What is bail?
Bail is an agreement in which a person makes a written undertaking to the court. A person who is in custody because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on bail. Normally in signing a bail agreement a person undertakes:
- to be present every time the matter is in court until the proceedings are finished;
- to comply with any conditions set out in the agreement as to conduct while on bail see Conditions of bail; and
- to forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement.
Variation or revocation of bail
Although a bail agreement is intended to continue until the court proceedings have ended one way or another, the authority granting bail or the court, can at any time vary the conditions of an agreement, or revoke it altogether (for example, where there is reason to believe that the person on bail does not intend to appear at court or because the person has committed a further offence).
In general terms the two authorities that may grant bail are the police and the courts [s 5 Bail Act 1985 (SA)].
A person who has been arrested can make a bail application to any police officer who is of or above the rank of sergeant or who is the responsible officer (officer in charge of the police station or a police officer who has been designated the responsibility by the officer in charge for people accepted into custody of that station) of the police station [s 5(1)(e)(iii)-(iv) Bail Act 1985 (SA)].
However, a person is not eligible to apply for bail while being detained for purposes related to the investigation of an offence pursuant to the Summary Offences Act 1953 (SA). In that case, before applying for bail, he or she must wait until detention for that purpose has finished or until charged with an offence [s 4 Bail Act 1985 (SA)].
Where the application for bail is unsuccessful an application may be made for a review of the decision, see refusal and review of bail decisions.
If a person has been arrested on a warrant issued by a court, and the warrant contains a clause prohibiting bail, then bail cannot be granted by a police officer [s 5(1)(e)(ii)].
Further, if a person is considered a terror suspect (pursuant to the definition in section 3B of the Bail Act 1985 (SA)) then only a court can grant that person bail, and a terrorism intelligence authority is entitled to be heard in the bail hearing [Bail Act 1985 (SA) s 5(2)].
A person who is not released on bail by the police, must be brought before a court as soon as reasonably practicable but in any event not later than 4.00pm. on the next working day following arrest [s 13(3)]. The person may then apply to the court for bail or for review of the refusal of bail.
Any time a person appears before a court, that court has the power to grant bail. This is true whether:
- the person has not yet been tried or committed for trial;
- the person has been convicted of an offence but has not yet been sentenced;
- the person has been convicted and sentenced but intends to appeal;
- the person has been found not guilty due to mental incompetence, and has been declared liable to supervision, but final orders about the terms of supervision have not yet been made; or
- the person is appearing in court for failing to observe a condition of an agreement (such as a bond).
Even if a person is not already in custody a court may require them to enter into a bail agreement before they are free to leave the precincts of the court.
The duty solicitor can help people in police custody to apply for bail in the Magistrates Court or the Youth Court. People in custody who need this assistance may include:
- people arrested on outstanding warrants of apprehension issued due to prior failure to answer bail or summons, or because the whereabouts of the person was not known so they were not able to be summonsed. See Warrants;
- people arrested on fresh charges and refused bail by the Watchhouse sergeant;
- a combination of the above. The person may have been arrested on a fresh charge and a warrant check will have revealed that he/she also has outstanding warrants people arrested for breach of bail agreements;
- people who have been unable to satisfy a condition of bail previously set (such as a condition requiring a guarantor);
- people who are to appear in court as a witness and have been arrested on a warrant because they have failed to attend court in answer to a witness summons.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.