Applying for bail
What is bail?
Bail is a written promise—known as a bail undertaking—to appear in court on a particular date.
If you’re charged with an offence, bail allows you to go home to wait for your court hearing rather than remain in custody. It can be granted at any stage of a criminal proceeding.
You are usually entitled to bail if you’ve been arrested for a minor offence. However, bail might be refused if you have outstanding court matters or fines, or if your case is very serious.
Sometimes your bail will have conditions attached, including surrendering your passport, staying at the same address or reporting to police.
An important bail condition is that you do not commit further offences while on bail.
Types of bail
Watch house bail
If police arrest and charge you with an offence, they may grant you watch house bail. Upon release, you must attend court on the date stated on your bail undertaking and comply with any bail conditions. At your court appearance, you can apply to have your bail enlarged (which means the bail is extended to another hearing date) or varied (which means your bail conditions are changed).
If the police refuse to grant you watch house bail, you can apply to the court for bail. If the court agrees, the police must release you once you sign the bail undertaking, though it may take a few hours to release you.
If you are required to appear in court and you have your matter adjourned for another day, the court will often enlarge your bail undertaking to the new court date and you don’t have to sign a new bail undertaking.
If the court refuses to grant bail, you can apply to the Supreme Court for bail.
If your offence is very serious (e.g. murder) you can apply to the Supreme Court for bail. You cannot apply to the Magistrates Court that is hearing your charges.
How to apply for bail
Legal Aid provides a self-help kit to help you apply for bail.
What the court considers
The court will usually grant you bail unless there is a risk of you:
- committing further offences
- endangering another person
- obstructing the course of justice
- failing to appear in court.
Additionally, the court will consider:
- the type of offence
- the evidence against you
- whether you have a place to live, job, criminal record or children
- whether you have someone to provide a surety (a sum of money to the court, which will be forfeited if you breach bail)
- whether you can and will comply with bail conditions
- whether you are in a 'show cause position' (see below).
Failing to comply with bail conditions is an offence and may result in your bail being revoked. You could even be rearrested.
If you breach bail—such as by failing to appear in court or not complying with a condition—you should seek legal advice immediately; you will have to appear before the court to explain why you breached bail.
After getting legal advice, go to the police station yourself, rather than have them arrest you. They will take you into custody and then to court on the next court day.
You can plead guilty to breaching your bail or plead not guilty and explain to the court. If the court accepts your guilty plea or finds you guilty, it will convict and sentence you for the breach—usually a fine. After you’re sentenced, you can reapply for bail if it was revoked.
‘Show cause’ position
Some bail breaches will put you in a 'show cause position', meaning you must show the court why you should be granted bail. This makes it more difficult to get bail again.
Such bail breaches include failing to appear in court, or committing an offence while on bail.
Changing bail conditions
If your bail undertaking states that police can vary your bail, you can apply to the police or court to vary or change your bail conditions.
If it doesn’t state this, you must apply to the court to vary your bail.
Variations can include changing your address, the police station you must report to, or the days or number of days you must report.
Extending your bail
If your court matter is adjourned to another day, you can ask the court to enlarge or extend your bail to that date and time. You do not need to sign a new bail undertaking if your bail is enlarged as your bail conditions will remain the same.