Bail authorities are constituted under section 5 of the Bail Act 1985 (SA). The courts and certain police officers are bail authorities in accordance with the Act.
A person who has been arrested can make a bail application to any police officer who is of or above the rank of sergeant or who is the responsible officer (officer in charge of the police station or a police officer who has been designated the responsibility by the officer in charge for people accepted into custody of that station) of the police station [Bail Act 1985 (SA) s 5(1)(e)(iii)-(iv)].
Where police bail is granted, the person is released from the police station once the conditions of bail are satisfied or agreed, and on condition they attend court on a designated date.
If a person has been arrested on a warrant issued by a court, and the warrant contains a clause prohibiting bail, then bail cannot be granted by a police officer [s 5(1)(e)(ii)]. This happens when the defendant has failed to appear in court on a previous occasion and the court has issued a warrant of apprehension excluding police bail [Bail Act 1985 (SA) s 5(1)(e)(i) and s 5(2)(b)].
In practice, police bail is often refused for serious offences, but will depend on the circumstances of the alleged offending (including the gravity of the offence), or defendant. Bail is usually refused in serious matters such as homicides and armed robberies on the grounds of the gravity of the offence. Refusal of police bail means the person remains in custody until they can be brought to court for a bail applicationand apply for court bail, if they wish to do so.
A person is not eligible to apply for bail while being detained under the Summary Offences Act 1953 (SA) for purposes related to the investigation of a serious offence [see Bail Act 1985 (SA) s 4(2); Summary Offences Act 1953 (SA) s 78(2) for power to detain; Summary Offences Act 1953 (SA) s 78(3) for removal from custody in police station; Summary Offences Act 1953 (SA) s 78(4) for authorisation by a Magistrate; Summary Offences Act 1953 s 78(6) for definition of prescribed period and serious offence; and Police Powers and Forensic Procedures chapter]. A person who is being detained must wait until detention for that purpose has finished or until charged with an offence [Bail Act 1985 (SA) s 4].
A person who is not released on bail by the police must be brought before a court as soon as reasonably practicable, but in any event not later than 4:00 pm on the next working day following arrest [Bail Act 1985 (SA) s 13(3) ]. They will usually be detained overnight at the Watch House (or a few hours if arrested in the morning) while they wait to be brought to court to apply for bail. The person may then apply to the court for bail or for review of the refusal of bail.
A person refused police bail who cannot be taken to court before 4:00 pm the day after their arrest can apply for a bail review by a Magistrate over the telephone [Bail Act 1985 (SA) ss 14 - 15].
When bail is refused, the bail authority must record the reasons for the decision in writing [Bail Act 1985 (SA) s 12(1)].
Where a South Australian police officer arrests and charges an offender in another participating jurisdiction within the geographical region (namely Western Australia or Northern Territory), the provisions of the Bail Act 1985 (SA) apply with some modifications [see Cross-border Justice Act 2009 (SA) ss 92 and 34(2)(a)].
Where a person is arrested and charged by a police officer from another jurisdiction in the South Australian region, the laws governing bail for the other jurisdiction apply rather than the Bail Act 1985 [see Cross-border Justice Act 2009 (SA) ss 94 and 51(2)(a) and Police Powers and Forensic Procedures chapter].
The Watch House sergeant will have refused bail for reasons based on the Bail Act 1985 s 10(1), which lists the circumstances which may rebut the presumption in favour of bail (discussed in detail below).
The reasons for refusal of police bail must be clearly endorsed on the document Form 2 Written record of reasons for refusal of bail application and attached to the court file [see Bail Regulations 2015 (SA) Sch 1 Form 2]. There should also be a copy of this document on the prosecution file.
The Form 2 sets out the reasons for refusing police bail and forms the basis for prosecution opposing court bail. The factors commonly cited on the Form 2 are:
| ADDRESS THE FORM 2 |
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| The duty solicitor should always access and address the Form 2 provided by prosecution before applying for bail. The factors on the Form 2 will be the ones the duty solicitor takes detailed instructions on and concentrates on during submissions.
Sometimes the Form 2 is not on the police file. This is the prosecution’s responsibility, not that of the duty solicitor. It is up to the police prosecutor to give reasons why bail is opposed. If the duty solicitor knows of the reasons from the defendant’s instructions, it is not their job to put them to the court. The duty solicitor should simply indicate that they are not instructed by prosecution as to why police bail was refused and make submissions as to the factors in favour of bail. |
If there is no magistrate in the immediate vicinity who can review the decision, the person can request, in writing, that the decision be reviewed by a magistrate over the telephone [Bail Act 1985 (SA) s 15(1)(c)]. Police sometimes allow this without a written request, and where the original bail application was not required to be in writing then this application can also be made orally [s 15(4)].
This type of review is primarily for arrests on weekends or in remote areas where a court is not readily available. It does not apply to adults who are arrested and denied police bail who can be brought before the Magistrates Court by not later than 4:00 pm on the next day [s 15(2)].
Telephone reviews are not available for adult prescribed applicants (within the meaning of section 10A(2) of the Bail Act 1985 (SA)) - see Presumption against bail.
The police officer must contact a magistrate as soon as possible after the application is received. If the original police officer is not available, another police officer of or above the rank of sergeant or the responsible officer of the station must contact a magistrate [s 15(5)].
In the course of making inquiries and reviewing the decision, the magistrate must speak to the applicant for bail or any legal practitioner or other person representing or assisting the applicant [s 15(6)(c)].
Bail may be granted by a Magistrate in the following circumstances:
The first application for bail following arrest and charge for a summary offence or indictable offence (prior to committal) following refusal of police bail [see Bail Act 1985 (SA) ss 5(1)(d) and 14(2)(b) regarding review of decision of bail authority].
Persons charged with major indictable offences must be subject to bail conditions [see Criminal Procedure Act 1921 (SA) ss 104 and 120(2), and Courts and Jurisdiction chapter].
An application for bail can be made for persons who have been arrested for outstanding warrant(s) of apprehension [see Bail Act 1985 (SA) ss 4(1)(e) and 4(1)(f)].
When witnesses or victims in court proceedings who are required by the Court to attend to give evidence and/or produce evidentiary material fail to answer the summons to attend the Court, a warrant may be issued for their arrest [see Magistrates Court Act 1991 (SA) s 20(3)].
There is a presumption in favour of the granting of bail for a witness unless there is a risk they will abscond [see Bail Act 1985(SA) s 10(3)].
In the case of a victim, there is a presumption in favour of the granting of bail with the primary consideration being any need of the victim for physical protection from the applicant [see Bail Act 1985 s 10(4)].
| WITNESSES AND VICTIMS |
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| The arrest of persons who have failed to attend the Court to give evidence and/or produce evidentiary material in court proceedings is becoming more common. These people are at risk of being remanded into custody pending their appearance at court. Remember, there is a presumption in favour of granting bail in this situation. These people should be advised that it is a contempt of court to appear at the court proceeding and then refuse or fail to make an oath or affirmation, give oral evidence or provide evidentiary material. This is a contempt of court regardless of their appearance due to their arrest on a warrant [see Magistrates Court Act 1991 (SA) s 21]. |
It is permissible to make further bail applications following an earlier refusal of bail [see Bail Act 1985 (SA) s 12(2) and box below].
While a change in circumstances is not required to reapply for bail, it is unlikely the application will be successful without a change in circumstances [see Webster v SA (2003) 87 SASR 17; [2003] SASC 347].
| REQUEST TO REAPPLY FOR BAIL |
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| The duty solicitor may be asked by a defendant remanded in custody to reapply for bail following an earlier refusal of bail. It is permissible to do so bearing in mind that some Magistrates: will not entertain a fresh application unless there is some new factor to put before the Court, such as the availability of assured accommodation or a guarantor or prosecution no longer opposes bail; or take the view that a fresh application should be heard by the Magistrate who originally refused bail.
INSTRUCTIONS The duty solicitor should take careful instructions if they did not appear on the first application for bail. This is because they do not know what submissions were made to the Court during that first bail application. |
The defendant was previously granted bail but has remained in custody being unable to meet a particular condition such as provide a guarantor, deposit a cash surety or live at a nominated address. The defendant must appear at court ‘for a review of the condition as soon as reasonably practicable, and, in any event, within five working days after the condition is imposed’ [see Bail Act 1985 s 11(9)(b)].
This review will be facilitated via audiovisual link [see Joint Criminal Rules 2022 (SA) r 38.3(1), and box below].
Upon review the Magistrate considers whether it is appropriate to confirm, vary, revoke or impose an alternative bail condition(s) to allow for release from custody [see Bail Act 1985 (SA) s 11(10) and box below].
| ALTERNATIVE BAIL CONDITIONS |
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In this situation the duty solicitor should take instructions as to whether a substituted condition is acceptable to the defendant. For example:
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| URGENT COURT LISTING |
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If the duty solicitor becomes aware that a defendant is in custody due to an unmet bail condition either within or after the requisite five days, ask court listings to urgently list the matter with a gaol order for the defendant to appear at Court.
Where the Department for Correctional Services fail to ensure a person with an unmet bail condition is brought to the Court within the required five working days, there may be civil law issues of negligence as to a breach of duty under s 11(9) of the Bail Act 1985. In serious cases, the Crown Solicitor may authorise an ex gratia payment to compensate the defendant for the experience of unnecessary time in custody.
The duty solicitor is not in a position to follow up such a situation. However, they should advise the defendant to seek legal advice about their entitlement to compensation.
AUDIOVISUAL LINK
The proceedings will be listed by audiovisual link, therefore the duty solicitor should be aware of the limitations on obtaining instructions on the day of the hearing. In particular, a lack of time and confidentiality may limit your ability to take further instructions immediately prior to the hearing. Attend the courtroom well before the hearing time and request access to the applicant via telephone before the hearing commences. Make sure the applicant can see and hear the proceedings at the commencement of the hearing [see Joint Criminal Rules 2022 (SA) r 38.3 for Appearance of Defendant in Custody by Audio Visual Link]. |
All bail authorities are able to vary bail conditions upon their own initiative or upon application of the defendant [see Bail Act 1985 (SA) s 6(4)].
Matters can be brought forward for an earlier court listing if there is a need to vary a bail condition.
The required form is Form 21C Interlocutory Application to Vary or Revoke Bail Agreement, available on the Court SA portal.
*The content below may be subject to review upon the commencement of the Statutes Amendment (Bail Authorities) Act 2020 (SA) on 1 January 2021
A District Court Judge may grant bail on indictable matters once the Court has jurisdiction on or following arraignment [see Bail Act 1985 (SA) s 5(1)]. The Court will issue a bench warrant should a defendant fail to appear or abscond [see Bail Act 1985 (SA) s 6(5)]. An application for bail on that particular matter must come before a Judge of that court [see box below].
| ASSISTING A PERSON WITH A BENCH WARRANT |
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Duty solicitors commonly encounter the situation where a defendant arrested on a fresh summary offence also has a District or Supreme Court bench warrant. In this case you should:
The duty solicitor should not refrain from applying for bail on the summary matters simply because there is a bench warrant. If there is no application for bail on the summary matter(s) and the defendant is subsequently granted bail on the bench warrant matter(s), a situation arises where the defendant remains in custody in relation to their less serious offences. |
| BAIL INFORMATION SYSTEM (BIS) |
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| As of 23 May 2011, the Supreme Court and District Court introduced the Bail Information System (BIS) which provides a comprehensive bail report of all current bail agreements a defendant is subject to at any particular point in time. This information can be obtained from SAPOL, the police prosecutor or the DPP. |
A Supreme Court Justice may grant bail once the defendant appears before the Court on or after arraignment [see Bail Act 1985 (SA) s 5(1)(a)] and upon application by the defendant for a review of a refusal of bail by a Magistrate or District Court Judge [see Bail Act 1985 (SA) s 14]. A bail review is not an appeal; it is a hearing de novo (treated as a a fresh application) in which the application is heard on its merits and the decision made based on the information before the Court at the time of the review [see also Bail Act 1985 (SA) s 15A].
In Crown applications, if counsel appearing for the Crown or a police officer tells the bail authority that an application for review is to be made, then the bail authority must delay the release of the applicant until after the review, or for a period of 72 hours, or a longer fixed period if the magistrate or Supreme Court are satisfied that there is a proper reason for it [see s 16 Bail Act 1985 (SA)].
| ARRANGING A SUPREME COURT BAIL REVIEW |
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| A duty solicitor normally does not apply for bail or conduct a bail review before the Supreme Court. The duty solicitor must brief an experienced practitioner where the decision to refuse bail is reviewable. They will need to swear an affidavit as to the submissions made to the Court as duty solicitor. It is important that the duty solicitor write comprehensive notes, if not before, as soon as possible after the bail application while their submissions are fresh in their mind [see Affidavit Precedent]. |
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