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Bail

 

What is bail?

If you are charged with a criminal or traffic offence and you will be attending court, you will need to understand what bail is.

Bail is a written promise, known as a bail undertaking, that you will come to a certain court at a particular time and date and abide by any conditions included in the undertaking. It is also a promise that if you do not come to court when you are supposed to, that you will still come as soon after that as you possibly can.

Bail may be set by the police or the court. Once you are in court for a particular charge, only the court can set bail for you in relation to that charge. The court can change or remove bail set by the police in relation to that charge.

When you appear in court, bail will only be necessary if you have to come back to court on a later date. If your matter is finished on your first appearance in court, bail will not need to be considered or imposed by the court.

The court may not require you to enter into a bail undertaking in every case. This will depend on the seriousness of the offence and the circumstances of your case.

If you are required to enter into a bail undertaking, you must sign the undertaking and you will be given a copy of it before you leave court.

What are bail conditions?

Every bail undertaking includes a promise to attend a certain court at a particular time and date.

Some undertakings include other conditions as well. Any other conditions will be explained to you when you are in court and will be included in your written bail undertaking.

If you have a surety condition imposed on you, your surety must also sign the undertaking and they will be given a copy of the undertaking. For more information about a surety condition see Being a surety.

What are common types of bail conditions?

Conditions that are commonly attached to bail may include that you:

  • Attend court at the time and place stated in your bail undertaking
  • Agree to pay an amount of money to the court if you do not attend when required (also called a personal undertaking)
  • Have another person agree to pay money if you do not attend when required (also called a surety undertaking)
  • Report to a police station on certain days
  • Abide by a curfew (to be at a specified address between certain hours)
  • Live at one address only
  • Not contact specified people (either directly or indirectly)
  • Not enter specified areas
  • Comply with home detention
  • Attend a doctor or psychiatrist or receive treatment as specified by the court
  • Not re-offend while you are on bail (if you are charged with more offences that were committed after you were released on bail, you might be kept in custody until the court has dealt with your new charges).

What are protective bail conditions?

Protective bail conditions are special bail conditions that may be imposed to ensure that nothing is done to endanger the safety, welfare or property of any person, or to ensure there is no interference with witnesses. Usually, a protective bail condition will require you to stay away from a specified person or a specified place.

What if I breach a protective bail condition?

Any breach of a protective bail condition is a serious offence in itself. If you have breached a protective bail condition, it is recommended that you get legal advice immediately. Click here for more information about Breach of bail including information about breach of a protective bail condition.

What is home detention bail?

If you are placed on home detention bail, you are required to be at home 24 hours a day, unless otherwise approved by a community corrections officer or specified in the bail undertaking. You will also be required to abide by any other conditions of bail set by the court.

How can I be released on home detention bail?

The police cannot release you on home detention, only the court can do so. You cannot be released on home detention unless you are over 17 years old. Before considering home detention bail, the court will request that an assessment be made of the address you propose to live at. A report will be presented to the court about that address and the other people who reside there. This assessment usually takes about eight days, but can take longer.

What if I lose my bail undertaking and can’t remember my bail conditions?

If you lose your copy of the bail undertaking, you should immediately contact the court or police and ask them to remind you when you need to appear in court. You should also ask them to remind you what conditions, if any, are attached to your bail.

Can I ask for my conditions of bail to be changed?

Asking for your bail to be changed is called applying for a variation of bail. You can apply to vary your bail, including any condition of your bail, if there are new facts or a change of circumstances. It is up to you to show what the new facts are or how your circumstances have changed since bail was set. For example, if you have a condition that requires you to report to the Warwick Police Station on Monday and Wednesday each week but you now work in Armadale on those days, you can ask the court to vary that condition so that you report to the Armadale Police Station instead.

If you need to apply to vary your bail, the application must be made to the court where your charge is listed. You can make the application on the date when you are next due to appear in court, or if you need the variation sooner, you can contact the court Registry and ask for an early listing. The Registry will ask you why you want the early listing and you should tell them it is for an application to vary bail.

Do I need to be represented when I apply to vary my bail?

You do not have to be represented, however, if you are appearing in the Magistrates Court, a duty lawyer can represent you and make the application for you.

What will happen if I breach a condition of my bail?

If you breach any condition of your bail, including failing to attend court on the date specified in your bail undertaking, you may be arrested and taken to court. You may also be charged with an offence of breach of bail, depending on the nature of your breach.

For more information on what happens if you breach your bail, see Breach of bail.

What if I am refused bail?

If you are refused bail, or your bail is revoked (taken away), you will be remanded in custody. In this case, it is recommended that you seek legal advice.

What if I am appearing in the Children’s Court?

Bail is different in the Children’s Court. If you are appearing in the Children’s Court you should see the duty lawyer there. They can give you advice about bail and represent you in court.

Where can I get legal advice?

If you already have a lawyer representing you, you should contact that lawyer if you need advice and representation on any issue relating to bail.

If you are appearing in the Magistrates Court and you do not already have a lawyer, or you cannot contact your lawyer and you need advice and representation on any issue relating to bail, you should ask to see the duty lawyer from Legal Aid WA on the morning of your court appearance. Go to Duty Lawyer Service for more information.

If you are an Aboriginal or Torres Straight Islander, the Aboriginal Legal Service of Western Australia (ALSWA) may be able to assist you when you attend court.

Where can I get more information?

Last reviewed: 07/05/2013

Last Modified: 07/05/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.