Section 10 of the Bail Act 1985 (SA) provides a presumption in favour of bail. The presumption means that bail should be granted unless there are good reasons for its refusal.

The presumption does not apply to bail applications made upon lodging an appeal against a conviction or sentence, or where section 10A applies (see below).

The presumption in favour of bail is subject to the following considerations [Bail Act 1985 (SA) s 10(1)]:

The presumption in favour of bail is also subject to the primary consideration of the need, or perceived need, of any victim of the alleged offence to be protected from physical violence [Bail Act 1985 (SA) s 10(4)].

Section 10A of the Bail Act 1985 (SA) removes the presumption in favour of bail in certain cases, and requires the person applying for bail to convince the bail authority that there are special circumstances justifying bail before the bail authority can grant bail.

Section 10A applies if an applicant was taken into custody for:

Under section 10A(1a), a bail applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist unless the applicant also establishes, by evidence verified on oath or by affirmation, that they have not previously been convicted of a serious and organised crime offence in South Australia or equivalent offence in another jurisdiction.

Pursuant to s 10AA, before granting bail to a person who has been charged with a child exploitation material offence, a bail authority must consider the harm that people who deal with child exploitation material cause to children by contributing to demand for the abuse of children.

The bail authority can question the applicant or any other person who may be able to provide information relevant to the application. If the bail authority is a court, it can take evidence on oath or affirmation from the applicant or any other person. It can also order a report about issues arising in a bail application. Such reports are prepared by officers of the Department for Correctional Services, or, in the case of a child, the Department for Human Services (Youth Justice).

Where a person released on bail becomes a terror suspect during the bail period, they can be arrested without warrant and upon arrest the bail agreement is taken to be revoked [Bail Act 1985 (SA) s 19B].

Commonwealth child sex offenders

There is a presumption against granting bail for persons charged with, or convicted of, certain Commonwealth child sex offences [see Crimes Act 1914 (Cth) s 15AAA].

A bail authority must be satisfied that circumstances exist to grant bail, and must consider the matters outlined in section 15AAA(2) of the Crimes Act 1914 (Cth) when determining whether such circumstances exist.

A person may be released on bail on their own undertaking, where they sign the agreement and personally guarantee to appear and comply with the conditions of the bail agreement. Sometimes, a guarantor is required.

A guarantor enters into a separate agreement known as a guarantee of bail, in which they guarantee that the person who is released on bail will comply with the bail agreement (or with specified conditions of the bail agreement). The guarantor may be required to forfeit a sum of money if the person on bail fails to comply with a term or condition of the bail agreement [Bail Act 1985 (SA) s 7].

A guarantor must be at least 18 years of age [s 7(6)].

If a guarantor knows, or reasonably suspects, that the person on bail has breached a term or condition of their bail agreement, the guarantor must take reasonable steps to notify the police. Failure to do so may result in a fine as well as forfeiture of a sum of money [s 17A].

A guarantee of bail is a serious, binding obligation and a guarantor will only be released from an obligation in extreme circumstances. A guarantor can apply to the court to vary the conditions of the guarantee of bail or to revoke it at any time [s 7(4)].

A person refused bail by the police or by a court constituted of justices may apply for a review of that decision by a magistrate. If bail was granted, the Crown may apply for a review [Bail Act 1985 (SA) s 14(1), (2)].

The application is treated as a fresh application, and the court must hear and determine it as expeditiously as possible [s 14(3)-(5)].

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 is satisfied that there is a proper reason for it [s 16].

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.

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)].

When telephone review applications are not available

Telephone review of a bail application is not available to adults who are arrested and denied police bail if they can appear before the Magistrates Court by no later than 4pm on the next day [s 15(2)].

It also does not apply to an adult prescribed applicant and in these cases there is a presumption against bail [s 10A]. See Presumption of bail for a more comprehensive list of prescribed applicants covered by section 10A(2) of the Bail Act 1985 (SA).

The Supreme Court may review bail decisions on application by the applicant for bail or the Crown [Bail Act 1985 (SA) s 14]. The review is treated as a fresh application, and the Court must hear and determine it as expeditiously as possible [s 14(2)-(5)].

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 Supreme Court is satisfied that there is a proper reason for it [see Bail Act 1985 (SA) s 16].

The decision of a magistrate on review may itself be reviewed on application by the person refused bail or the Crown [s 15A]. A review may only proceed with the permission of the Supreme Court. Permission will only be granted if it appears there may have been an error of law or fact in the magistrate's decision [s 15A(3)].

See also Joint Criminal Rules 2022 (SA).

There is no further appeal from the Supreme Court refusal.