Please note - If you were arrested or received a Notice to Appear or a Summons before 1/11/10, the procedures may be slightly different. If this applies to you, you should get legal advice.
Bail is a written promise you sign (called an undertaking) to come to court on the date written on the undertaking. Sometimes as well as promising to come to court, you have to do more things like reporting to a police station every so often, living at a certain address and not somewhere else, or you may have to stay away from someone. These are called bail conditions.
If I have to go to court, do I go to jail until court?
There are several ways you might find out you have to go to court and what you are in trouble for.
If you have to go to court, the police may:
- just give you a bit of paper which says you must go to court and why on a future date and then they leave OR
- take you straight to jail (the watch house) and you stay there until you go to court OR
- take you to the police station and give you bail (called watch house bail) and let you leave and come to court on another day.
Can I apply for bail at court?
Once you go to court, if for some reason your matter is not finished on that day, (you may want to put it off or it may have to be put off) you can apply for bail.
If the court gives you bail you are allowed to leave and come back to court on another day. If your matter is not finished and the court does not give you bail, then you will go to jail and stay there until the next court date. On that date you can again apply for bail. Sometimes you may have to apply to a higher court for bail.
- if you get watch house bail or the court gives you bail, you will sign some paperwork and be released.
- it is very important that you read and understand your bail undertaking, that is the date you must come back to court and any bail conditions. You should keep a copy of the undertaking. If you lose your copy, you can go back to the court or the watch house and ask for another copy.
- if you do not come back to court on the date in your bail undertaking, you are breaking the law. Even if you have a lawyer, it is up to you to remember the court date - it is you and not your lawyer who will be punished if you do not appear in court on the right date.
- if you miss the court date you should talk to a lawyer for legal advice immediately.
- if you break a condition of your bail you are breaking the law. So if you do not report on a day you were supposed to, you are breaking the law and you should get legal advice immediately.
What does the court look at to decide if I get bail?
The court will look at many things like:
- the type of thing the police say you have done and how serious it is
- if you have a place to live
- if you have a job
- if you have a criminal record
- if you have not turned up for other court dates in the past
- whether the court thinks you are a danger to other people
- whether the court thinks you will break the law again
- if you are in a “show cause situation”, it is harder to get bail because you have to show the court why you should get bail and not stay in jail.
In most circumstances, the court will grant you bail unless the prosecutors can demonstrate that there is an unacceptable risk of you committing further offences or failing to appear.
In some cases, you are in what is called a “show cause” position. What that means is that you will not get bail unless you can show the court that your imprisonment is not justified.
There are several things which can put you in a “show cause” position. Some of these circumstances include:
- if you are charged with a serious offence while you are on bail for a serious offence
- if it is alleged that you used or threatened to use a weapon in the commission of an offence
- if the offence is against the Bail Act, for example, if you are charged for failing to appear in court
- if the offence is the breach of a control order or a public safety order made under the Criminal Organisations Act 2009
- if the offence is threatening a law enforcement officer when or because the officer is investigating the activities of a criminal organisation
- if you are deemed to have at any time been a participant in a criminal organisation, regardless of whether the offence is related to your participation in the criminal organisation or not. For more information about being a participant in a criminal organisation, see Participating in a criminal organisation.
- if you are charged with an offence under the G20 (Safety and Security) Act 2013 where an element of violence such as assault or damage to property is associated with the offence or if the offence results from an attempt to disrupt a G20 event. See G20.
There are other reasons which may also put you in “show cause”. Your lawyer, or a duty lawyer, will be able to advise you if you are in “show cause” and the ways in which you can attempt to show the court that your imprisonment is not justified.
If you are deemed to have at any time been a participant in a criminal organisation, the court must refuse to grant you bail unless you can show cause why your detention is not justified. You should get legal advice. For more information about being a participant in a criminal organisation, see Participating in a criminal organisation.
As with any legal problem, it is always best to talk to a lawyer and get legal advice as soon as you can.
- bail is not automatic
- the court may take away your bail or change bail conditions at any time you have to go before the court
- if you want to change your bail conditions you need to go back to court.
The court or police officer who grants you bail may include whatever special conditions in your bail that they think are necessary to ensure that you will:
- appear as required
- not commit an offence while on bail
- not endanger the safety or welfare of others while on bail
- not interfere with witnesses or obstruct the course of justice (whether in relation to your own case or someone else’s).
If you are not an Australian citizen or permanent resident, the court may order that you are detained in custody until you surrender your passport. You should get legal advice.
If you are deemed to have at any time been a participant in a criminal organisation and you are granted bail, you will be required to surrender your passport (see Participating in a criminal organisation). You should get legal advice.
If you are charged with particular offences involving violence and it is alleged that the offence was committed in a public place while you were intoxicated, it will be a condition of your bail that you attend a drug and alcohol assessment and referral course. You should get legal advice.
If you break a condition of your bail you are breaking the law and you should get legal advice immediately.
What is a surety?
The court may demand a surety in your bail conditions. A surety is a person who agrees to forfeit a sum of money or property if you do not show up to court when required.
A person can only provide surety for you if they:
- are at least 18 years of age
- have not been convicted of an indictable offence
- are not insolvent
- have decision-making capacity
- are not under an involuntary treatment order
- are not detained or likely to be detained in an authorised mental health service under the Mental Health Act 2000
- are not under a forensic order
- have not been and are not likely to be charged with an offence
- have money or property equal to or more than the amount of bail.
A person can only offer money or property as surety if it belongs to them.
If a person owns property, they can only provide surety for the amount they actually own. If there is still a mortgage, the surety can only cover the amount the person has paid off.
If you fail to appear in court or break a bail condition attached to the surety, then the surety will have to pay the amount they put up for you.
If you are considering providing a surety for someone, you should get legal advice.
I didn't go to court on the date in my bail undertaking, what can I do?
If you know you have missed your court date, talk to a lawyer and get legal advice immediately. There may be a good reason and you may be able to explain this to the court. But you must do this as soon as you can. Even if you were sick on the court date and you have a medical certificate, you have to go to court as soon as you are well and explain. If you do nothing, you will be in more trouble.
If you are unsure about your bail, or your bail conditions, talk to a lawyer and get legal advice as soon as you can.
I need to change my bail conditions, how do I do that?
You will need to go back to the court which granted you bail and explain to the court why the conditions need to be changed. You can do this at your next court date, or if it is urgent, you can contact the court to see if they can bring your matter forward.
It is important to remember that, if you have multiple charges, you may have bail to more than one court, for example to the magistrates court and the district court. Any changes you want to make have to be made in both courts.
I have received a notice saying that my charges have been committed to the district/Supreme Court. Is my bail still the same?
Your bail is now a promise to appear in the district or Supreme Court, rather than the magistrates court. It is very important that you continue to comply with your bail conditions and let the court know if you need to change your address. All the notices from the district or Supreme Court will be sent to your address. If you do not let the court know about changes in your address and you do not receive notices which require you to attend court, you may end up having a warrant issued for your arrest.