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Bail Me Out! How To Get Bail and Vary Bail Agreements

What is bail?

Bail serves as an agreement between a party charged with a pending criminal offence and the court. The agreement stands as a commitment, allowing the accused to leave custody provided they attend all court proceedings and comply with the restrictive conditions imposed. Should the conditions of the agreement be violated, the charged person stands to forfeit a lump sum of money. Furthermore, they potentially face the revocation of the agreement, resulting in them returning to custody awaiting their proceedings.

A bail agreement can come with a variety of restrictive provisions such as requiring the defendant to report to a police station on a regular basis or being subject to home detention. These restrictions vary and are imposed depending on what is regarded as necessary. If accepted, the bail agreement persists until the matter is resolved or until it is revoked by the court for breach of a condition.

Who can grant bail?

Following an arrest, a person charged with an offence can make a bail application to any police officer that is of the rank of sergeant or higher.  Alternatively, a submission can be made to the ‘responsible’ officer (the officer that has been specifically designated the role of being in charge of the station or the officer charged with taking people into custody [s 5(1)(e)(iii)-(iv) Bail Act 1985 (SA)]).

If unsuccessful in a police application, an accused party can seek the court to grant bail. Whenever appearing before court, the Magistrate or Judge has the authority to grant bail should they deem it appropriate. For more serious indictable matters, an applicant may need to apply to a District Court Judge rather than a Magistrate.

Any of these bail authorities are able to vary or revoke conditions of the agreement should they feel it necessary and appropriate. This may occur of their own volition or via an application submitted by the defendant.

How can I get bail?

For a party seeking a bail agreement following their arrest, an application can be made to the appropriate police officer. The arresting officer is required to satisfactorily inform the arrested party as to their rights regarding bail as soon as reasonably practicable. Furthermore, they must provide a written statement as to how to apply for bail as well as the form to do so as per s 13 Bail Act 1985 (SA). Where necessary, the Police are also required to offer all reasonable assistance to a party applying for bail (s 8(2)(a) Bail Act 1985 (SA)).

If refused by the Police, an accused party can make a submission before a Magistrate or Judge to seek bail. The prescribed form is the same as that when applying to the police and the appearance before the Magistrate must take place within 24 hours of the arrest. If unable to appear before a Magistrate within 24 hours, a telephone call giving the accused the opportunity to discuss their dissatisfaction with the previous bail refusal can be made available. Should the agreement be granted, similar restrictions and conditions to police bail apply. If undecided, a Magistrate can request additional documentation such as a bail assessment or psychiatric report to further inform their decision.

Factors affecting Bail?

While there is a presumption of bail as per s 10 of the Bail Act 1985 (SA), bail can be refused provided it is deemed necessary. A variety of factors can influence this decision, such as the likelihood to reoffend or interfere with witnesses. Furthermore, circumstances including the accused being a flight risk, their employment or financial responsibilities and prior breaches of bail can all be given consideration.

Certain offences also preclude one from bail due to their severity and nature. Under s 10A of the Bail Act 1985 (SA) the statutory presumption of bail can be rebutted under certain circumstances. In these circumstances the onus falls upon the applicant to demonstrate their remarkable circumstances as to why bail should be granted. Some of the offences that fall under s 10A include matters such as serious firearm or organised crime offences.

 
How can we help?

If denied a Police bail agreement, you may wish to seek additional legal assistance. At Georgiadis Lawyers our criminal law team has extensive knowledge in dealing with such matters and will do everything possible to achieve a successful bail application. This includes a full application to the court on your behalf as well as the processing of all necessary documents. With our fixed fees and acceptance of legal aid, we provide an affordable and accessible service for all, as at Georgiadis Lawyers we seek success for every client.

If you need more information or if you need assistance or advice on how to proceed please call us on 08 8210 5400 or email lawyers@georgiadis.com.au.

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