Bail 

Bail is the release of an accused person pending the determination of the charge. It sits directly on the presumption of innocence: a person not yet convicted should not ordinarily be held in custody. But the presumption is not absolute, and every bail statute in Australia balances it against risks the release may create.

The law is entirely statutory and it is not uniform. The structure below is common to most jurisdictions, but the categories, the language and the restrictions differ, and the applicable Bail Act must be read rather than assumed.

The starting position

Most jurisdictions begin from a presumption in favour of release, expressed either as a right to bail for minor offences or as a general entitlement subject to the decision-maker's assessment of risk. For the majority of offences, the question is not whether the accused deserves bail but whether release would create a risk the law regards as unacceptable.

The unacceptable-risk test

The central inquiry, however it is worded, asks whether there is an unacceptable risk that the accused if released would:

• fail to appear at the next court date;
• commit a further offence while at liberty;
• endanger the safety of a victim, a witness or the community; or
• interfere with witnesses or otherwise obstruct the course of justice.

In assessing those risks the decision-maker considers the nature and seriousness of the offence, the strength of the prosecution case, the accused's criminal history and history of compliance with court orders, their ties to the community — employment, family, accommodation — and the likely delay before trial. Delay is significant: a long period on remand for an offence unlikely to attract a custodial sentence weighs heavily in favour of release.

Crucially, the question is whether the risk can be reduced to an acceptable level by conditions. A risk that appears unacceptable unconditioned may become acceptable with a surety, a reporting requirement or a residential condition.

Show cause and exceptional circumstances

For defined categories of offence — serious violence, serious drug offences, offending while already on bail, and in several jurisdictions offences involving family violence — the statutes reverse the starting position. The accused must show cause why detention is not justified before the ordinary risk assessment is reached, or in the most serious cases must establish exceptional circumstances.

These are threshold requirements, not a different risk test. Once cause is shown, the decision-maker returns to the unacceptable-risk analysis.

Conditions

Conditions must be no more onerous than necessary to address the identified risk. Common forms include reporting to a police station, residence at a specified address, a curfew, surrender of a passport, a non-association or exclusion condition, and a surety or security deposited by another person. A condition that the accused cannot realistically meet — a surety beyond their means — operates as a refusal of bail and should be identified as such.

Breach, and further applications

Breach of a bail condition is generally an offence in its own right and exposes the accused to arrest and revocation. Failing to appear attracts a separate charge and forfeiture of any security.

Most statutes restrict repeat applications to the same court: a fresh application ordinarily requires new facts or a material change of circumstances, such as the emergence of a suitable surety, a substantial change in the strength of the case, or delay that has become excessive. A refusal may also be reviewed by a higher court.

Who decides, and when

Bail decisions are made at several points, and the decision-maker differs:

• Police bail, granted by a senior officer at the station after charge. It is the first and most common decision.
• Court bail, on the first mention and at any later stage. A court may grant bail where police have refused it.
• Supreme Court bail, which in most jurisdictions may be sought where a lower court has refused, and which is required for certain serious offences.
• Bail pending appeal, after conviction, where the test is more demanding because the presumption of innocence no longer applies and the applicant must usually show exceptional circumstances.

Evidence and procedure

A bail application is not a trial. The rules of evidence generally do not apply, and the court may act on material that would be inadmissible at trial — police facts sheets, criminal histories, intelligence, and untested assertions from both sides.

That has two consequences worth stating. First, the strength of the prosecution case is assessed on the material as it stands, not tested; a weak case is a relevant factor but the court will not conduct a preliminary trial. Second, anything the applicant says in support may be used, so applicants are generally advised not to give evidence about the offence itself.

The court may inform itself as it sees fit, and may receive submissions from the prosecution about risk and from the applicant about proposed conditions and sureties.

Victims and vulnerable groups

Most bail statutes require the decision-maker to consider the need to protect any victim and any person against whom the applicant is alleged to have used violence, and several require that a victim's views on conditions be sought where a protection order is in place.

Several statutes also require specific consideration of:

• an Aboriginal or Torres Strait Islander applicant's cultural background, ties to family and place, and any issue arising from that background relevant to bail — a response to over-representation in remand populations;
• a child applicant, for whom detention is a last resort and the period of any remand must be as short as possible; and
• an applicant with a cognitive or mental health impairment, where conditions may need to accommodate treatment.

Remand

Refusal of bail means remand in custody. Remand is not a sentence, and time on remand is ordinarily declared and counted toward any sentence eventually imposed.

Its practical consequences are significant and often decisive in bail argument: a remanded accused faces greater difficulty preparing a defence, may lose employment and housing, and — where the likely sentence is short or non-custodial — may serve longer on remand than the sentence itself would have required. That last possibility is an express consideration in several statutes.

Applying this in a problem question

1. Identify the jurisdiction and the applicable Bail Act before applying any test.
2. Establish whether the offence falls into a show-cause or exceptional-circumstances category, and deal with that threshold first.
3. Work through each limb of the unacceptable-risk test, applying the facts rather than listing the limbs.
4. Ask expressly whether conditions could reduce the risk to an acceptable level, and propose ones that address the identified risk.
5. If bail has been refused before, identify what has changed.

Self-check

• Have I read the applicable Bail Act rather than assuming a uniform national test?
• Have I dealt with any show-cause threshold before turning to risk?
• Have I asked whether conditions could answer the risk, rather than treating it as binary?
• Have I checked whether a further application requires changed circumstances?