Applying for bail can be one of the most stressful aspects of being charged with a criminal offence. Accordingly, it is important that any application for bail be treated seriously. When you are charged (or about to be charged) steps should be taken to obtain urgent advice and representation from an experienced criminal defence lawyer.
As a criminal defence barrister, the most common questions that I am confronted with when advising on the merits of making a bail application are:
- What is the process for making an application for bail?
- Am I a Schedule 2 bail applicant? What is a Schedule 2 bail applicant?
- If I am refused bail, can I appeal the decision?
Making an application for bail in the Magistrates Court
The law as it applies to the jurisdiction and discretion to grant bail in Western Australia is governed by the Bail Act 1982 (WA). Schedule 1, Part C, Clause 1 of the Bail Act 1982 (WA) provides that:
[T]he grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant —
(a) Whether, if the accused is not kept in custody, he may —
(i) fail to appear in court in accordance with his bail undertaking; or
commit an offence; or
(ii) endanger the safety, welfare, or property of any person; or
(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b) whether the accused needs to be held in custody for his own protection;
(c) whether the prosecutor has put forward grounds for opposing the grant of bail;
(d) whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e) whether there is any condition which could reasonably be imposed under Part D which would —
(i) sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii) obviate the need referred to in paragraph (b); or
(iii) remove the grounds for opposition referred to in paragraph (c);
(f) where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
In deciding whether to grant bail, judicial officers will often be guided in the exercise of their discretion with regard to (but not limited to) the following:
(a) Whether the applicant has a prior history of breaching bail conditions;
(b) Whether there is a risk that the applicant may commit further offences whilst on bail. This will often be inferred by considering whether the applicant is on bail for other offences, and similarly, the length and seriousness of the applicant’s criminal record;
(c) The seriousness of the offences alleged, the strength of the case against the applicant and the likelihood of a lengthy term of imprisonment if the applicant is found guilty of the offences that are the subject of the application;
(d) The extent to which the prosecution can demonstrate that the applicant is a potential flight risk, in that should bail be granted, there is a possibility that the applicant might abscond;
(e) Any personal circumstances of an applicant, such as (but not limited to):
i. Whether the applicant has employment or has the capacity to obtain employment if released on bail;
ii. Whether the applicant has any dependents such as a partner, children, or others who are reliant on them; or
iii. Whether the applicant has a strong defence to the charges that are the subject of the application for bail.
"Schedule 2" Bail Applications
One of the most common questions from Client's seeking bail is, "Am I Schedule 2?" A person who is caught within the Schedule 2 of the Bail Act is a person who: a) has previously been charged with a serious offence as set out in Schedule 2 of the Bail Act; and b) is alleged to have committed another serious offence whilst on bail for that earlier offence.
Some of the offences that are defined as serious offences in Schedule 2 of the Bail Act are:
- Possession of a prohibited drug with intent to sell or supply;
- Sale, supply or manufacture of a prohibited drug;
- Assault occasioning bodily harm;
- Grievous bodily harm;
- Criminal Damage by Fire;
- Deprivation of Liberty;
- Sexual Penetration without Consent; and
- Breaching a Police Order, Protective Bail Condition or Violence Restraining Order.
In explaining how a person might be caught within the confines of Schedule 2 of the Bail Act, the following example is useful:
Person X is charged that on 1 January 2016, he breached a violence restraining order. Following the Police decision to charge, he is brought before a Magistrate and bail is granted. On 16 June 2016, person X is charged with a further breach of a violence restraining order, bringing him within Schedule 2 of the Bail Act.
Once caught within Schedule 2 of the Bail Act, a person who wishes to apply for bail must demonstrate that there are exceptional circumstances that would enliven the jurisdiction of the Court to consider an application for bail. Demonstrating that there are exceptional circumstances is a heavy burden for an applicant to establish. If you or an associate are caught within Schedule 2, proper legal advice should set out whether: (a) the circumstances relied upon in support of bail are exceptional; and (b) the types of supporting documents or materials that will be of importance to the success of any application.
Ultimately, whether a circumstance is "exceptional" will vary depending upon the circumstances of the case. By way of examples, it can include (but is not limited to):
- Where there is likely to be a significant delay between the date of charge and the trial. For instance, a delay of 18 months or greater has been found to be an "exceptional" delay;
- Whether there are any dependents who are likely to be unduly affected by the applicant being remanded into custody and whether those persons are solely reliant on the applicant; or
- Whether the applicant can demonstrate a strong defence case.
If the Court is satisfied that exceptional circumstances have been demonstrated, the Court is then required to have regard to all of the factors set out pursuant to Schedule 1, Part C, Clause 1 of the Bail Act 1982 (WA), which has been referred to above.
Appealing a decision to refuse bail
People often want to know what their options are when an application for bail is refused and whether they can either re-apply or appeal the decision to refuse bail. There are two options available to a person whose bail has been refused by a Magistrate:
- Wait until there has been a material change in circumstances before re-applying for bail in the Magistrates Court; or
- Make an application for re-hearing of the bail application in the Supreme Court of Western Australia.
Re-Applying for Bail in the Magistrates Court - "Change in Circumstances"
To simply re-apply for bail in the Magistrates Court, an applicant will have to first satisfy the Court that "new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance." Whether that test has been met will depend upon: (a) What material was before the Court on the first occasion that bail was refused and; (b) What material has been put before the Court in support of a finding that new facts have been discovered or that circumstances have changed since the previous occasion.
By way of example of a change of circumstances could be:
Person X applies for bail on 21 November 2017. At the hearing, bail is opposed by the Prosecutor on the basis that the person has a serious drug addiction, and in light of that addiction, the Court could not be satisfied that the applicant would not commit further offences. Absent a confirmation that Person X has a bed at a rehabilitation facility, bail is refused. On 3 December 2017, Person X re-applies for bail in the Magistrates Court. His lawyer hands up a letter from a rehabilitation facility confirming that a bed is available to Person X should he be released on bail.
This is just one very specific example of what might be argued as being a "change in circumstances" justifying a further application to the Magistrates Court for bail. Like with any bail application, it is important that you obtain advice from a criminal defence lawyer as to (a) your legal position in relation to bail; (b) the procedural matters of importance in relation to bail; and (c) what documents and material in support of bail might be required.
Applying for Bail in the Supreme Court
The alternative to re-applying for bail in the Magistrates Court after an initial refusal by a Magistrate to grant bail is to make a further application for re-hearing of an application in the Supreme Court of Western Australia. A bail hearing in the Supreme Court is dealt with by way of hearing de novo, which means that the hearing is conducted afresh. In order to make an application for bail in the Supreme Court following an initial refusal of bail by a Magistrate, you will need to:
- File a written application with the Supreme Court together with an affidavit in support of bail; and
- Provide the transcript of any previous bail application heard in the Magistrates Court (where bail had been refused).
Should you wish to make an application for bail in the Supreme Court, it is important (and will always be beneficial) to obtain proper legal representation to both prepare your application and argue it on your behalf at a hearing.