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Presumption of bail

Section 10 of the Bail Act 1985 (SA) provides a presumption in favour of bail. The presumption means that bail should be granted unless there are good reasons for it being refused.

The presumption does not apply to bail applications made upon lodging an appeal against a conviction or sentence, or where section 10A applies (see below).

The presumption in favour of bail being granted is subject to the following considerations:

  • the seriousness of the alleged offence;
  • whether the applicant might abscond, offend again, interfere with evidence, hinder police inquiries or intimidate or bribe witnesses to commit perjury;
  • the likelihood of the applicant committing a breach of an intervention order (previously known as restraining orders) under the Intervention Orders (Prevention of Abuse) Act 2009 (SA);
  • if necessary, the protection of the applicant for bail;
  • any medical or other care that the applicant may require;
  • any previous occasion(s) where the applicant has contravened or failed to comply with a term or condition of a bail agreement; or
  • any other relevant matter, such as the strength of the evidence, any prior convictions the applicant may have, and any other special need for the applicant to have bail.

[s 10(1) Bail Act 1985 (SA)]

The presumption in favour of bail being granted is also subject to a primary consideration of the need, or perceived need, of any victim of the alleged offence to be protected from physical violence [Bail Act 1985 (SA) s 10(4)].

Section 10A of the Bail Act 1985 (SA) removes the presumption in favour of bail in certain cases, and requires the person applying for bail to convince the bail authority that there are special circumstances justifying bail before the bail authority can grant bail. Section 10A applies if an applicant was taken into custody for:

  • any of the following offences committed or alleged to have been committed in the course of using a motor vehicle in an attempt to escape pursuit by a police officer or in an attempt to entice a police officer to engage in a pursuit:
  • manslaughter [Criminal Law Consolidation Act 1935 (SA) s 13],
  • causing death or harm [Criminal Law Consolidation Act 1935 (SA) s 19A],
  • choking, suffocation or strangulation in a domestic setting [Criminal Law Consolidation Act 1935 (SA) s 20A];
  • acts endangering life or creating risk of serious harm [Criminal Law Consolidation Act 1935 (SA) s 29];
  • breach of a bail condition that relates to the physical protection of a victim of a previous offence with which the applicant has been charged [Bail Act 1985 (SA) ss 17 and 11(2)(a)(ii)];
  • contravention of an intervention order where the act alleged to constitute the offence involved physical violence or the threat of physical violence;
  • suspicion of having committed serious and organised crime;
  • contravening or failing to comply with a control order or public safety order that was issued under the Serious and Organised Crime Act 2008 (SA);
  • an aggravated offence involving physical violence or a threat of physical violence where an aggravating circumstance of the offence is that, at the time of the alleged offence, the applicant is alleged to have contravened an intervention order of a court and the offence lay within the range of conduct that the intervention order was designed to prevent;
  • an offence of blackmail [Criminal Law Consolidation Act 1935 (SA) s 172];
  • an offence of making a threat or reprisal against an individual or property that relates to persons involved in criminal proceedings or judicial proceedings [Criminal Law Consolidation Act 1935 (SA) s 248];
  • making a threat or reprisal against a public officer [Criminal Law Consolidation Act 1935 (SA) s 250];
  • causing a bushfire [Criminal Law Consolidation Act 1935 (SA) s 85B];
  • a serious firearms offence [Sentencing Act 2017 (SA) Part 3 Division 3];
  • both a serious drug offence (as defined under section 34 of the Controlled Substances Act 1984 (SA)) and a serious offence against the person (according to the meaning of section 74EA of the Summary Offences Act 1953 (SA));
  • being a terror suspect where the applicant has previously been charged with, or convicted of, a terrorist offence, or where they are subject to a terrorism notification or control order under Part 5.3 of the Commonwealth Criminal Code (see section 3B of the Bail Act 1985 (SA). For definition of terror suspect in this context see section 3(1) of the Bail Act 1985 (SA). The offences that are considered terrorist offences are contained in the Bail Regulations 2015 (SA) reg 3A).

Under section 10A(1a) a bail applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist unless the applicant also establishes, by evidence verified on oath or by affirmation, that he or she has not previously been convicted of a serious crime offence or an offence that would have been a serious and organised crime offence had it been committed in South Australia.

The bail authority can question the applicant or any other person who may be able to provide information relevant to the application. If the bail authority is a court it can take evidence on oath from the applicant or any other person. It can also order a report about issues arising in a bail application. Such reports are prepared by officers of the Department for Correctional Services, or, in the case of a child the Department for Education.

Where a person released on bail becomes a terror suspect during the bail period, the bail agreement is taken to be revoked and they can be arrested without warrant [Bail Act 1985 (SA) s 19B].

Presumption of bail  :  Last Revised: Wed Jan 30th 2019
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