This article is a summary of what bail actually is and how it works in the Territory. Before we do that though, we first need to look at how criminal proceedings are initiated in the ACT. A lot of criminal proceedings, but particularly less serious ones, begin by way of summons – that is a piece of paper that tells a person they have to turn up to Court on a particular day to answer the charge(s). If a matter proceeds by way of summons, there is usually no bail at all.

Other criminal matters are instituted by way of arrest. In short, police should only arrest someone if proceeding by summons would not achieve 1 or more of these purposes:

• Ensuring the appearance of the person at court;
• Preventing repetition or continuation of the offence or other offences;
• Preventing concealment, loss or destruction of evidence relating to the offence;
• Preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
• Preventing the fabrication of evidence in respect of the offence;
• Preserving the safety or welfare of the person.
• In practise, police tend to arrest people far more often than they should and without necessarily being satisfied that one of the above purposes justifies an arrest.

If somebody is arrested for an offence, the police must first decide whether they would grant bail from the City Watch House. Generally, police refuse bail for all family violence matters and serious charges.

If a person is refused bail by the police, the Bail Act requires that they be brought before the ACT Magistrates Court as soon as possible, but no later than 48 hours after being taken into custody.

As a starting point, the Bail Act mandates an entitlement to bail for certain minor offences – offences that are not punishable by imprisonment, offences punishable by imprisonment for 6 months or less or for breaching the peace.

For very serious offences like murder or when somebody is already on bail for a serious offence and is alleged to have committed a further serious offence; generally, that person cannot get bail unless they satisfy the Court that special and exceptional circumstances exist. There is a whole lot that can be said about the special and exceptional circumstances test – but that is for another time. In short, it is a high threshold and is not easily satisfied.

For all other matters (this is where the majority of matters fall) – a person is entitled to be granted bail unless the Court is satisfied that the refusal of bail is justified after considering a number of criteria (we lawyers call these the section 22 criteria). For some less serious matters, there is a presumption for bail and for more serious matters or if the person has previous convictions for certain offences, the presumption can be neutralised.

The section 22 criteria are:

• The likelihood of a person appearing in court;
• The likelihood of the person doing one of the following when on bail:
• Committing an offence;
• Harassing or endangering the safety or welfare of anyone;
• Interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else;
• The interests of the person.

In considering these factors, the Court can have regard to:

• The nature and seriousness of the offence; or
• The person’s character, background and community ties; or
• The likely effect of a refusal of bail on the person’s family or dependants; or
• Any previous grants of bail to the person; or
• The strength of the evidence against the person.

The Court requires evidence going to the likelihood of not appearing in Court or committing further offences. Speculation is not good enough – nor should it be.

The Court can then impose bail conditions designed to address any risk identified during the assessment of the section 22 criteria – for example, if there is a risk the person won’t appear in Court, the Court may require the person to report to police on a regular basis or require another person to deposit money with the Court to guarantee their attendance). Other conditions routinely imposed include things like not contacting or staying away from the alleged victim or witnesses and residing at a particular address.

You will see from what I have set out above that there is a lot involved in the bail decision making process – and that is after I have tried to simplify it as much as possible in this explanation.

If you need advice regarding a bail matter, contact one of our highly experienced criminal lawyers at info@codalaw.com.au.