions are mandatory in some cases. Schedule 1, Part E clause 1 provides for circumstances in which an electronic monitoring condition must (not may) be imposed. Practitioners and courts need to check whether mandatory electronic monitoring conditions apply before bail is granted without them.

Show cause applications can be made before a breach. Section 54(1) allows show cause where the officer or surety has reasonable grounds to believe the accused is not likely to comply. This prospective application does not require an actual breach to have occurred, which can be significant where intelligence suggests a flight risk but no breach has yet taken place.

Example 1: Initial bail at the police station. A person is arrested and charged with an offence. The arresting officer has a duty under s 6 to consider bail. If the officer forms a view that bail should not be granted, or the offence is within a category where the officer lacks bail authority, the accused must be brought before a court as soon as practicable under s 5(1)(b).

Example 2: Murder accused bail application. An adult accused of murder is brought before a magistrate at their initial appearance. The magistrate cannot grant bail: only a Supreme Court judge has jurisdiction under s 15. The magistrate must inform the accused of the right to apply to a Supreme Court judge under s 7B(4). The accused then applies to a judge. The judge refuses bail. To bring a second application, the accused must satisfy the judge under s 7B(6) that new facts or circumstances have arisen or that the initial case was inadequately presented.

Example 3: Electronic monitoring condition. An accused on bail for a serious assault is granted bail with a home detention condition under s 28(2)(d). They must remain at specified premises subject to the terms set. Breach of the home detention condition makes the accused liable under s 51(2a), in addition to the s 54 show-cause process being available to the prosecutor.

Example 4: Bail breach prosecution. An accused fails to appear at their scheduled Magistrates Court hearing without reasonable cause. Section 51(1) is engaged. A warrant is issued. The accused is apprehended and charged with the s 51(1) offence. On conviction, the court may impose a fine up to $10,000 or imprisonment up to 3 years, or both, and may also order the costs of apprehension under s 51(7).

Example 5: Surety withdrawal. A surety who has guaranteed the accused's appearance forms the view that the accused intends to abscond. The surety notifies the prosecutor in writing (s 54(1)(a)). The prosecutor may then cause the accused to appear before an appropriate judicial officer to show cause why bail should not be varied or revoked (s 54(1)).