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.

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.

Despite the presumption of bail set out under section 10 of the Bail Act 1985 (SA), there is a presumption against bail in particular circumstances and for certain offences (section 10A). People who fall into this category are referred to as ‘prescribed applicants’.

Prescribed applicants are applicants who:

  • are charged with attempting to escape a police pursuit or to engage an officer in a police pursuit, and in doing so have also been charged with:
    • manslaughter by use of a motor vehicle; or
    • causing death or harm by use of a vehicle or vessel (e.g., a boat); or
    • committing an act or making an omission that endangers life or creates risk of serious harm whilst using a motor vehicle.

  • are charged with breaching any bail conditions that relate to the physical protection of a victim;
  • are alleged to have been physically violent or threatened physical violence and in doing so have contravened an intervention order;
  • are a serious and organised crime suspect;
  • are charged with contravening a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008 (SA);
  • are charged with contravening an intervention order and the alleged offence is within the range of conduct that the intervention order was designed to prevent;
  • are charged with an aggravated offence involving physical violence or a threat of physical violence (e.g., aggravated assault) – and the aggravating factor is that they contravened an intervention order;
  • are charged with:
    • blackmail; or
    • threatening persons involved in criminal investigations or judicial proceedings; or
    • threatening a public officer (e.g., a judge, politician, police officer, a member of the DPP, or any other public servant); or
    • causing a bushfire; or
    • a serious firearm offence; or
    • a serious drug offence.

  • are charged with a serious offence against the person – within the meaning of section 74EA of the Summary Offences Act 1953 (SA), i.e.:
    • murder or attempted murder; or
    • manslaughter or attempted manslaughter; or
    • a sexual offence (e.g., rape, indecent assault, unlawful sexual intercourse, incest, sexual exploitation or abuse of a child, sexual exploitation of a person with a cognitive impairment); or
    • criminal neglect; or
    • stalking; or
    • causing harm or causing serious harm; or
    • unlawful threat to kill or endanger life; or
    • abduction; or
    • blackmail; or
    • contravening or failing to comply with an intervention order; or
    • contravening or failing to comply with a restraining order.

In these circumstances it is up to you to prove that there are special circumstances that justify why you should be released on bail.

For more information about special circumstances and if they are relevant to your matter you should contact a lawyer. Call us on 08 8120 3783 to book an appointment with one of our experienced lawyers.

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.