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BAIL ACT 1977 - SECT 4

Accused held in custody entitled to bail

    (1)     Any person accused of an offence and being held in custody in relation to that offence shall be granted bail—

S. 4(1)(a) amended by No. 51/1989
s. 142(c).

        (a)     if it is not practicable to bring him before a bail justice or the Magistrates' Court within 24 hours after he is taken into custody;

        (b)     during any postponement of the hearing of a charge for the offence or whilst he is awaiting trial; or

S. 4(1)(c) amended by No. 68/2009 s. 97(Sch. item 11.1).

        (c)     where his case is adjourned by a court for inquiries or a report or whilst he is awaiting sentence except where the court is satisfied that it would not be desirable in the public interest to release the accused pending completion of the inquiries or receipt of the report or pending sentence.

    (2)     Notwithstanding the generality of the provisions of subsection (1) a court shall refuse bail—

S. 4(2)(a) substituted by No. 10084
s. 18(1)(a).

        (a)     in the case of a person charged with treason or murder except in accordance with section 13;

S. 4(2)(aa) inserted by No. 89/1986
s. 4(c), amended by No. 48/1997 s. 48(b).

        (aa)     in the case of a person charged with—

S. 4(2)(aa)(i) amended by No. 48/1997 s. 48(a)(i)(ii), substituted by No. 61/2001 s. 13(1).

              (i)     an offence under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or an offence of conspiring to commit any of those offences under section 79(1) of that Act; or

S. 4(2)(aa)(ia) inserted by No. 35/2002 s. 28(Sch. item 1.1).

        (ia)     an offence of trafficking in relation to a commercial quantity of a drug of dependence under section 71 of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 or an offence of cultivating a narcotic plant under section 72 of that Act in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that narcotic plant or an offence of conspiring to commit either of those offences under section 79(1) of that Act; or

S. 4(2)(aa)(ii) substituted by No. 64/1998 s. 5, amended by No. 93/2005 s. 13(1)(a)(b).

              (ii)     an offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth as in force immediately before the commencement of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 of the Commonwealth in circumstances where the offence is committed in relation to narcotic goods within the meaning of that Act in respect of a quantity that is not less than the commercial quantity (as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 ) applicable to the drug of dependence constituted by those narcotic goods; or

New s. 4(2) (aa)(iii) inserted by No. 93/2005 s. 13(2).

              (iii)     an offence under section 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the Commonwealth in circumstances where the offence is committed in relation to a substance in respect of a quantity that is not less than the commercial quantity (as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 ) applicable to the drug of dependence as defined in that Act constituted by that substance—

S. 4(2)(aa)
(iii)–(v) repealed by No. 48/1997 s. 48(b).

    *     *     *     *     *

unless the court is satisfied that exceptional circumstances exist which justify the grant of bail;

S. 4(2)(b) amended by No. 68/2009 s. 97(Sch. item 11.1), repealed by No. 70/2010 s. 7(1), new s. 4(2)(b) inserted by No. 1/2016 s. 4.

        (b)     in the case of a person charged with an offence under section 4B(1) or 21W of the Terrorism (Community Protection) Act 2003 unless the court is satisfied that exceptional circumstances exist which justify the grant of bail;

S. 4(2)(c) repealed by No. 20/2004 s. 10.

    *     *     *     *     *

        (d)     if the court is satisfied—

S. 4(2)(d)(i) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (i)     that there is an unacceptable risk that the accused if released on bail would—

fail to surrender himself into custody in answer to his bail;

commit an offence whilst on bail;

endanger the safety or welfare of members of the public; or

interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;

S. 4(2)(d)(ii) amended by No. 10087
s. 3(1)(Sch. 1 item 4), repealed by No. 16/1987
s. 12(Sch. 2 item 3(a)). [1]

    *     *     *     *     *

              (iii)     that it has not been practicable to obtain sufficient information for the purpose of deciding any question referred to in this subsection for want of time since the institution of the proceedings against him.

S. 4(2A) inserted by No. 57/1989
s. 4(1)(a), amended by Nos 68/2009 s. 97(Sch. item 11.1), 70/2010 s. 7(2).

    (2A)     A court is not required to refuse bail in the case of an accused who is serving a sentence of imprisonment for some other cause but any bail granted must be subject to the condition that the person will not be released on bail before he or she is entitled to be released under a parole order made, or which may be made, in respect of him or her;

    (3)     In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say—

        (a)     the nature and seriousness of the offence;

S. 4(3)(b) amended by No. 68/2009 s. 97(Sch. item 11.1).

        (b)     the character, antecedents, associations, home environment and background of the accused;

S. 4(3)(ba) inserted by No. 1/2016 s. 5.

        (ba)     whether the accused has expressed publicly support for—

              (i)     a terrorist act or a terrorist organisation; or

              (ii)     the provision of resources to a terrorist organisation;

S. 4(3)(c) amended by Nos 84/1997
s. 4(a), 68/2009 s. 97(Sch. item 11.1).

        (c)     the history of any previous grants of bail to the accused;

S. 4(3)(d) amended by No. 68/2009 s. 97(Sch. item 11.1).

        (d)     the strength of the evidence against the accused;

S. 4(3)(e) inserted by No. 84/1997
s. 4(b), amended by No. 70/2010 s. 7(3)(a).

        (e)     the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;

S. 4(3)(f) inserted by No. 70/2010 s. 7(3)(b).

        (f)     any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.

S. 4(4) amended by Nos 9158 s. 2, 68/2009 s. 97(Sch. item 11.1).

    (4)     Where the accused is charged—

        (a)     with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence;

S. 4(4)(ab) inserted by No. 1/2016 s. 7.

        (ab)     with a serious offence and the accused, as an adult, has within the preceding 5 years been convicted or found guilty of an offence against section 30(1) ; or

S. 4(4)(b) repealed by No. 57/1989
s. 4(1)(b), new s. 4(4)(b) inserted by No. 95/1994
s. 7.

        (b)     with an offence against section 21A(1) of the Crimes Act 1958 (stalking) and—

S. 4(4)(b)(i) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (i)     the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which he or she used or threatened to use violence against any person; or

S. 4(4)(b)(ii) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (ii)     the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom he or she is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence; or

S. 4(4)(ba) inserted by No. 95/1994
s. 7, amended by Nos 52/2008 s. 233, 68/2009 s. 97(Sch. item 11.1), 83/2012 s. 31(1).

        (ba)     with an offence against section 37, 37A, 123, 123A or 125A of the Family Violence Protection Act 2008 of contravening a family violence intervention order or family violence safety notice (as the case requires) in the course of committing which the accused is alleged to have used or threatened to use violence and—

S. 4(4)(ba)(i) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (i)     the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or

S. 4(4)(ba)(ii) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (ii)     the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence; or

S. 4(4)(bb) inserted by No. 68/2008 s. 63, amended by Nos 68/2009 s. 97(Sch. item 11.1), 53/2010 s. 221(Sch. item 1).

        (bb)     with an offence against section 100 of the Personal Safety Intervention Orders Act 2010 of contravening an order in the course of committing which the accused is alleged to have used or threatened to use violence and—

S. 4(4)(bb)(i) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (i)     the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or

S. 4(4)(bb)(ii) amended by No. 68/2009 s. 97(Sch. item 11.1).

              (ii)     the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence; or

S. 4(4)(bc) inserted by No. 50/2016 s. 7(1).

        (bc)     with an offence of aggravated burglary under section 77 of the Crimes Act 1958 , an offence of home invasion under section 77A of that Act, an offence of aggravated home invasion under section 77B of that Act or an offence of aggravated carjacking under section 79A of that Act; or

S. 4(4)(c) amended by Nos 9690
s. 2(a), 68/2009 s. 97(Sch. item 11.1), 63/2014 s. 7(1), 50/2016 s. 7(2).

        (c)     with any indictable offence in the course of committing which the accused or any person who is involved in the commission of the offence is alleged to have used or threatened to use a firearm, offensive weapon, or explosive within the meaning of section 77 of the Crimes Act 1958 ; or

Note to s. 4(4)(c) inserted by No. 63/2014 s. 7(2).

Note

Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in commission of offences.

S. 4(4)(caa) inserted by No. 10/2003 s. 10.

        (caa)     with an offence of arson causing death under section 197A of the Crimes Act 1958 ; or

S. 4(4)(ca) inserted by No. 9690
s. 2(b), substituted by No. 10002
s. 8(3), amended by No. 89/1986
s. 4(d)(i)(ii), substituted by No. 61/2001 s. 13(2).

        (ca)     with an offence under section 71AB, 71AC or 72B of the Drugs, Poisons and Controlled Substances Act 1981 or an offence of conspiring to commit any of those offences under section 79(1) of that Act;

S. 4(4)(cab) inserted by No. 35/2002 s. 28(Sch. item 1.2).

        (cab)     subject to subsection (2)(aa), with an offence of trafficking in a drug of dependence under section 71 of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 or an offence of cultivating a narcotic plant under section 72 of that Act or an offence of conspiring to commit either of those offences under section 79(1) of that Act;

S. 4(4)(cb) inserted by No. 89/1986
s. 4(e), amended by No. 93/2005 s. 13(3).

        (cb)     subject to subsection (2)(aa), with an offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth, as in force immediately before the commencement of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 of the Commonwealth, in relation to a commercial or trafficable quantity of narcotic goods within the meaning of that Act; or

S. 4(4)(cc) inserted by No. 93/2005 s. 13(4).

        (cc)     subject to subsection (2)(aa), with an offence under section 307.1, 307.2, 307.5, 307.6, 307.8 or 307.9 of the Criminal Code of the Commonwealth; or

S. 4(4)(cd) inserted by No. 52/2015 s. 40.

        (cd)     with an indictable offence that is alleged to have been committed while the accused is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 ; or

S. 4(4)(ce) inserted by No. 52/2015 s. 40.

        (ce)     with an indictable offence, and the accused, at any time during the proceeding with respect to bail, is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 ; or

        (d)     with an offence against this Act—

the court shall refuse bail unless the accused shows cause why his detention in custody is not justified and in any such case where the court grants bail the court

S. 4(4)(d)(i) amended by Nos 16/1986
s. 30, 19/1989 s. 16(Sch. item 7.2), 51/1989
s. 142(d).

              (i)     if constituted by a judge or magistrate, shall include in the order a statement of reasons for making the order; or

              (ii)     in any other case, shall, as prescribed by regulations, record and transmit a statement of reasons for making the order.

    (5)     In granting bail a court may impose conditions in accordance with section 5.

S. 5
amended by Nos 10087 s. 3(1)(Sch. 1 item 4), 16/1987 s. 12(Sch. 2 item 3(b)) [2] , 23/1994 s. 118(Sch. 1 item 4.1(a)(b)), 97/2005 s. 182(Sch. 4 item 4), 68/2009 s. 97(Sch. items 11.1, 11.3, 11.4), 13/2010 s. 51(Sch. item 7), substituted by No. 70/2010 s. 8.



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