South Australian Current Regulations South Australian Current RegulationsSchedule 2—Section 13 statement
Form—Section 13 statement
How to apply for release on bail
1—General
The law of bail in South Australia is contained in the Bail Act 1985 .
This pamphlet is designed to help you decide whether you are eligible to apply
for bail, and to assist you in making such an application.
It will also assist people who want to "stand bail" (that is, be a guarantor)
for you.
If there are things you do not understand, ask the police, telephone your
lawyer, or ask the magistrate or the person who witnesses your bail documents
for advice.
If you do not have a lawyer and you want help, you can ask to see the duty
solicitor from the Legal Services Commission or telephone the Legal Services
Commission during office hours. (Duty solicitors visit the larger courthouses
during office hours—ask the police to contact the duty solicitor for
you.)
2—What is a bail agreement?
A bail agreement is an agreement between the Crown and a person requiring the
person to be at his or her court hearings and to obey any special conditions
set by the court during the period of the operation of the bail agreement in
return for the person's release from custody on bail.
3—Can I apply for bail?
Adults
If you are aged 18 years or more, you can apply for bail in any of the
following circumstances:
• you are
appearing before a court in answer to a summons and you might be remanded in
custody; or
• you are in
custody on a charge of an offence after being arrested by the police; or
• you have been
convicted of an offence but have not yet been sentenced; or
• you have been
convicted of an offence and sentenced, but you have not exhausted all rights
of appeal or review and you intend to appeal; or
• you are
appearing in court for allegedly failing to observe a condition of a bond; or
• you have been
arrested on a warrant and you are appearing, or are to appear, before a court
as a witness;
• you have been
arrested on a warrant issued by a court—
— for failing to
appear before that court on charges; or
— for breach of
a bond,
and the court has authorised the police officer in charge of the police
station, or a person specified on the warrant, to grant bail on your arrest.
However, you cannot apply for bail after having been arrested if you are being
detained under the Summary Offences Act 1953 for a purpose related to the
investigation of an offence until the end of that detention.
People under the age of 18 years
If you are under the age of 18 years, you can apply for bail if you have
been arrested on suspicion of having committed an offence and you have been
taken into police custody.
4—I think I qualify for bail
To whom do I apply for bail?
There are various bail authorities under the Bail Act 1985 that can hear
and decide bail applications.
The following is a list of bail authorities for the purposes of the Act:
• the Supreme
Court;
• the District
Court;
• the
Magistrates Court;
• the Youth
Court;
• any court
before which you must appear in relation to the matter;
• a justice;
• a sergeant of
police;
• a police
officer of a rank higher than sergeant;
• the
responsible officer for a police station;
• the person
specified on the warrant for your arrest.
Depending on your circumstances, you can apply to one of these bail
authorities. You should check with a police officer, your lawyer or a court
officer as to whom you must apply for bail.
How do I apply for bail?
Your application for bail must be in writing.
Application forms are available from police stations, gaols and courts. You
must answer all questions.
If you were under the age of 18 years at the time you allegedly committed
the offence for which you are arrested, your parent, guardian or custodian may
assist you to make your application.
If there is something you do not understand, ask a police officer, your lawyer
or a court officer to explain.
5—On what grounds will bail be granted or refused?
Whether or not you are granted bail will depend on many factors,
including—
• the
seriousness and nature of the alleged offence;
• the likelihood
that you—
— may not attend
court when required; or
— may offend
again; or
— may interfere
with evidence or a witness;
• any need you,
or an alleged victim, may have for physical protection;
• medical
matters;
• whether you
have previously breached bail conditions;
• any other
relevant matter.
For some applicants ( prescribed applicants under section 10A of the
Bail Act 1985 ) there is a presumption against granting bail and the
applicant must establish the existence of special circumstances justifying
release on bail.
6—What can I do if I am refused bail?
If your application for bail is unsuccessful, you can ask for that decision to
be reviewed. (A review is a type of appeal.)
If the bail authority is a police officer or a justice, the review will be
carried out by a magistrate, who can be contacted (by telephone if necessary)
by the person who made the original decision. If the police officer who made
the decision is not immediately available to contact a magistrate, contact
must be made by another police officer of or above the rank of sergeant or the
responsible officer for the police station.
Once the magistrate has been told the facts of the case and the reason why
your application was refused, you have the right to put your case. The
magistrate must reach a decision straight away.
If the bail authority is a magistrate or a District Court judge, the review
must be carried out by a Supreme Court judge.
If you are refused bail, you will be given a copy of the written reasons for
that refusal.
You may apply for bail on a later occasion.
7—What is meant by a bail agreement?
When you enter into a bail agreement, you are agreeing to attend a particular
court on the next date and at the time fixed for your case as well as on every
other occasion when your matter is listed and, unless directed otherwise in
the agreement, to be present in court each time your matter is listed until it
is finished.
You are also agreeing to comply with all of the conditions set out in your
bail agreement. Failure to obey any condition of a bail agreement is a
criminal offence and can, in some cases, be punished by up to 2 years
gaol or a fine of up to $10 000.
In addition, any money promised to the Crown as part of your bail agreement
may have to be paid and, if necessary, collected in the same way as a fine.
8—What are conditions of bail?
Conditions of bail are the rules that you must obey in return for your
freedom.
In all cases, except where a bail authority allows you to live interstate or
gives you permission to travel interstate for a specific reason, you cannot
leave South Australia while on bail.
It is a condition of bail that you must not possess a firearm, ammunition, or
any part of a firearm, and that you submit to such tests (including testing
without notice) for gunshot residue, as required by the bail authority. These
two conditions apply to the grant of every bail, and can only be varied or
revoked if the bail authority is satisfied that there are cogent reasons to do
so and the possession of a firearm, ammunition or part of a firearm does not
represent an undue risk to the safety of the public. The bail authority must
make a written record of the reasons for its decision to vary or revoke these
conditions. Once you have been granted bail, the bail authority may direct you
to surrender any firearms or ammunition you own or possess.
Other restrictions can be imposed on you, including, for example, not seeing
or contacting certain people, staying away from certain places, agreeing to
live at a certain address, being under the supervision of a community
corrections officer, submitting to electronic monitoring such as by wearing a
GPS tracking device, reporting to the police on a regular basis or giving up
your passport. Conditions are set by the court to suit individual cases.
In certain circumstances there are mandatory conditions of bail that must be
imposed:
• If you are
determined to be a serious and organised crime suspect you must reside, with
electronic monitoring, at a specified address and may only leave that address
in certain limited situations, people that you may contact will be restricted
and you will only be able to possess and use specified communication devices;
• If you are
charged with certain offences where the victim is a child, there will be a
condition that you agree not to engage in, or apply for, child-related work.
You can ask a bail authority to vary the conditions imposed on you under the
bail agreement.
9—What is a guarantor and what does a guarantor have to do?
Your guarantor is a person who enters into a guarantee that you will, if freed
on bail, obey all the conditions of bail set by the bail authority (see
clause 8).
If you do not comply with a condition of your bail agreement and you breach a
condition, or if the guarantor knows that you have breached a condition or
that you are likely to breach a condition, the guarantor must tell the police
what you have done or are likely to do. If the guarantor does not do so, the
guarantor can be liable to a fine of up to $1 250.
In addition to the possibility of having to pay a fine, if you breach a
condition of your bail agreement, your guarantor may have to pay to the Crown
the sum of money that the guarantor has undertaken to pay in the guarantee.
10—Guarantor may apply to have guarantee varied or revoked
Your guarantor may, at any time, apply to a bail authority to have the terms
of the guarantee varied or the guarantee revoked. This could happen if your
guarantor is afraid you may abscond or otherwise not comply with the
conditions of your bail agreement.