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Bail Key Facts

Maximum Penalty

  • First offence of gross indecency is three years imprisonment.
  • Any subsequent offence of gross indecency is five years imprisonment.

Breach of Bail

  • $10 000 or 2 years’ imprisonment.

What Is Bail?

If you have been arrested you have the option to apply for bail (that is, an application to be released pending trial and/or sentence). Applications for bail in all courts are governed by the Bail Act 1985 (SA), which applies to both South Australian and Commonwealth offences.

A bail agreement is an undertaking to the Court that you will be present for all relevant court attendances/proceedings (unless otherwise excused by the Court) and that you will comply with any conditions as to your conduct while on bail (which will be outlined in the agreement) [Bail Act 1985 (SA) s 6].

Bail agreements usually specify a monetary amount, which you only have to pay if you breach your bail. A ‘cash bail’ is one where you are required to pay the sum up front when entering the bail agreement. This is also referred to as a ‘bond’. Provided you do not breach your bail agreement, you will get the bond money back when your matter is finished.

You are not permitted to leave the State while you are on bail unless you get permission from a magistrate.

Presumption of bail

The maximum penalty for a first offence of gross indecency is three years imprisonment.

The maximum penalty for any subsequent offence of gross indecency is five years imprisonment.

Presumption against bail - prescribed applicants

Generally, if you have been arrested, taken into custody and charged with an offence there is a presumption in your favour that you should be granted bail (i.e., released from custody) [Bail Act 1985 (SA) s 10].

This means that it is the obligation of the bail authority assess any reasons
why you should not be released, rather than you having to prove that you should
be released.

When assessing whether you should not be released on bail the bail authority will have regard to the following matters:

  • the gravity (seriousness) of the offence;
  • the likelihood you would abscond, reoffend, interfere with evidence, interfere with witnesses, hinder police inquiries, or breach of a intervention order;
  • whether you need physical protection;
  • any medical or other care you require;
  • whether you have previously breached your bail conditions;
  • whether there are any victims have a need (perceived or otherwise) for physical protection (this is a primary consideration);
  • any other relevant matter.

If you are going to appear before a court as a witness in other proceedings (not your own) then you should (subject to the above matters) be released on bail.

Breach of bail

It is an offence if you do not comply with your bail agreement (i.e., breach your bail conditions) without reasonable excuse [Bail Act 1985 (SA) s 17].

Maximum penalty: $10 000 or 2 years’ imprisonment.

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