Bail hearings and decisions

If you are accused of committing an offence and the police charge you, you will either be:

• released on bail until you go to court to face a charge. This means you will be in the community and may have conditions
• denied bail and held in custody at a corrections facility until your court case. This is being on remand.

When you apply for bail the police, magistrate or judge will consider your case. They will decide if you are released on bail or go on remand, which means you go into custody.

There is a presumption of bail for most offences. This means you should get bail, unless there’s a good reason why you shouldn’t.

Bail can be for all types of offences. It is not a form of punishment or part of a sentence. It is an agreement to go back to court.

There is a presumption against bail for serious offences, for example murder or serious assault.

Bail hearings

For some offences the police can grant bail. If the police grant bail, you will be released from the police station and will not have a bail hearing at court. However, you will have to go to court for your hearing at a later date.

If the police do not grant bail, you will be held at the police station and taken to court for a bail hearing. This is usually the following morning.

Bail hearings are held in a dedicated bail court. You will be transported from the Police Watchhouse to court for your bail hearing.

If you are being held on remand at the Alexander Maconochie Centre, you may appear at your bail hearing by video link rather than in person.

Who is at the bail hearing

The people involved in the bail hearing are usually:

• a judicial officer - most bail decisions are granted by a judicial officer, who is a magistrate or judge at court.
• a prosecuting lawyer who provides information to the judicial officer about the alleged offence, community safety and victim and witness concerns. They will say if they support or oppose bail being granted, and what they consider the bail conditions should be if bail is granted.
• a defence lawyer who provides information to the judicial officer about the reasons bail should be granted. Before the bail hearing they will explain the charges and inform you if the prosecution plans on opposing bail.
• the defendant or person accused of the offence who is applying for bail.

Most bail hearings are open to the public, so there may be other people in the room. This could include court staff, lawyers waiting for the next hearing, or people who have an interest in the case. They must remain silent during the hearing.

The children’s court is closed to the public.

Bail decisions

The judicial officer will be given information about the case and the accused person to help them make their bail decision. This includes:

• a statement of facts - a document from the police about the offence charged and other information police think is important to consider, like safety
• a bail opposition form from the DPP, if the DPP plan to oppose bail
• the accused person’s criminal history

In addition to the above, the judicial officer will consider a range of information including:

• how serious the offence is
• if they believe the accused person is likely to attend their court case
• if it is likely the court will find the accused person guilty
• what the possible punishment is if the accused person is guilty
• if the accused person has broken any bail conditions before
• job, health and family, for example if the accused person cares for or supports any dependents financially
• the possibility that the accused person might commit offences while on bail
• the safety of victims and witnesses.

The police or the courts may refuse bail if they consider there is a high risk the accused person might either:

• not appear in court
• commit an offence if released on bail
• interfere with witnesses or evidence for the court case.

After the bail decision

If you are granted bail:

• you will be taken to the bail office to go through your bail conditions
• you will be given a copy of your bail conditions - it is important you keep this so you know what you can and can’t do while on bail
• you will be able to leave court.

If you are not granted bail, you will be placed on remand and transported to the Alexander Maconochie Centre.

Young people and bail

Bail laws also apply to children. A child is a person who is under 18 years old.

In the ACT the age of criminal responsibility for most criminal offences is 14 years old. A child aged 12 to 14 can only be charged with a small number of  very serious criminal offences against the laws of the ACT. However, they can still be charged with Commonwealth offences. This is because Commonwealth laws about the minimum age of criminal responsibility apply to Commonwealth criminal offences.

Bail decisions must consider the best interests of the child. Usually this will be to grant bail. Putting a child or young person into custody may only be used as a last resort and for the shortest time necessary.

Bail support for Aboriginal and Torres Strait Islander people

To support our Aboriginal and Torres Strait Islander community there are bail support services available.

These include:

• support through Front up if you have an outstanding warrant or have breached bail
• help from the Ngurrambai Bail Support program if you are on bail or applying for bail.

The Aboriginal Legal Service provides these services. You can:

• visit their website
• call the Canberra office on (02) 6120 8800.

Learn more about support services for Aboriginal and Torres Strait Islander people in the justice system and their families.

Bail education resources