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May 28, 2015

By Samantha D’Silva

Pursuant to section 28(2) of the Bail Act 1982 (WA), bail is an undertaking given by the accused in writing (in a prescribed form), that they will appear at Court at a specified time.

In addition to specifying when and where to attend Court, a bail undertaking may also include specific conditions which the accused is required to comply with, including but not limited to:

Residing at a particular location

Reporting at certain locations

Refraining from attending certain locations

Refraining from having contact with certain people (i.e. the victim or witnesses), or a class of people (i.e. children under 16 years of age), and

Refraining from leaving the state and surrendering your passport to the Court until the matter is dealt with.

The above conditions include reference to some protective bail conditions. Protective bail conditions are put in place to protect a victim, potential witnesses or the community in general.

Such conditions are dependent upon the nature of the charges against the accused.

What is a Surety and Will One be Needed?

In some circumstances a surety is required for bail. Pursuant to section 35 of the Bail Act 1982 (WA), a surety is a person who undertakes to forfeit a specified amount of money in the event an accused fails to comply with any requirement of his or her bail undertaking.

A surety must be over the age of 18, and provide proof that they can meet the amount they may become liable to forfeit (i.e. by providing a copy of a current rates notice of a property registered in the surety’s name, or a bank statement).

It is vital that an accused person understands and complies with their bail conditions.

What Happens in the Event of a Breach of Bail?

A breach of bail may result in a warrant for the arrest of the accused. The accused may then be held in custody until they can appear before the Court to explain the breach. The Court may grant bail again, or the accused may be held in custody pending the determination of their charge.

A breach of bail may also result in the accused forfeiting a sum of money, or the surety forfeiting a sum of money.

A breach of protective bail conditions is a serious offence in itself. We recommend obtaining legal advice immediately if you are charged, or believe you may be charged with a breach of protective bail conditions.

The Court has discretion to vary some bail conditions if it is satisfied that new circumstances have arisen, for example if the accused intends to reside at a different address.

Please contact Samantha D’Silva at our Gosnells office at in the event you are charged with a criminal or traffic offence, or require further information or legal representation regarding bail.