Western Australian Current Acts Western Australian Current Acts[s. 13, 17]
[Heading inserted: No. 6 of 2008 s. 41(1).]
Part A — Jurisdiction relating to bail
[Heading inserted: No. 6 of 2008 s. 41(2)(a).]
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First Column Appearances in court |
Second Column By whom bail may be granted or (where applicable) dispensed with | ||
|---|---|---|---|
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[Heading amended: No. 6 of 2008 s. 41(2)(b) and (c).] | ||
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(1) |
The initial appearance in a court of summary jurisdiction or the
Children’s Court by an accused in, or in connection with, proceedings
for an offence. |
In any case — (a) a justice; or (b) an authorised police officer; and in addition, in the case of a child, an authorised community services officer.
| |
|
(2) |
The initial appearance in the District Court or the Supreme Court, not being
the initial appearance to which clause 3 applies. |
A judge of the District Court or a judge of the Supreme Court, as the case
requires. | |
| |
[Clause 1 amended: No. 15 of 1988 s. 19; No. 49 of 1988 s. 90(a)(i); No. 59 of
2004 s. 141; No. 84 of 2004 s. 10(1) and 82.] | ||
| |
Appearance in any court or before a judicial officer by an accused after any
adjournment of proceedings for an offence, not being a committal under clause
3. |
The judicial officer who orders the adjournment. | |
| |
[Clause 2 amended: No. 84 of 2004 s. 82.] | ||
|
3. Appearance on committal to Supreme Court or
District Court | |||
| |
The initial appearance by an accused in the Supreme Court or District Court
after he has been committed thereto under any Act to be tried or sentenced or
otherwise dealt with. |
The judicial officer who orders the committal. | |
| |
[Clause 3 amended: No. 84 of 2004 s. 82.] | ||
|
(1) |
Appearance in connection with an application or appeal made under the
Criminal Appeals Act 2004 or with any order made in determining the
application or appeal. |
If the appeal is being determined by a single judge of the Supreme Court, a
single judge of the Supreme Court; If the appeal is being determined by the Court of Appeal, the Court of Appeal
or a single judge of appeal. | |
|
(2) |
Appearance in connection with a rehearing of proceedings ordered under
section 28 of the Children’s Court of Western Australia Act 1988 . |
The Children’s Court. | |
|
(3) |
Appearance in connection with the reconsideration of an order under section 40
of the Children’s Court of Western Australia Act 1988 . |
The Children’s Court constituted by the President. | |
| |
[Clause 4 inserted: No. 84 of 2004 s. 10(2).] | ||
| |
Appearance in a court for any other purpose or following any other occurrence
prescribed by regulations under this Act. |
The judicial or other officer prescribed by such regulations. | |
| |
Any appearance in a court not otherwise provided for in this Part or by
regulations under this Act. |
The judicial officer who, or court which, orders the appearance. | |
7 . Term used: proceedings for an offence
In this Part, unless
the contrary intention appears —
proceedings for an offence in clause 2 (but not in
clause 1) includes any of the following proceedings relating to that offence
—
(a)
appeal proceedings; and
(b)
proceedings on a writ of habeas corpus ; and
(c)
proceedings on the re-appearance of an offender under section 50 of the
Sentencing Act 1995 .
[Clause 7 inserted: No. 84 of 2004 s. 10(3).]
Part B — Cessation of powers relating to bail
[Heading inserted: No. 6 of 2008 s. 41(3)(a).]
1 . Upon decision by judge, power of other
officers ceases
(1) In this clause
—
judge means a judge of the Supreme Court, the
Children’s Court or the District Court.
(2) After a judge has
granted or refused bail for an appearance by an accused the power to grant
bail for that appearance ceases to be vested in —
(a) any
judicial officer whose jurisdiction is inferior to that of the judge; or
(b) any
authorised officer.
(3) After a judge has
dispensed with the requirement for bail for an appearance by an accused the
power to grant or refuse bail for that appearance ceases to be vested in any
officer referred to in subclause (2)(a) or (b).
[Clause 1 inserted: No. 6 of 2008 s. 41(3)(b).]
1A . Upon decision by Court of Appeal, other
powers cease
After the Court of
Appeal on an appeal under section 15A —
(a) has
granted or refused bail for an appearance by an accused, the power to grant or
refuse bail for that appearance; or
(b) has
dispensed with the requirement for bail for an appearance by an accused, the
power to grant or refuse bail for that appearance,
ceases to be vested in
any judicial officer or in any authorised officer.
[Clause 1A inserted: No. 6 of 2008 s. 41(3)(b).]
2 . Upon decision by judicial officer, his power
and that of his peers ceases
Except where clause 4
applies, the power to grant, refuse or dispense with bail for an appearance by
an accused ceases to be vested in any judicial officer (including a judge of
the Supreme Court) after he, or another judicial officer whose jurisdiction is
co-extensive with his, has granted, refused or dispensed with bail for that
appearance.
[Clause 2 amended: No. 84 of 2004 s. 82; No. 6 of
2008 s. 41(3)(c) and (d).]
3 . Upon refusal of bail for initial appearance,
certain powers cease
(1) After an
authorised officer has refused bail for an initial appearance by an accused,
the power to grant bail for that appearance ceases to be vested in another
authorised officer, but a justice may nevertheless grant bail for that
appearance.
(2) After a justice
has refused bail for an initial appearance by an accused, the power to grant
bail for that appearance ceases to be vested in an authorised officer or
another justice.
[Clause 3 inserted: No. 6 of 2008 s. 41(3)(e).]
4 . Judicial officer’s powers if accused
proves new facts or changed circumstances
Notwithstanding clause
2, where an accused has been refused bail for an appearance or has been
granted bail therefor on terms or conditions with which he is unable or
unwilling to comply, the judicial officer who granted or refused bail or
another judicial officer whose jurisdiction is co-extensive with his has power
to grant bail for that appearance or to vary the terms or conditions of bail
previously granted therefor if the accused makes application and satisfies him
that —
(a) new
facts have been discovered, new circumstances have arisen or the circumstances
have changed since bail was previously granted or refused for that appearance;
or
(b) he
failed to adequately present his case for bail on the previous occasion when
it was considered; or
(c)
where bail was granted subject to a home detention condition, he has, since
the previous occasion when his case for bail was considered, complied with the
home detention condition for a period of one month or more.
[Clause 4 amended: No. 61 of 1990 s. 14; No. 84 of
2004 s. 82.]
Part C — Manner in which jurisdiction to be exercised
[Heading deleted: No. 6 of 2008 s. 41(4)(a).]
In this Part —
child victim , in relation to a discretion to
grant bail, means a person —
(a)
against whom a relevant offence is alleged to have been committed; and
(b) who
is under 18 years of age when the discretion is to be exercised;
family member has the meaning given in the
Restraining Orders Act 1997 section 4(3);
pending offence , in relation to a discretion to
grant bail, means an offence for which the accused is awaiting trial at the
time the discretion is to be exercised, whether or not the discretion arises
in the course of proceedings relating to that offence;
relevant offence , in relation to a discretion to
grant bail, means an offence —
(a) in
connection with which the accused is, at the time the discretion is to be
exercised, in custody awaiting an appearance in court before conviction; and
(b) in
the course of proceedings relating to which the discretion to grant bail
arises.
[Clause 1A inserted: No. 29 of 2022 s. 7.]
1 . Bail before conviction at discretion of court
or judicial officer except for child
Subject to clauses 3A,
3C, 3D, 3E and 3F, the 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
(ii)
commit an offence; or
(iii)
endanger the safety, welfare, or property of any person;
or
(iv)
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.
[Clause 1 amended: No. 14 of 1992 s. 11; No. 45 of
1993 s. 10(2)(a); No. 54 of 1998 s. 8(a) and (b); No. 84 of 2004 s. 82; No. 6
of 2008 s. 41(4)(b); No. 21 of 2017 s. 7; No. 15 of 2019 s. 13(1); No. 30 of
2020 s. 46.]
2 . Child to have qualified right to bail
(1) In this clause
—
responsible person means a parent, relative,
employer or other person who, in the opinion of the judicial officer or
authorised officer, is in a position to both influence the conduct of the
child and provide the child with support and direction.
(2) Subject to
subclause (3), a child accused who is in custody awaiting an appearance in
court before conviction for an offence has a right to be granted bail unless
—
(a) in
the opinion of the judicial officer or authorised officer in whom jurisdiction
is vested —
(i)
one or more of the questions set out in clause 1(a), (b),
(d) and (g) must be answered in the affirmative; and
(ii)
there is no condition which he could reasonably impose
under Part D which would satisfy the relevant provision of clause 1(e);
or
(b)
there is no responsible person willing to enter into an undertaking of the
kind described in subclause (3)(c),
and if the child is
refused bail he shall be dealt with in accordance with section 19(2) of the
Young Offenders Act 1994 .
(3) The right of a
child accused under subclause (2) is subject to —
(a)
clauses 3A, 3C, 3D and 3E; and
[(b) deleted]
(c)
there being imposed as a condition on the grant of bail a requirement that
before the release of the child on bail a responsible person undertakes in
writing in the approved form to ensure that the child complies with any
requirement of his bail undertaking mentioned in section 28(2)(a), (b), (c)
and (d).
(4) Subclauses (2)(b)
and (3)(c) do not apply to a child accused if it appears to the judicial
officer or authorised officer that the accused —
(a) is
over the age of 17 years; and
(b) has
sufficient maturity to live independently without the guidance or control of a
parent or guardian.
(5) For the purposes
of this clause, the provisions of sections 46, 47, 48, 54, 55(2), 60 and
67(2)(a)(iv) apply with all necessary changes as if —
(a)
references in those provisions to a surety and a surety undertaking were
references to a responsible person and to an undertaking referred to in
subclause (3)(c) respectively; and
(b)
section 54(1)(b)(i) read as follows —
(i)
a person who has entered into an undertaking referred to
in clause 2(3)(c) of Part C of Schedule 1 should no longer be regarded as a
responsible person for the purposes of that clause, or is dead;
(6) Where a child
accused is released on bail his right to be at liberty is subject to the
exercise of the powers in section 17A.
[Clause 2 inserted: No. 45 of 1993 s. 10(2)(b);
amended: No. 57 of 1997 s. 21(3)(a); No. 54 of 1998 s. 8(c); No. 34 of 2004
Sch. 2 cl. 3(3); No. 84 of 2004 s. 82; No. 6 of 2008 s. 41(4)(c) and 43(4);
No. 21 of 2017 s. 8; No. 15 of 2019 s. 13(2).]
3 . Matters relevant to cl. 1(a)
In considering whether
an accused may do any of the things mentioned in clause 1(a), the judicial
officer or authorised officer must have regard to the following matters
—
(a) in
relation to each relevant offence — the strength of the evidence against
the accused;
(b) in
relation to each pending offence —
(i)
the nature and seriousness of the offence; and
(ii)
the probable method of dealing with the accused for the
offence, if convicted;
(c) in
relation to each pending offence and each offence of which the accused has
previously been convicted — the conduct of the accused, after the time
or alleged time of the offence, towards —
(i)
any person against whom it was, or was alleged to have
been, committed; and
(ii)
any family member of such a person;
(d) the
character, previous convictions, antecedents, associations, home environment,
background, place of residence, and financial position of the accused;
(e) the
history of any previous grants of bail to the accused;
(f) any
other matter which the officer considers relevant.
[Clause 3 inserted: No. 29 of 2022 s. 8.]
3AA . Additional relevant matters in cases of
sexual offences against child victims
(1) This clause
applies if —
(a) a
relevant offence is a sexual offence against a child victim; and
(b) the
accused is not a child.
(2) In considering
under clause 1(a)(iii) whether the accused, if not kept in custody, may
endanger the safety or welfare of the child victim, the judicial officer or
authorised officer must have regard to the matters mentioned in subclause (3).
(3) The matters are
the following —
(a) the
age of the child victim;
(b) the
age of the accused;
(c)
whether the child victim is in a family relationship with the accused;
(d) the
living arrangements of the child victim and of the accused;
(e) the
importance of safety, continuity, security and stability in the child
victim’s —
(i)
living arrangements; and
(ii)
family and community relationships;
(f) the
physical and emotional wellbeing of the child victim.
Note for this clause:
The Crimes Act 1914
(Commonwealth) section 15AAA provides that a bail authority must not grant
bail to a person charged with, or convicted of, certain Commonwealth child sex
offences unless the bail authority is satisfied that circumstances exist to
justify bail.
[Clause 3AA inserted: No. 29 of 2022 s. 8.]
3AB . Concerns of child victims
(1) This clause
applies if —
(a) a
relevant offence is a sexual offence against a child victim; and
(b)
either —
(i)
the child victim expresses concern to the prosecutor that
the accused, if not kept in custody, may endanger the safety or welfare of the
child victim; or
(ii)
a family member of the child victim or a police officer
investigating the relevant offence informs the prosecutor that the child
victim has expressed that concern;
and
(c) the
accused is not a child.
(2) The prosecutor
must inform the judicial officer or authorised officer about —
(a) the
child victim’s expression of concern; and
(b) so
far as practicable, the reasons for that concern.
(3) In considering
under clause 1(a)(iii) whether the accused, if not kept in custody, may
endanger the safety or welfare of the child victim, the judicial officer or
authorised officer must have regard to that information.
[Clause 3AB inserted: No. 29 of 2022 s. 8.]
3A . Bail for accused charged with serious offence
committed while on bail or early release for another serious offence
(1) Notwithstanding
clause 1, 2 or 4 or any other provision of this Act, where —
(a) an
accused is in custody —
(i)
awaiting an appearance in court before conviction for a
serious offence; or
(ii)
waiting to be sentenced or otherwise dealt with for a
serious offence of which the accused has been convicted;
and
(b) the
serious offence is alleged to have been committed while the accused was
—
(i)
on bail for; or
(ii)
at liberty under an early release order made in respect
of,
another serious
offence,
the judicial officer
or (if section 16A does not apply) the authorised officer in whom jurisdiction
is vested shall refuse to grant bail for the serious offence referred to in
paragraph (a) unless the judicial officer or authorised officer —
(c) is
satisfied that there are exceptional reasons why the accused should not be
kept in custody and, if clause 3B applies, is so satisfied only after
complying with that clause; and
(d) is
also satisfied that bail may properly be granted having regard to the
provisions of clauses 1 and 3 or, in the case of a child accused, clauses 2
and 3.
(2) Notwithstanding
section 7(1), where an accused is refused bail under subclause (1) for an
appearance for a serious offence his case for bail need not be considered
again under that subsection for an appearance for that offence unless he
satisfies the judicial officer who may order his detention that —
(a) new
facts have been discovered, new circumstances have arisen or the circumstances
have changed since bail was refused; or
(b) he
failed to adequately present his case for bail on the occasion of that
refusal.
(3) Where a child
accused is refused bail under subclause (1) he shall be dealt with in
accordance with section 19(2) of the Young Offenders Act 1994 .
[Clause 3A inserted: No. 45 of 1993 s. 10(2)(c);
amended: No. 57 of 1997 s. 21(3)(b); No. 54 of 1998 s. 7 and 13(1); No. 84 of
2004 s. 82; No. 6 of 2008 s. 41(4)(d).]
3B . Exceptional reasons under cl. 3A(1),
determining
(1) This clause
applies where it appears to the judicial officer or (if section 16A does not
apply) the authorised officer that all or any of the acts alleged to
constitute a serious offence referred to in clause 3A(1)(b) would, if proved
in the appropriate proceedings, amount to a breach by the accused of a
protective condition or order.
(2) The judicial
officer or authorised officer shall, before making a decision that there are
exceptional reasons for the purposes of clause 3A(1)(c), make enquiry, or
cause enquiry to be made, whether there has already been —
(a) any
breach by the accused of the protective condition or order that has been
proved in proceedings; or
(b) any
alleged breach by the accused of the protective condition or order that has
not been so proved, including an allegation that has not been the subject of a
prosecution or any other communication to any relevant official; or
(c) any
alleged breach by the accused of any other protective condition or order that
has been the subject of a prosecution.
(3) On becoming aware
of any such alleged breach, the judicial officer or authorised officer shall
give each person for whose protection a protective condition or order referred
to in subclause (2) was imposed or made (a relevant person ) a reasonable
opportunity to give evidence by affidavit on matters relating to that
protective condition or order.
(4) The judicial
officer or authorised officer shall in making any decision for the purposes of
clause 3A(1)(c) —
(a) give
due weight to —
(i)
any evidence given under subclause (3); and
(ii)
any adverse effect that a grant of bail to the accused
would have on a relevant person; and
(iii)
any difficulty that a relevant person might have in
proving any future breach of a protective condition or order;
and
(b)
consider whether it would be appropriate to refuse bail and make a hospital
order under section 5 of the Criminal Law (Mentally Impaired Accused) Act
1996 ; and
(c) in
the case of a condition imposed for a purpose mentioned in clause 2(2)(c) or
(d) of Part D, treat any alleged breach of the condition as a serious matter
even if the conduct alleged to amount to the breach in itself appears to be
trivial; and
(d)
consider whether any alleged breach of a protective condition or order that
has occurred shows that the purpose of the condition or order has not been
achieved and that the accused should be kept in custody.
(5) The provisions of
this clause do not limit the matters that the judicial officer or authorised
officer may take into account for the purposes of clause 3A(1)(c).
(6) In this clause
—
protective condition or order means —
(a) a
condition imposed for a purpose mentioned in clause 2(2)(c) or (d) of Part D;
or
(b) a
family violence restraining order or a violence restraining order or a police
order under the Restraining Orders Act 1997 ; or
(c) a
Part VII order under the Justices Act 1902 2 —
(i)
that under section 86 of the Restraining Orders Act 1997
is taken to be a misconduct restraining order under that Act; and
(ii)
that shows on the face of the order that the causing or
threatening of personal injury by the accused was a ground for the making of
the order.
[Clause 3B inserted: No. 54 of 1998 s. 13(2);
amended: No. 38 of 2004 s. 60; No. 59 of 2004 s. 141; No. 84 of 2004 s. 11 and
82; No. 49 of 2016 s. 89.]
Notwithstanding clause
1, 2 or 4 or any other provision of this Act, where an accused is in custody
—
(a)
awaiting an appearance in court before conviction for an offence of murder; or
(b)
waiting to be sentenced or otherwise dealt with for an offence of murder of
which the accused has been convicted,
the judicial officer
in whom jurisdiction is vested shall refuse to grant bail for the offence
unless the judicial officer is satisfied that —
(c)
there are exceptional reasons why the accused should not be kept in custody;
and
(d) bail
may properly be granted having regard to the provisions of clauses 1 and 3 or,
in the case of a child, clauses 2 and 3.
[Clause 3C inserted: No. 6 of 2008 s. 41(4)(e);
amended: No. 29 of 2008 s. 24(7).]
3D . Bail in cases under High Risk Serious
Offenders Act 2020 section 80(1)
(1) In this clause
—
section 80 offence means the offence under the
High Risk Serious Offenders Act 2020 section 80(1) of contravening a
requirement of a supervision order;
victim has the meaning given in the
High Risk Serious Offenders Act 2020 section 3.
(2) This clause
applies where an accused is in custody —
(a)
awaiting an appearance in court before conviction for a section 80 offence; or
(b)
waiting to be sentenced or otherwise dealt with for a section 80 offence of
which the accused has been convicted.
(3) Despite clause 1,
2 or 4 or any other provision of this Act, where this clause applies the
judicial officer or (if section 16A does not apply) the authorised officer in
whom jurisdiction is vested must refuse to grant bail for the section 80
offence unless the judicial officer or authorised officer —
(a) is
satisfied that there are exceptional reasons why the accused should not be
kept in custody; and
(b) is
satisfied that bail may properly be granted having regard to the provisions of
clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
(4) The judicial
officer or authorised officer must in making any decision for the purposes of
subclause (3) —
(a) have
regard to —
(i)
any history of proven or alleged contraventions of
supervision orders by the accused; and
(ii)
any adverse effect that a grant of bail to the accused
would have on a victim of the accused;
and
(b)
consider whether it would be appropriate to refuse bail and make a hospital
order under the Criminal Law (Mentally Impaired Accused) Act 1996 section 5;
and
(c)
consider whether the conduct alleged to amount to the contravention in itself
appears to be minor or trivial.
(5) Subclause (4) does
not limit the matters that the judicial officer or authorised officer may take
into account for the purposes of subclause (3).
(6) Despite
section 7(1), where an accused is refused bail under subclause (3) for an
appearance for a section 80 offence the accused’s case for bail need not
be considered again under that subsection for an appearance for that offence
unless the accused satisfies the judicial officer who may order detention that
—
(a) new
facts have been discovered, new circumstances have arisen or the circumstances
have changed since bail was refused; or
(b) the
accused failed adequately to present the case for bail on the occasion of that
refusal.
(7) A child accused
who is refused bail under subclause (3) must be dealt with in accordance with
the Young Offenders Act 1994 section 19(2).
[Clause 3D inserted: No. 21 of 2017 s. 9; amended:
No. 29 of 2020 s. 117.]
3E . Bail in cases of person linked to terrorism
(1) This clause
applies where an accused who is a person linked to terrorism is in custody
—
(a)
awaiting an appearance in court before conviction for an offence; or
(b)
waiting to be sentenced or otherwise dealt with for an offence of which the
accused has been convicted.
(2) Despite clause 1,
2 or 4 or any other provision of this Act, and in addition to clauses 3A to
3D, where this clause applies the judicial officer in whom jurisdiction is
vested must refuse to grant bail for the offence unless the judicial officer
is satisfied that —
(a)
there are exceptional reasons why the accused should not be kept in custody;
and
(b) bail
may properly be granted having regard to the provisions of clauses 1 and 3 or,
in the case of a child, clauses 2 and 3.
(3) The judicial
officer must, in making any decision for the purposes of subclause (2)(a)
—
(a) have
regard to the nature and seriousness of the offence or offences (including any
other offence or offences for which the accused is awaiting trial) and the
probable method of dealing with the accused for it or them, if the accused is
convicted; and
(b) have
regard to the conduct of the accused since the accused was —
(i)
charged with or convicted of a terrorism offence; or
(ii)
made the subject of the relevant interim control order or
confirmed control order;
and
(c)
consider whether it would be appropriate to refuse bail and make a hospital
order under the Criminal Law (Mentally Impaired Accused) Act 1996 section 5;
and
(d) in
the case of a child, consider the Young Offenders Act 1994 section 6(d) as an
objective of this Act with the safety of the community being an overriding
objective.
(4) Subclause (3) does
not limit the matters that the judicial officer may take into account for the
purposes of subclause (2)(a).
(5) Despite
section 7(1), where an accused is refused bail under subclause (2) the
accused’s case for bail need not be considered again under that
subsection for an appearance for that offence unless the accused satisfies the
judicial officer who may order detention that —
(a) new
facts have been discovered, new circumstances have arisen or the circumstances
have changed since bail was refused; or
(b) the
accused failed adequately to present the case for bail on the occasion of that
refusal.
(6) Where an accused
is granted bail under subclause (2), on any subsequent appearance in the same
case a judicial officer may order that bail is to continue on the same terms
and conditions.
(7) Where a child
accused is refused bail under subclause (2), the child accused shall be dealt
with in accordance with the Young Offenders Act 1994 section 19(2).
Note for this clause:
The Crimes Act 1914 (Commonwealth) section 15AA
provides that a bail authority must not grant bail to a person charged with,
or convicted of, a terrorism offence as defined in section 3(1) of that Act
unless the bail authority is satisfied that exceptional circumstances exist to
justify bail.
[Clause 3E inserted: No. 15 of 2019 s. 13(3).]
3F . Bail in cases of family violence offence
involving serial family violence offender
(1) This clause
applies where an accused is a serial family violence offender in custody
—
(a)
awaiting an appearance in court before conviction for a family violence
offence; or
(b)
waiting to be sentenced or otherwise dealt with for a family violence offence
of which the accused has been convicted.
(2) Despite clause 1,
2 or 4 or any other provision of this Act, where this clause applies bail may
only be granted by a judicial officer, other than a justice, in whom
jurisdiction is vested and the judicial officer must refuse to grant bail for
the family violence offence unless the judicial officer —
(a) is
satisfied that there are exceptional reasons why the accused should not be
kept in custody; and
(b) is
satisfied that bail may properly be granted having regard to the provisions of
clauses 1 and 3.
(3) Despite
section 7(1), where an accused is refused bail under subclause (2) for an
appearance for a family violence offence, the accused’s case for bail
need not be considered again under that subsection for an appearance for that
offence unless the accused satisfies the judicial officer who may order
detention that —
(a) new
facts have been discovered, new circumstances have arisen or the circumstances
have changed since bail was refused; or
(b) the
accused failed adequately to present the case for bail on the occasion of that
refusal.
(4) Before a judicial
officer grants bail under subclause (2), the judicial officer must —
(a)
request that a report be made under section 24A(2); and
(b)
having regard to the recommendations in the report, consider the imposition of
a home detention condition as a condition on the grant of bail that includes
electronic monitoring.
(5) Where an accused
is granted bail under subclause (2), on any subsequent appearance for bail in
the same case a judicial officer may order that bail is to continue on the
same terms and conditions.
(6) This clause does
not apply if bail is being granted under the Sentencing Act 1995 section
33C(6) and the court has considered the imposition of an electronic monitoring
requirement under section 33HA of that Act.
[Clause 3F inserted: No. 30 of 2020 s. 47.]
4 . Bail after conviction for accused awaiting
sentence
(1) Subject to clauses
3A, 3C, 3D, 3E and 3F, the grant or refusal of bail to an accused, other than
a child, who is in custody waiting to be sentenced or otherwise dealt with for
an offence of which the accused has been convicted shall be at the discretion
of the judicial officer in whom jurisdiction is vested, and that discretion
must be exercised having regard to all of the following —
(a) the
fact that the accused has been convicted of the offence;
(b) the
probable method of dealing with the accused for that offence and for any
pending offence;
(c) the
questions set out in clause 1;
(d) any
other considerations that the judicial officer considers relevant.
(2) A child accused
who is in custody waiting to be sentenced or otherwise dealt with for an
offence of which the child accused has been convicted has the same right to be
granted bail as a child accused referred to in clause 2(2), and the provisions
of clause 2 apply accordingly.
[Clause 4 inserted: No. 6 of 2008 s. 41(4)(f);
amended: No. 21 of 2017 s. 10; No. 15 of 2019 s. 13(4); No. 30 of 2020 s. 48;
No. 29 of 2022 s. 9.]
4A . Bail after conviction for accused awaiting
disposal of appeal
In deciding whether or
not to grant bail to an accused who is in custody waiting for the disposal of
appeal proceedings, the judicial officer shall consider whether there are
exceptional reasons why the accused should not be kept in custody, and shall
only grant bail to the accused if satisfied that —
(a)
exceptional reasons exist; and
(b) it
is proper to do so having regard to the provisions of clauses 1 and 3 or, in
the case of a child, clauses 2 and 3.
[Clause 4A inserted: No. 6 of 2008 s. 41(4)(f).]
5 . Exception to cl. 4A for bail in appeal under
Criminal Appeals Act 2004 Part 2
Clause 4A does not
apply to the bail of a person who is awaiting the disposal of appeal
proceedings under Part 2 of the Criminal Appeals Act 2004 ; such a person
shall be deemed for the purposes of this Part to be awaiting an appearance in
court before conviction for an offence.
[Clause 5 inserted: No. 33 of 1989 s. 18; amended:
No. 59 of 2004 s. 141; No. 84 of 2004 s. 11; No. 6 of 2008 s. 41(4)(g).]
6 . Bail of people on community or similar orders
For the purpose of
determining whether clause 4 applies, a person in custody —
(a)
under section 50, 79, 84E, 128, 129 or 132 of the Sentencing Act 1995 in
connection with a possible breach of a conditional release order, a sentence
of suspended imprisonment or conditional suspended imprisonment or a community
order imposed under that Act; or
(b)
under section 43 of the Young Offenders Act 1994 in respect of an alleged
breach of a youth community based order, an intensive youth supervision order
or a conditional release order made under that Act,
is to be taken as not
having been convicted of the offence for which the sentence was imposed.
[Clause 6 inserted: No. 78 of 1995 s. 8; amended:
No. 27 of 2004 s. 13(3).]
[Heading deleted: No. 6 of 2008 s. 41(4)(h).]
7 . Bail for initial appearance to be for not more
than 30 days
In fixing the terms of
bail of an accused for his initial appearance in court for an offence, a
justice or an authorised officer shall require him to make the appearance
within the period of 30 days commencing on and including the day on which the
accused was arrested for the offence.
[Clause 7 amended: No. 84 of 2004 s. 82; No. 6 of
2008 s. 41(4)(i).]
8 . Bail on adjournment in court of summary
jurisdiction to be for not more than 30 days except by consent
In fixing the terms of
bail of an accused for an appearance in court after an adjournment of
proceedings for an offence, a judicial officer sitting as a court of summary
jurisdiction shall require him to make the appearance within the period of 30
days commencing on and including the day on which the proceedings are
adjourned, unless the accused consents to appear on a later day.
[Clause 8 amended: No. 49 of 1988 s. 90(c); No. 59
of 2004 s. 141; No. 84 of 2004 s. 82.]
9 . Calculating periods for cl. 7 and 8
The periods specified
in clauses 7 and 8 shall be calculated to include any Sunday or public
holiday.
Part D — Conditions which may be imposed on a grant of bail
1 . Conditions as to forfeiture, sureties,
security etc.
(1) A judicial officer
or authorised officer, on a grant of bail, may impose conditions under this
clause if he considers that it is desirable to do so to ensure the performance
of the accused’s bail undertaking.
(2) If a judicial
officer or authorised officer considers that it is desirable as mentioned in
subclause (1), he may in addition to releasing the accused on his bail
undertaking impose any one or more of the following conditions —
(a) that
the accused in his bail undertaking agree to forfeit a specified amount of
money if he fails to comply with any requirement of his bail undertaking
mentioned in section 28(2)(a) or (b); or
(b) that
a surety or a specified number of sureties enter into a surety undertaking or
surety undertakings whereby he or they agree to forfeit a specified amount or
specified amounts of money if the accused fails to comply with any requirement
of his bail undertaking mentioned in section 28(2)(a) or (b); or
(c) that
any of them the accused and the surety or sureties give security of a
specified value, including the deposit of a specified amount of cash, for the
performance of their respective obligations; or
(d) that
any of them the accused and the surety or sureties deposit with a specified
officer any specified passbook or document relating to the title to, or
ownership of, any account or other asset offered as security for the
performance of their respective obligations; or
(e) that
any of them the accused and the surety or sureties, at his or their own
expense or otherwise, enter into such mortgage, charge, assignment or other
transaction, or take such other step, as may be required, including completion
of the necessary documents, to render any security effective and enforceable
by the State.
(3) The nature and
sufficiency of any security, and the documentation therefor, required under
subclause (2) shall be determined by the judicial officer or authorised
officer who imposed the condition or, if no determination is so made —
(a) by
the person before whom the bail undertaking is entered into, where the
security is to be given by the accused; and
(b)
where the security is to be given by a surety, by any person authorised under
section 36 to approve the surety or before whom the surety undertaking is
entered into.
(4) When a bail
undertaking ceases to have effect as provided in section 34(a) to (d), or upon
an accused being acquitted of a charge under section 51(1) or (2) or
discharged from further proceedings therefor, each of them the accused, or
where section 34(b) applies his personal representative, and any surety is
entitled to have returned to him any security given under subclause (2).
(5) When a surety
undertaking ceases to have effect as provided in section 47(a) to (f), a
surety is entitled to have returned to him any security given under subclause
(2).
[Clause 1 amended: No. 65 of 2003 s. 121(3); No.
84 of 2004 s. 82; No. 6 of 2008 s. 18(3).]
(1) A judicial officer
or authorised officer, on a grant of bail, may impose conditions —
(a) to
be complied with before the accused is released on bail or while the accused
is on bail; or
(b) as
to the accused’s conduct while on bail; or
(c) as
to where the accused shall reside while on bail,
if he considers that
it is desirable for any purpose mentioned in subclause (2), (2b), (3) or (4).
(1a) Without limiting
subclause (1), a judicial officer or authorised officer shall, on a grant of
bail to a child accused, consider whether it is desirable for any purpose
mentioned in subclause (2) to impose a condition as to —
(a) any
period in each day during which the child is to remain at a particular place;
or
(b) any
person with whom the child is not to associate or communicate; or
(c) any
place that the child is not to frequent; or
(d) the
attendance by the child at a school or other educational institution; or
(e) any
other matter,
and the judicial
officer or authorised officer may impose any such condition.
(2) Any condition may
be imposed under subclause (1) or (1a) to ensure that an accused —
(a)
appears in court in accordance with his bail undertaking; or
(b) does
not while on bail commit an offence; or
(c) does
not endanger the safety, welfare or property of any person; or
(d) does
not interfere with witnesses or otherwise obstruct the course of justice,
whether in relation to himself or any other person; or
(e) as
regards the period when the accused is on trial, does not prejudice the proper
conduct of the trial.
(2a) Before imposing a
condition on a grant of bail for a purpose mentioned in subclause (2)(c) or
(d) a judicial officer or authorised officer is to consider whether that
purpose would be better served, or could be better assisted —
(a) by a
restraining order made under the Restraining Orders Act 1997 and whether, in
the case of a judicial officer, to exercise the power in section 63 of that
Act or, in the case of an authorised officer, to make a telephone application
under that Act; or
(b) by a
combination of conditions for those purposes and a restraining order as
envisaged by paragraph (a).
(2AB) Where the
accused and an alleged victim are in a family relationship, the judicial
officer or authorised officer must ensure that any condition imposed under
subclause (2)(c) or (d) is not inconsistent with any restraining order in
place under the Restraining Orders Act 1997 .
(2AC) Subclause (2AB)
does not apply if the judicial officer or authorised officer considers that an
inconsistency is necessary to protect the safety of an alleged victim or of a
child who is also protected by an order under the Restraining Orders Act 1997
.
(2b) Where a judicial
officer is of the opinion that the accused should while on bail —
(a) be
counselled for a behavioural problem; or
(b)
attend a course or programme that may assist with such a problem,
the judicial officer
may under subclause (1) impose a condition for that purpose that requires the
accused to —
(c)
attend a prescribed person to be counselled; or
(d)
attend a prescribed course or programme,
that is specified by
the judicial officer in the condition.
(3) Where a judicial
officer who grants bail to an accused is of the opinion that the
accused’s physical condition ought to be examined the officer may, under
subclause (1), impose any condition which the officer considers desirable for
the purpose of ensuring that the accused is examined by a medical
practitioner.
(3a) Where a judicial
officer who grants bail to an accused is of the opinion that the
accused’s mental condition ought to be assessed or examined the officer
may, under subclause (1), impose any condition which the officer considers
desirable for the purpose of ensuring that the accused’s mental
condition is assessed or examined including a condition —
(a) that
the accused be assessed, either by a medical practitioner or by an authorised
mental health practitioner as defined in the Mental Health Act 2014
section 4, for the purpose of deciding whether to make a referral under
section 26 of that Act;
(b) that
the accused be admitted to an authorised hospital (as defined in the
Mental Health Act 2014 section 4);
(c) that
the accused be examined by a psychiatrist.
(4) Where a judicial
officer is of the opinion that an accused is suffering from alcohol or drug
abuse and is in need of care or treatment either on that account, or to enable
him to be prepared for his trial, the judicial officer may, under subclause
(1), impose any condition which he considers desirable for the purpose of
ensuring that the accused receives such care or treatment, including that he
lives in, or from time to time attends at, a specified institution or place in
order to receive such care or treatment.
(5) Where a judicial
officer imposes a condition for a purpose mentioned in subclause (2b), (3),
(3a) or (4), the judicial officer shall cause to be sent to the person who is
to counsel, assess or examine the accused, or the place at which the accused
is to attend, a statement of the reasons for imposing the condition.
(6) Where a condition
is imposed under this clause that an accused shall reside in premises
established for the accommodation of persons to whom bail has been granted,
that condition shall be deemed to include a further condition that the accused
shall comply with such rules as are for the time being laid down for the
maintenance of the good order of those premises, whether such rules are made
under section 67 or by the authority responsible for the good order of the
premises.
(7) In this clause
—
medical practitioner means a person registered
under the Health Practitioner Regulation National Law (Western Australia) in
the medical profession;
psychiatrist has the meaning given in the
Mental Health Act 2014 section 4.
[Clause 2 amended: No. 45 of 1993 s. 10(3); No. 69
of 1996 s. 3; No. 54 of 1998 s. 12; No. 84 of 2004 s. 82; No. 22 of 2008 Sch.
3 cl. 4; No. 35 of 2010 s. 29; No. 25 of 2014 s. 35; No. 30 of 2020 s. 49.]
[Clause 2. Modifications to be applied in order to
give effect to Cross-border Justice Act 2008: clause altered 1 Nov 2009. See
endnote 1M.]
(1) A judicial officer
may, subject to this clause, impose a home detention condition as a condition
on a grant of bail.
(2) A home detention
condition shall not be imposed unless the accused is over the age of 17 years
and the judicial officer is satisfied —
(a)
after considering a report from a community corrections officer about the
accused and his circumstances, that the accused is suitable to be subject to a
home detention condition; and
(b) that
the place where it is proposed the accused will remain while subject to the
home detention condition is a suitable place; and
(c) that
unless a home detention condition is imposed, the accused will not be released
on bail.
(3) A home detention
condition is a condition that while the accused is on bail the accused shall
—
(a)
remain at and not leave the place specified in the bail record form and in the
bail undertaking (or in a notice under section 50E) until the time specified,
or deemed by section 31(3) to be specified, in the bail undertaking except
—
(i)
to work in gainful employment approved by a community
corrections officer; or
(ii)
with the approval of a community corrections officer, to
seek gainful employment; or
(iii)
to obtain urgent medical or dental treatment for the
accused; or
(iv)
for the purpose of averting or minimizing a serious risk
of death or injury to the accused or to another person; or
(v)
to obey an order issued under a written law (such as a
summons) requiring the accused’s presence elsewhere; or
(vi)
for a purpose approved of by a community corrections
officer; or
(vii)
on the direction of a community corrections officer;
and
(b) not
leave the State; and
(c)
comply with every reasonable direction of a community corrections officer; and
(ca) if
relevant, comply with any direction under subclause (4); and
(d)
comply with such of the conditions specified in the list provided under
section 24A(4) as may be specified in a notice given under section 50E(b); and
(e) when
requested to do so, produce a copy of his bail undertaking and any notice by
the CEO (corrections) under section 50E for inspection by a community
corrections officer or a member of the Police Force.
(4) A judicial officer
who imposes a home detention condition under this clause may, if a community
corrections officer under section 24A(4)(a) recommends that the accused is
suitable for electronic monitoring, direct that the accused, while subject to
a home detention condition —
(a) be
subject to electronic monitoring under subclause (5) so as to allow the
location of the accused to be monitored; and
(b) be
under the supervision of a community corrections officer and comply with the
directions of the community corrections officer under subclause (5).
(5) For the purpose of
the electronic monitoring of an accused, a community corrections officer may
do any or all of the following —
(a)
direct the accused to wear an approved electronic monitoring device; and
(b)
direct the accused to permit the installation of an approved electronic
monitoring device at the place where the accused is to remain; and
(c) give
any other reasonable direction to the accused necessary for the proper
administration of the electronic monitoring of the accused.
(6) A community
corrections officer may suspend the electronic monitoring of an accused
subject to direction under subclause (4) —
(a)
while satisfied that it is not practicable to subject the accused to
electronic monitoring; or
(b)
while satisfied that it is not necessary for the accused to be subject to
electronic monitoring.
(7) A requirement that
an accused subject to a home detention condition while on bail wear an
electronic monitoring device cannot apply to a person who is under 18 years of
age.
[Clause 3 inserted: No. 61 of 1990 s. 15; amended:
No. 31 of 1993 s. 9; No. 84 of 2004 s. 82; No. 65 of 2006 s. 53; No. 13 of
2020 s. 28.]
[Clause 3. Modifications to be applied in order to
give effect to Cross-border Justice Act 2008: clause altered 1 Nov 2009. See
endnote 1M.]