Bail Act Commentary Ss 1-18

GRADUATE DIPLOMA IN LEGAL PRACTICE
Criminal Law Practice
Lunn, R M (QC), 15 April 2015, Lunn’s Criminal Law South Australia, Lexis Nexis AU
– ss 1- 18
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Sourced: 15 April 2015 from Lunn’s Criminal Law South Australia
BAIL ACT 1985
BAIL ACT 1985

An Act to regulate the granting of bail.
PART 1 PRELIMINARY [ss 1-5]
[15,000] Short title
1 This Act may be cited as the Bail Act 1985.
COMMENTARY ON SECTION 1
Legislation cited in [15,000.1] below. LawNow subscribers click through for daily
updates and historical versions. (SA) Bail Act 1985 s 4.
[15,000.1] Inherent jurisdiction of the Supreme Court to grant bail

At common law the Supreme Court had an extensive inherent jurisdiction to grant bail: Forrest v
Huffa [1968] SASR 341 ; Ex parte Lewis (1972) 3 SASR 145 ; Ex parte Burke (1982) 30 SASR 278 ;
Dunstan v South Australia (1980) 24 SASR 64 . The Act is a code for the granting and refusal of
bail: Panagiotidis v Jakacic (1986) 41 SASR 591 at 592; 130 LSJS 465 ; Gray v Sweatman (1987)
45 SASR 517; 136 LSJS 431 ; R v Bennett (1986) 44 SASR 164 at 177 ; Webster v South Australia
(2003) 87 SASR 17; 230 LSJS 184; [2003] SASC 347; BC200305796 (Full Court).The Bail Act in
WA was held to be a complete code and thus excluding reference to the previous common law
in Milenkovski v WA (2011) 42 WAR 99; [2011] WASCA 99; BC201102278 . Quaere whether it
is a complete code, or whether it is limited to granting bail in respect of the persons described in
s 4: Zagar v Wright (1986) 41 SASR 452 at 455; 130 LSJS 248 .
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updates and historical versions. (SA) Bail Act 1985 ss 14, 15A.
[15,000.2] Appeals
There is no appeal against an order of a single judge of the Supreme Court in respect of an order
as to bail under the Act: Panagiotidis v Jakacic (1986) 41 SASR 591; 130 LSJS 465 ; Webster v
South Australia (2003) 87 SASR 17; 230 LSJS 184; [2003] SASC 347; BC200305796 (Full
Court). In relation to bail authorities other than the Supreme Court there are review procedures
to single judges of the Supreme Court under ss 14 and 15A of the Act.
[15,000.3] Bail on contempt charges

At common law there was no inherent power of the court to grant bail on a charge of contempt:
Ex parte Lewis (1972) 3 SASR 145 . By rr 15(5) and 16(2) and (3) of the Supreme and District
Court Civil Rules a Master cannot punish for contempt and it is unclear whether he or she has
any power to grant bail pending a contempt charge being dealt with.
[15,000.4] Bail in appeals pending to the High Court

In criminal cases the High Court will only grant bail in exceptional circumstances such as where
there are strong grounds for the appeal and the sentence will be substantially served before the
appeal is determined: United Mexican States v Cabal (2001) 183 ALR 645; [2001] HCA 60;
BC200106509 overruling Cabal v United Mexican States (No 2) (2001) 181 ALR 169; [2001]
HCA 43; BC200104277 ; Re Pinkstone's Applications (2003) 200 ALR 325; 77 ALJR 1561; [2003]
HCA 46; BC200304768 and [15,015.15]. The court may allow an unsuccessful application for
bail to be renewed after special leave has been granted by the High Court: R v Sinanovic (2001)
179 ALR 520; 122 A Crim R 524; [2001] HCA 35; BC200102954 . It is unlikely that the High
Court will grant bail pending a hearing of a special leave application against a refusal of bail
pending appeal by a state CCA when the substantive appeal has not yet been determined by the
State Court: Ettridge v DPP (Qld) (2003) 202 ALR 423; [2003] HCA 68; BC200306779 . See also
[15,015.15].
[15,000.5] Bail under the Extradition Act

Once bail has been refused under s 15(6) of the Extradition Act 1988 (Cth) there is no jurisdic-
tion to grant it under this Act: Schoenmakers v DPP (1990) 3 WAR 163 .
[15,000.6] Sentencing after absconding on bail

See [10,050.39(3)].
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[15,000.7] Costs on bail applications
Unless authorised by statute there is no power to make orders for costs on bail applications:
Cabal v United Mexican States (No 6) (2000) 174 ALR 747; 113 A Crim R 227; [2000] FCA 651;
BC200002485 .
updates and historical versions. (SA) Cross-border Justice Act 2009 ss 92-94.
[15,000.8] Bail under Cross-border Justice Act

As to bail provisions in Cross-border regions see ss 92-94 [74,340]-[74,445] of the Cross-border
Justice Act 2009.
[15,005] Commencement
2
[s 2 rep Act 23 of 1990 s 3 and Sch 2]
[15,010] Interpretation
(1) In this Act, unless the contrary intention appears--
ammunition
has the same meaning as in the Firearms Act 1977;
[def insrt Act 33 of 2012 s 4, effective 4 March 2013]
bail authority
means a court or person constituted as a bail authority by or under section 5;
case manager
means a person responsible for supervision of a person's participation in an inter-
vention program;
[def insrt Act 49 of 2005 s 4(1), effective 19 December 2005]
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Chief Executive Officer
has the same meaning as in the Correctional Services Act 1982;
[def insrt Act 12 of 2012 s 8, effective 17 June 2012]
child
means a person who was, on the day on which an offence was allegedly committed
by that person, under the age of 18 years;
[def insrt Act 33 of 1986 s 3]
community corrections officer

means--
(a) in relation to a child -- an officer or employee of an administrative unit

of the Public Service whose duties include the supervision of young of-
fenders in the community;
(b) in any other case -- an officer or employee of an administrative unit of
the Public Service whose duties include the supervision of adult of-
fenders in the community;
[def insrt Act 42 of 1999 Pt 3, effective 1 September 2000]
Editor's note:
This definition is modified by reg 10(1) of the Cross-border Justice Regulations 2009 No 253
which were made under the Cross-border Justice Act 2009 No 18. The object of the Act is to fa-
cilitate the administration of justice in cross-border regions (s 5). For the definition of
cross-border region, see reg 4. For the operation of such modifications see s 14 of the
Cross-border Justice Act 2009.
designated police facility

has the same meaning as in section 78 of the Summary Offences Act 1953;
[def insrt Act 60 of 2013 s 4, effective 1 October 2014]
eligible person
means a person who is eligible to apply for release on bail under section 4;
financial condition,
in relation to bail, means a condition requiring an applicant for bail to provide secu-
rity or obtain guarantees, or requiring a guarantor to provide security; and
"non-financial condition" has a correlative meaning;
firearm
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has the same meaning as in the Firearms Act 1977;
[def insrt Act 33 of 2012 s 4, effective 4 March 2013]
guarantee
means an agreement under section 7;
guarantor
means a person who enters into a guarantee;
guardian
, in relation to a child, means a parent of the child and any person who is the legal
guardian of the child or who has the immediate custody and control of the child;
[def insrt Act 33 of 1986 s 3]
intervention program
means a program that provides --
(a) supervised treatment; or

(b) supervised rehabilitation; or
(c) supervised behaviour management; or
(d) supervised access to support services; or
(e) a combination of any one or more of the above,
designed to address behavioural problems (including problem gambling), substance
abuse or mental impairment;
intervention program manager

means a person employed by the South Australian Courts Administration Authori-
ty to have general oversight of intervention programs and coordinate the imple-
mentation of relevant court orders (and includes a delegate of such a person);
Editor's note:
Regulation 10(2) of the Cross-border Justice Regulations 2009 No 253 modifies this Act by in-
serting the definition of police station.The Regulations were made under the Cross-border Jus-
tice Act 2009 No 18, the object of which is to facilitate the administration of justice in the
cross-border regions (s 5). For the definition of cross-border region, see reg 4. For the operation
of such modifications see s 14 of the Cross-border Justice Act 2009.
officer in charge
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, in relation to a police station, means the police officer for the time being in charge
of the police station;
responsible officer
, in relation to a police station, means--
(a) the officer in charge of the police station; or

(b) if a police officer has, for the time being, been designated by the officer
in charge of the police station as the officer with responsibility for per-
sons accepted into custody at the police station -- that officer;
serious and organised crime offence

has the same meaning as in the Criminal Law Consolidation Act 1935;
serious and organised crime suspect

-- see section 3A;
telephone
includes any telecommunication device for the transmission of speech;
victim
, in relation to an offence, means a person who allegedly suffers injury in conse-
quence of the commission of the offence;
[def am Act 32 of 1987 s 3]
working day
means any day except a Sunday or other public holiday.
[subs (1) am Act 33 of 1986 s 3 ; Act 32 of 1987 s 3]
(2) For the purposes of this Act, a person will be taken to have been convicted of an offence if
a formal finding of guilt has been made against that person by a court whether or not the court
proceeds to record a conviction.
[subs (2) insrt Act 33 of 1986 s 3 ; am Act 23 of 1990 s 3 and Sch 2]
Editor's note:
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Regulation 11 of the Cross-border Justice Regulations 2009 No 253 modifies this Act by inserting a
new s 3A. The Regulations were made under the Cross-border Justice Act 2009 No 18, the object
of which is to facilitate the administration of justice in the cross-border regions (s 5). For the defi-
nition of cross-border region, see reg 4. For the operation of such modifications see s 14 of the
[15,010.1] "Child"
In law children obtain the age of 18 at the first moment of the day preceding their eighteenth
birthday: Attorney-General v Smith (1985) 39 SASR 311 . As to spent convictions, see the Spent
Convictions Act 2009 at [76,000] et seq in Vol 3.
Legislation cited in [15,010.1A] below. LawNow subscribers click through for daily
updates and historical versions. (SA) Firearms Act 1977 s 5.
[15,010.1A] Firearms
For the meanings of "firearm" and "ammunition" see s 5 of the Firearms Act 1977 [90,020] in vol
3.
updates and historical versions. (SA) Guardianship of Infants Act 1940 s 4.
[15,010.2] "Guardian"
Under s 4 of the Guardianship of Infants Act 1940, the mother and father of a child jointly have
the guardianship and custody of the child and have equal power, authority, rights and responsi-
bilities with regard to the child subject to any court order to the contrary.
[15,010.2A] "Serious and organised crime offence" -- subs (1)
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See s 5(1) of the CLCA [5025].
updates and historical versions. (SA) Acts Interpretation Act 1915 s 4.
[15,010.3] "Working day"

By s 4 of the Acts Interpretation Act 1915 public holidays are those designated by, or proclaimed
under, the Holidays Act 1910. A Saturday is not ordinarily a public holiday unless some day,
which would otherwise be a public holiday, falls on a Saturday.
updates and historical versions. (SA) Criminal Law (Sentencing) Act 1988 s 15, s 3(2).
[15,010.4] "Convicted" -- subs (2)

"Conviction" may have more than one meaning, and there is a distinction between conviction
and sentence: Ex parte Burke (1982) 30 SASR 278 at 280 . See also [6435.4] and [45,025.4].
Under s 3(2) of the Criminal Law (Sentencing) Act 1988 [10,015] for the purposes of that Act a
person who pleads guilty to a charge is taken to have been found guilty of the offence unless
the plea is subsequently withdrawn or the person is judged incompetent to have made the plea.
Under s 15 of that Act a court has power to find a person guilty of an offence, but to dismiss the
charge without recording a conviction.
[15,010.5] "Intervention program"

The definition is the same as that in s 3 of the Sentencing Act [10,015].
[15,012] Serious and organised crime suspects
3A
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(1) A bail authority may determine that a person is a serious and organised crime suspect for
the purposes of this Act if the bail authority is satisfied, on application by the Crown, that--
(a) the person has been charged with a serious and organised crime offence; and
(b) the person was not, at the time of the alleged offence, a child; and
(c) the grant of bail to the person is likely to cause a potential witness, or other person
connected with proceedings for the alleged offence, to reasonably fear for his or
her safety.
(2) A determination by a bail authority that a person taken into custody on a charge of an of-
fence is a serious and organised crime suspect ceases to apply after 6 months if, at that time--
(a) the person has not been tried, or is not on trial, for the offence; and
(b) the trial of the offence is not subject to a determination of the Supreme Court or
the District Court under section 275(3) of the Criminal Law Consolidation Act 1935.
(3) Subsection (2) does not affect the operation of a bail agreement to which the person is
subject at the time at which the determination ceases to apply.
Note --
The person is, however, eligible to reapply for bail -- see section 4(1)(h).
Editor's Note:
The amendments to the Bail Act 1985 effected by Act 12 of 2012 only apply in relation to a person
taken into custody on a charge of an offence allegedly committed after 17 June 2012.
[s 3A insrt Act 12 of 2012 s 9, effective 17 June 2012]
COMMENTARY ON SECTION 3A
[15,012.1] History of s 3A
Section 3A was introduced as from 17 June 2012 by s 9 of the Statutes Amendment (Serious
and Organised Crime) Act 2012 No 12. By s 16 of that Act s 3A only applies to offences allegedly
committed after its commencement.
Editor's note:
Transitional provision
16
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The amendments to the Bail Act 1985 effected by this Part only apply in relation to a
person taken into custody on a charge of an offence allegedly committed after the com-
mencement of this Part.
[15,012.5] "Serious and organised crime offence"

See its definition in s 3 [15,010] and s 5(1) of the CLCA [5025].
[15,012.10] Section 275(3) of the CLCA -- subs (2)(b)

Section 275(3) [6385], which was introduced by s 38 of Statutes Amendment (Serious and Or-
ganised Crime) Act 2012 No 12, provides for trials within 6 months of the determination by the
Bail Authority.
[15,012.15] Retrospective orders under s 3A

By s 19A [15,101] the court may apply s 3A [15,012] to persons already released on bail and or-
der their arrest.
[15,012.20] Determination by bail authority -- form of the application -- s 3A

Pursuant to r 15.07 of the Criminal Rules, applications by the Crown under s 3A are required to
be in Form 8 and are to be supported by affidavit in which the deponent deposes to the matters
relied on by the Crown for the application.Rule 15.08 requires such application and the sup-
porting affidavit to be served upon the person the subject of the application. Although these
requirements can be dispensed with pursuant to r 2.03, given the draconian nature of the con-
sequences of a determination, rr 15.07 and 15.08 should be complied with and dispensations
from these rules will not be easily granted: R v Cekic, Niemann & Dettmann [2014]SADC 133 at
[11]-[13] per Judge Stretton.
[15,012.25] Grant of bail likely to cause a potential witness, or other person, to reasonably
fear for his or her safety -- s 3A(1)(c)
A combination of the offending, the circumstances surrounding it including the involvement of a
motorcycle club which is notorious for violent threatening behavior, and the refusal or failure of
many potential witnesses to assist would constitute material to satisfy this provision: R v Cekic,
Niemann & Dettmann [2014] SADC 133 at[32]-[33] per Judge Stretton. On review, (R v Cekic; R v
Dettman; R v Niemann [2014] SASC 132; BC201407424 ) Kelly J found that the plain wording
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of s 3A(1)(c) extended beyond persons who would actually be called as a witness and to the al-
leged victim in the case, and to the victim's wife from whom a statement had been obtained.
See also R v Ciantar [2014] SADC 179 per Judge Millstead, where a finding was made that the
defendant was likely to cause potential witnesses to reasonably fear for their safety.
[15,012.30] Discretion notwithstanding criteria in s 3A

Section 3A provides that if the criteria in the section are satisfied, the court 'may' determine
that the accused is a serious and organised crime suspect. Accordingly the court has a discretion
to make the determination, even if all three criteria are satisfied. In exercising any judicial dis-
cretion, the scheme of the legislation, its purpose and the consequences of the exercise of that
discretion must be considered. It is particularly the case where the consequences for the ac-
cused and for potentially intimidated witnesses are significant. A s 3A determination has three
primary effects. It affects the accused's ability to secure bail, it protects witnesses and those
connected with the proceedings, and it affects the passage to trial of the substantive charges
the accused faces: R v Cekic, Niemann & Dettmann [2014] SADC 133 at [34]-[36] per Judge
Stretton. On review, Kelly J rejected Dettman's application for a review of the order denying him
bail but granted Cekic and Niemann's applications: R v Cekic; R v Dettman; R v Niemann [2014]
SASC 132; BC201407424 , finding that a consideration of the personal circumstances of the
applicants together with the delay in their matter coming on for trial amounted to special rea-
sons for granting bail in the cases of Cekic and Niemann but not in the case of Dettman.
[15,012.35] Interrelationship of s 3A with s 10A of the Bail Act

Section 3A works in tandem with s 10A to modify the criteria for an accused's release on bail.
Because s 10A provides that where a person has been determined to be a serious and organised
crime suspect they cannot be granted bail unless they establish special circumstances justifying
the person's release on bail, and they are not eligible for bail at all if they have previously been
convicted of a serious and organised crime offence either here or in any other jurisdiction, a
determination pursuant to s 3A will have the immediate consequence of rendering it more dif-
ficult, and in some cases impossible, for an accused person to secure bail: R v Cekic, Niemann &
Dettmann [2014] SADC 133 at [38]-[39] per Judge Stretton. See also on review, R v Cekic; R v
Dettman; R v Niemann [2014] SASC 132; BC201407424 per Kelly J. Special circumstances
were found not to exist in R v Hogan [2014] SASC 117; BC201406893 per Kelly J.
updates and historical versions. (SA) Bail Act 1985 s 3A.(SA) Criminal Law Consolida-
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tion Act 1935 s 275, s 275(3).(SA) Supreme Court Criminal Rules 2013 12.08, 12.09,
15.07, 6.01, 6.02, 6.03.
[15,012.40] Interrelationship of s 3A with s 275 of the Criminal Law Consolidation Act and
the need to expedite the trial of an accused person to whom a determination applies
Where a determination has been made pursuant to s 3A, s 275 of the Criminal Law Consolida-
tion Act is activated. This affects the passage of the substantive charges to trial. Section 3A and s
275(3) of the Criminal Law Consolidation Act aim to expedite the trial of an accused person to
whom a determination applies, primarily due to the "harsh regime" concerning bail that a de-
termination applies to them. Accordingly, the likely time a person will be subject to a determi-
nation is in view relevant to the exercise of the discretion to make a determination: R v Cekic,
Niemann & Dettmann [2014] SADC 133 at [40]-[47] per Judge Stretton. See in this regard
Criminal Rules 6.01, 6.02, 6.03, 12.08, 12.09 and 15.07.
[15,015] Eligibility for bail
(1) The following persons are eligible for release on bail under this Act--
(a) a person who has been taken into custody--

(i) on a charge of an offence; or
(ii) in the case of a child -- on suspicion of having committed an offence;
(b) a person who has been convicted of an offence but has not been sentenced for that
offence;
(c) a person who has been convicted of, and sentenced for, an offence but has not ex-
hausted all rights of appeal against the conviction or sentence, or to have it re-
viewed;
(d) a person who is appearing before a court for allegedly failing to observe a condition
of a recognizance;
(e) a person who appears before a court in answer to a summons (including a person
who so appears as a witness);
(f) a person who has been arrested on a warrant and is appearing or is to appear be-
fore a court as a witness.
(g) a person arrested on a warrant issued under section 19A;
(h) a person who is no longer a serious and organised crime suspect because of the
operation of section 3A(2).
Editor's Note:
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The amendments to the Bail Act 1985 effected by Act 12 of 2012 only apply in relation to a per-
son taken into custody on a charge of an offence allegedly committed after 17 June 2012.
[subs (1) am Act 33 of 1986 s 3 ; Act 32 of 1987 s 4 ; Act 23 of 1990 s 3 and Sch 2 ; Act 62
of 1993 s 19 ; Act 12 of 2012 s 10, effective 17 June 2012]
(1a) A person who is eligible to apply for bail in accordance with subsection (1)(h) may so apply
despite the fact that he or she is already subject to a bail agreement (the previous bail agree-
ment) if, at the time of the previous bail agreement, the person was a serious and organised
crime suspect (and if a new bail agreement is entered into following such an application, the
previous bail agreement ceases to be in force).
Editor's Note:
[subs (1a) insrt Act 12 of 2012 s 10, effective 17 June 2012]
(2) If a person who has been arrested is being detained pursuant to the Summary Offences Act
1953 for a purpose related to the investigation of an offence, the person is not eligible for re-
lease on bail until the end of that detention.
[subs (2) insrt Act 32 of 1987 s 4 ; am Act 60 of 2013 Sch 1, effective 1 October 2014]
updates and historical versions. (SA) Bail Act 1985 s 3(1), s 3(2).
[15,015.1] Cross-references
Section 3(1): "child". Section 3(2):"convicted".
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updates and historical versions. (SA) Statutes Amendment and Repeal (Sentencing)
Act 1988 s 79.
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[15,015.2] "Recognizance" -- subs (1)(d)
The Sentencing Act uses the term "bond" and not "recognizance". Section 79 of the Statutes
Amendment and Repeal (Sentencing) Act 1988 (Act 51 of 1988) provides that a recognizance in
force under the provisions of the repealed legislation, other than a recognizance for the pur-
poses of bail, remains in force notwithstanding that repeal and is enforceable under and in ac-
cordance with the Criminal Law (Sentencing) Act 1988 as if it was a bond entered into under
that Act. Quaere whether a bond under the Criminal Law (Sentencing) Act 1988 is a "recogni-
zance" for the purpose of this Act.
updates and historical versions. (SA) Summary Offences Act 1953 s 78(2).
[15,015.3] Detention for investigation -- subs (2)

Where a person is detained under s 78(2) of the Summary Offences Act 1953 for investigation
into an offence, he or she need not be informed of his or her rights to bail: R v Fry (1992) 58
SASR 424; (1991) 161 LSJS 200 .
updates and historical versions. (SA) Criminal Law Consolidation Act 1935 s 350(7).
[15,015.5] Bail pending case stated

See s 350(7) of the Criminal Law Consolidation Act 1935 [7026].
updates and historical versions. (SA) Bail Act 1985 s 6(1).
[15,015.10] Mentally incompetent persons

Bail cannot be granted under the Act to persons who are not sufficiently mentally competent to
give the necessary undertaking under s 6(1) [15,025], but it would seem the court has an inher-
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ent jurisdiction to grant them bail: R v Ebatarinja (1999) 150 FLR 168; [1999] NTSC 41;
BC9901909 .
updates and historical versions. (SA) Bail Act 1985 s 4(1)(c).
[15,015.15] Bail pending special leave to appeal to the High Court

Section 4(1)(c) is wide enough to include bail pending an application for special leave to appeal
to the High Court and the principles laid down by the High Court apply (see [15,000.4]): R v Col-
lins (2002) 127 A Crim R 95; [2002] SASC 2; BC200200036 (Gray J).
[15,015.20] "Serious and organised crime suspect" -- subs (1)(g)(h) and (1a)
See its definition in s 3A [15,012].
[15,020] Bail authorities
(1) The following are constituted as bail authorities for the purposes of this Act:
(a) the Supreme Court;

(b) a court before which the eligible person has been charged with the offence in re-
spect of which the eligible person has been taken into custody;
(c) a court before which the eligible person has appeared for trial or sentencing;
(d) if the eligible person--
(i) is charged with a summary offence only; or
(ii) is charged with an indictable offence but has not appeared before a court for
trial or sentencing,
-- the Magistrates Court;
(e) if the eligible person--
(i) has been arrested on a warrant (other than a warrant endorsed by the
court or justice issuing the warrant with a statement excluding the granting
of bail by a police officer); or
(ii) has not appeared before a court charged with the offence in respect of
which he or she has been taken into custody,
a police officer who is--
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(iii) of or above the rank of sergeant; or
(iv) the responsible officer for a police station;
(ea) if the eligible person is appearing before a court in answer to a summons or for al-
legedly failing to observe a condition of a recognizance -- that court;
(eb) if the eligible person is appearing, or is to appear, as a witness before a court -- that
court;
(f) a person authorised or required to release the eligible person on bail under subsec-
tion (2).
[subs (1) am Act 32 of 1987 s 5 ; Act 23 of 1990 s 3 and Sch 2 ; Act 62 of 1993 s 20 ; Act
27 of 1995 s 4 ; Act 67 of 1996 s 4, effective 17 October 1996 ; Act 56 of 2005 Sch 2[7], ef-
fective 1 July 2006 ; Act 60 of 2013 s 5, Sch 1, effective 1 October 2014]
Editor's note:
Sub-section (1) is modified by reg 12 of the Cross-border Justice Regulations 2009 No 253 which
were made under the Cross-border Justice Act 2009 No 18. The object of the Act is to facilitate
the administration of justice in cross-border regions (s 5). For the definition of cross-border re-
gion, see reg 4. For the operation of such modifications see s 14 of the Cross-border Justice Act
2009.
(2) If a warrant for the arrest of a person is issued, the court or justice issuing the warrant may,
by endorsement on the warrant--
(a) authorise or require a specified person, or a person of a specified class, to release

the arrested person on bail; or
(b) exclude the granting of bail to the arrested person by a police officer.
[subs (2) subst Act 67 of 1996 s 4, effective 17 October 1996 ; am Act 60 of 2013 Sch 1,
effective 1 October 2014]
updates and historical versions. (SA) Bail Act 1985 s 4, s (1).
Section (1): "eligible person". Section 4 Acts Interpretation Act 1915: "justice" and "Supreme
Court"; "indictable offence" see [5025.4]; "recognizance" see [15,015.2].
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[15,020.2] Nature of the jurisdiction
A justice in exercising powers as a bail authority under the Act is not sitting as a court of sum-
mary jurisdiction unless he or she otherwise is constituted as such, and so the provisions of the
Justices Act about courts of summary jurisdiction, such as those relating to appeals, do not ap-
ply to such a justice exercising functions as a bail authority: Gray v Sweatman (1987) 45 SASR
517; 136 LSJS 431 ; Zagar v Wright (1986) 41 SASR 452; 130 LSJS 248 .
updates and historical versions. (SA) Domestic Violence Act 1994.(SA) Cross-border
Justice Regulations 2009 reg 12.(SA) Cross-border Justice Act 2009 ss 13, 14.
[15,020.3] Police bail -- subs (5)(e)

Police bail can be granted where a person has been arrested under the Domestic Violence Act
1994: Van Leeuwen v South Australia (1997) 191 LSJS 217; BC9701813 . By an amendment to
subs (e) as from 1 November 2009 by reg 12 of the Cross-border Justice Regulations 2009
[76,370], which has effect under ss 13 and 14 of the Cross-border Justice Act 2009
[73,110]-[73,115], Western Australian and Northern Territory police officers acting under that
Act can be bail authorities.
1 of 1 DOCUMENT: Criminal Law SA/Procedural Legislation/BAIL ACT 1985/PART 2 BAIL

AGREEMENTS AND GUARANTEES [ss 6, 7]
PART 2 BAIL AGREEMENTS AND GUARANTEES [ss 6, 7]
[15,025] Nature of bail agreement
(1) A bail agreement with a person who has been charged with, or convicted of, an offence is
an agreement under which that person makes an undertaking to the Crown--
(a) subject to any directions in the agreement to the contrary, to be present through-
out all proceedings--
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Page 20
(b) if the person has not been convicted of the offence -- relating to any prelimi-
nary examination of the charge and to the hearing and determination of the
charge;
(c) if the person is convicted of the offence -- relating to sentencing and to any
appeal from, or review of, the conviction or any sentence; and
(d)
(e) a police officer who is--
(b) of or above the rank of sergeant; or
(c) the responsible officer for a police station; or
(d)
(a) if the agreement so provides -- to forfeit to the Crown a sum stipulated in the
agreement if the person fails, without proper excuse, to comply with a term or con-
dition of the agreement.
[subs (1) am Act 23 of 1990 s 3 and Sch 2 ; Act 62 of 1993 s 21 ; Act 42 of 1999 Pt 3, ef-
fective 1 September 2000 ; Act 60 of 2013 s 6, Sch 1, effective 1 October 2014]
(1a) For the purposes of subsection (1) --
(a) a child who has been arrested on suspicion of having committed an offence will, for
so long as no charge is actually laid against the child, be taken to have been charged
with that suspected offence; and
(e) if the child is not charged with that suspected offence but with some other offence
arising out of the same circumstances as that suspected offence -- a bail agreement
entered into by the child relates to that other offence.
[subs (1a) insrt Act 33 of 1986 s 3 ; am Act 23 of 1990 s 3 and Sch 2]
(1b) A bail agreement with a person who is appearing or is to appear before a court as a wit-
ness in proceedings (other than proceedings relating to an offence for which that person has
been charged or convicted) is an agreement under which that person makes an undertaking to
the court--
(a) to be present at the proceedings in accordance with the terms of the agreement;
and
(e) to comply with any conditions as to the person's conduct while on bail stipulated in
the agreement; and
(a) if the agreement so provides -- to forfeit to the Crown a sum stipulated in the
agreement if the person fails, without proper excuse, to comply with a term or con-
dition of the agreement.
[subs (1b) insrt Act 62 of 1993 s 21]
(2) A bail agreement must be in the prescribed form.
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(3) If a bail authority decides to release a person on bail, the bail agreement may be entered
into before the bail authority or, unless the bail authority otherwise directs, before--
(a) a justice; or
(e) a police officer of or above the rank of sergeant or in charge of a police station; or
(a) if the person is in prison -- the person who is in charge of the prison; or
(b) any other person specified by the bail authority or any other person of a class speci-
fied by the bail authority.
[subs (3) subst Act 32 of 1987 s 6 ; am Act 60 of 2013 Sch 1, effective 1 October 2014]
Editor's note:
2009.
(4) Despite the provisions of any other Act, a bail authority may for any sufficient reason, on
the application of a person on bail or the Crown, or on its own initiative, vary the conditions of a
bail agreement or revoke a bail agreement.
[subs (4) subst Act 32 of 1987 s 6; am Act 17 of 2006 s 45 and Pt 11, effective 4 September
2006 ; Act 60 of 2013 Sch 1, effective 1 October 2014]
(5) If a bail authority revokes a bail agreement, the bail authority (not being a police officer)
may, if it is necessary to do so, issue a warrant for the arrest of the person who was released
under the agreement.
updates and historical versions. (SA) Bail Act 1985 s 21, s 3(1), s 3(2).
Section 3(1): "bail authority" and "child". Section 3(2): "convicted". Section 21: Proof of bail
agreement.
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[15,025.2] "Interlocutory nature" -- subs (1)(a)

As to interlocutory matters in indictable offences see R v Garrett (1988) 49 SASR 435 . As to the
meaning of "interlocutory" generally see Civil Procedure South Australia vol 1 [6R 4.80] and [6R
280.25].
[15,025.3] "Prescribed form" -- subs (2)

See [15,715] below for the form. Section 25 of the Acts Interpretation Act 1915 provides,
"Whenever forms are prescribed by any Act, forms to the same effect are sufficient provided
that deviations from the prescribed forms are not calculated to mislead".
[15,030] Guarantee of bail
(1) A guarantee of bail is an agreement with the Crown under which a person--
(a) guarantees that a person released under a bail agreement will comply with--
(b) all the terms and conditions of the agreement; or
(c) such of the terms and conditions of the agreement as are specified in the
guarantee; and
(d)
(e) undertakes that, if that person fails to comply with a term of condition of the bail
agreement to which the guarantee relates, he or she (the guarantor) will forfeit to
the Crown the sum (if any) specified in the guarantee.
[subs (1) am Act 23 of 1990 s 3 and Sch 2]
(2) A guarantee of bail must be in the prescribed form.
(3) A guarantee of bail may be entered into before the bail authority granting bail or, unless
the bail authority otherwise directs, before--
(a) a justice; or
(b) of or above the rank of sergeant; or
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Page 23
(c) the responsible officer for a police station; or

(d)
(a) if the person who is to be released on bail is in prison -- the person who is in charge
of the prison; or
(b) any other person specified by the bail authority or any other person of a class speci-
fied by the bail authority.
[subs (3) subst Act 32 of 1987 s 7 ; am Act 60 of 2013 s 7, effective 1 October 2014]
Editor's note:
2009.
(4) A bail authority may for any sufficient reason, on the application of a guarantor, vary the
terms of the guarantee or revoke the guarantee.
[subs (4) subst Act 32 of 1987 s 7]
(5) If a bail authority varies or revokes a guarantee, the bail authority may make such conse-
quential variation of the terms of the bail agreement, or revoke the bail agreement, as appears
appropriate in the circumstances.
(6) A guarantor of bail must be of or above the age of 18 years.

[subs (6) insrt Act 32 of 1987 s 7]
Editor's note:
Sub-section (6) is modified by reg 15(1) of the Cross-border Justice Regulations 2009 No 253
which were made under the Cross-border Justice Act 2009 No 18. The object of the Act is to fa-
cilitate the administration of justice in cross-border regions (s 5). For the definition of
cross-border region, see reg 4. For the operation of such modifications see s 14 of the
Regulation 15(2) of the Cross-border Justice Regulations 2009 further modify s 11 by inserting a
new subs (6a).
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updates and historical versions. (SA) Bail Act 1985 s 11(2)(d), (f), s 17A, s 19(1), s
19(3), s 21, s 3(1).
Section 3(1): "bail authority", "guarantee" and "guarantor". Section 11(2)(d) and (f): conditions
of bail concerning guarantors. Section 17A: guarantor to inform police if person fails to comply
with bail agreement. Section 19(1): estreatment of guarantee on default. Section 19(3): reduc-
tion or rescission of guarantee. Section 21: proof of guarantee.
updates and historical versions. (SA) Bail Act 1985 s 17A.
[15,030.1A] Purpose of guarantors

Guarantees motivate the guarantor to actually supervise compliance with the bail conditions
(which is beyond the obligation in s 17A see [15,090]) and act as a deterrent against breaches by
the defendant: R v Agius [2012] SASC 136; BC201206072 (Kourakis CJ), 16 July 2012. See al-
so Mokbel v Director of Public Prosecutions (2006) 14 VR 405; 170 A Crim R 179; [2006] VSC 487;
BC200610405 at [38] and [42] and R v Falanga [2014] SADC 21 at [55], Bampton J and follow-
ing.
[15,030.2] Multiple guarantors

Where there is more than one guarantor each should enter into a separate guarantee agree-
ment or care must be taken in the wording of a joint document that several obligations, and not
merely a joint obligation, are created: R v Rigney (No 2) (1988) 49 SASR 389; 146 LSJS 274 .
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updates and historical versions. (SA) Bail Act 1985 s 11(2)(e), s 9.(VIC) Bail Act 1977
s 9.
[15,030.3] Inquiry into suitability of proposed guarantor

Under the Act, a bail authority has power under s 9 (see [15,040]) to inquire into the means and
suitability of a proposed guarantor, but once the terms of bail are set a guarantor cannot be re-
quired to justify his means before being accepted as a guarantor: R v Rigney (No 2) (1988) 49
SASR 389; 146 LSJS 274 . Quaere whether "guarantees of a specified nature" in s 11(2)(e), or any
other provisions of the Act, change the previous law that the court cannot inquire into, or take
into account, the character or antecedents of a proposed guarantor: R v Barrett (1985) 37 SASR
512; 119 LSJS 293 . A guarantor may be approved who is a prosecution witness and where he
can only monitor the compliance of the defendant by telephone: R v Halas (2001) 81 SASR 1;
122 A Crim R 503; [2001] SASC 172; BC200103101 (Gray J). The Act does not impose obliga-
tions on a court or a person authorised to witness a guarantee to ensure that a guarantor un-
derstands their obligations under a guarantee. Furthermore, the Act is silent on the issue of va-
lidity of guarantees, compared to the more comprehensive provisions contained in interstate
equivalents of the Act, such as s 9 of the Bail Act 1977 (Vic): R v Falanga [2014] SADC 21,
Bampton J.
[15,030.4] Form of guarantee -- subs (2)

See the form at [15,720] below. See s 25 of the Acts Interpretation Act set out in [15,025.3]
above.
[15,030.5] Discharge of a guarantor

It would seem that a variation of the terms of bail without the consent of the guarantor does
not automatically revoke the guarantee: Thomakakis v Sheriff of NSW (1993) 33 NSWLR 36 .
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Page 2
PART 3 APPLICATIONS FOR RELEASE ON BAIL [ss 8-13]
DIVISION 1 APPLICATIONS GENERALLY [ss 8-12]
[15,035] Form of application
(1) Subject to subsection (1a), an application of a person for release on bail--
(a) must be in the prescribed form; and

(b) must contain the prescribed information; and
(c) must be made in accordance with any procedure prescribed by the regulations.
(1a) An application for release on bail need not be made in accordance with subsection (1)--
(a) if the bail authority is satisfied that a less formal application should be permitted in
view of the applicant's illiteracy, imperfect command of the English language, intel-
lectual limitations or for any other proper reason; or
(b) if the bail authority has access to an application previously made by the applicant
and considers that a further written application is unnecessary.
[subs (1a) insrt Act 32 of 1987 s 8 ; am Act 23 of 1990 s 3 and Sch 2]
(2) A person who has the custody of an eligible person must, at the request of that person--
(a) afford such assistance as that person reasonably requires to complete a written ap-
plication for release on bail; and
(b) if the custodian is not a bail authority -- transmit the application as soon as practi-
cable to a bail authority.
(2a) If the eligible person is a child, a request may be made on behalf of the child under sub-
section (2) by a guardian of the child.
[subs (2a) insrt Act 33 of 1986 s 3 ; am Act 60 of 2013 Sch 1, effective 1 October 2014]
(3) If a written application for release on bail comes before a bail authority for determination,
the bail authority may proceed to consider and determine the application despite the fact that
the application was made in the first instance to some other bail authority.
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[subs (3) am Act 23 of 1990 s 3 and Sch 2 ; Act 60 of 2013 Sch 1, effective 1 October 2014]
updates and historical versions. (SA) Bail Act 1985 s 3(1).(SA) Bail Regulations 2000.
Section 3(1): "bail authority", "child" and "guardian". The regulations are at [15,605].
updates and historical versions. (SA) Bail Regulations 2000 [15,725].(SA) Acts Inter-
pretation Act 1915 s 25.
[15,035.2] Form of application -- subs (1)(a)

The form is set out at [15,725]. See s 25 of the Acts Interpretation Act 1915 in [15,025.3].
[15,035.3] Further applications for bail

Even if bail is refused the defendant may make a further application where circumstances have
changed: Dunstan v DPP (1999) 107 A Crim R 358; [1999] FCA 921; BC9903896 ; Cabal v United
Mexican States (No 2) (2000) 171 ALR 305; [2000] FCA 445; BC200001660 . Changed circum-
stances are not a prerequisite for the further application, but they will usually be needed to
cause another judge to take a different view of the matter: Cabal v United Mexican States
(2001) 111 FCR 418; 182 ALR 225; [2001] FCA 97; BC200100686 ; Webster v South Australia
(2003) 87 SASR 17; 230 LSJS 184; [2003] SASC 347; BC200305796 (Full Court). In Queensland
it has been held a second application for bail cannot succeed unless there has been a change in
circumstances since the first: Sica v DPP [2011] 2 Qd R 254; [2010] QCA 018; BC201000582 . In
the Australian Capital Territory, it was held that where bail was refused because of a risk that
the applicant might commit further offences, it might later be proper to grant bail where there
had been a delay by the prosecution in progressing the proceedings such that the period during
which the applicant had been in custody well exceeded any sentence that could be imposed
were he to be convicted of the evidence in respect of which bail has been refused. It was further
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held in that case that information known to the applicant but not adduced in a bail application
cannot be relied upon as a change of circumstances in a subsequent bail application: Re Applica-
tion for Bail by Sebbens [2014] ACTSC 281; BC201409448 at [24] and [34] per Refshauge J.
See also [15,055.1].
updates and historical versions. (SA) Evidence Act 1929 s 59IQ.
[15,035.4] Audio visual link hearings of bail applications in the Supreme Court
See s 59IQ of the Evidence Act [1421Q] and rr 3.06 and 3.07 of the Supreme Court Criminal
Rules 1992 [23,015].
[15,040] Power of bail authority to make inquiries and to hear evidence
(1) Subject to this section, a bail authority to which an application for release on bail is made--
(a) may make inquiries, or direct that inquiries be made, of the applicant and other
persons who may be able to furnish information relevant to the determination of
the application; and
(b) if the authority (not being a police officer) thinks fit -- may take evidence on oath
from the applicant or any other person who may be able to furnish information
relevant to the determination of the application.
[subs (1) am Act 60 of 2013 Sch 1, effective 1 October 2014]
(2) If a bail authority takes evidence, or proposes to take evidence, on oath under subsection
(1)(b), it must at the request of the applicant or the Crown permit such examination,
cross-examination or re-examination of the witness as may be appropriate in the circumstances.
[15,040.1] General
See [15,020.2] above.
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updates and historical versions. (CTH) Telecommunications (Interception and Ac-
cess) Act 1979.
[15,040.5] Evidence on bail applications

Evidence obtained from a telephone interception to which the Telecommunications (Intercep-
tion) Act 1979 (Cth) applies is not admissible in bail proceedings: DPP (NSW) v Serratore (1995)
38 NSWLR 137; 81 A Crim R 363 .
[15,040.10] "Make inquiries" -- subs (1)(a)

The inquiry should include the financial worth of the proposed guarantors so that they are not
over extended in the amount which they have to pay if the defendant defaults: R v Agius
[2012]SASC 136; BC201206072 at [15] (Kourakis CJ), 16 July 2012.
[15,045] Discretion exercisable by bail authority
10
(1) If an application for bail is made to a bail authority by an eligible person who has been
charged with, but not convicted of, an offence in respect of which he or she has been taken into
custody, the bail authority should, subject to this Act, release the applicant on bail unless, hav-
ing regard to--
(a) the gravity of the offence in respect of which the applicant has been taken into
custody; and
(b) the likelihood (if any) that the applicant would, if released--
(d) abscond; or
(e) offend again; or
(a) interfere with evidence, intimidate or suborn witnesses, or hinder police in-
quiries; or
(b) commit a breach of an intervention order under the Intervention Orders
(Prevention of Abuse) Act 2009; and
(c)
(c) [repealed]
(i) any need that the applicant may have for physical protection; and
(ii) any medical or other care that the applicant may require; and
any previous occasions on which the applicant may have contravened or failed to
comply with a term or condition of a bail agreement; and
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(d) any other relevant matter,

the bail authority considers that the applicant should not be released on bail.
[subs (1) am Act 23 of 1990 s 3 and Sch 2 ; Act 62 of 1993 s 22 ; Act 22 of 1994 Sch ; Act
85 of 2009 Sch 1 cl 2, effective 9 December 2011 ; Act 60 of 2013 Sch 1, effective 1 October
2014]
(2) If the applicant has been convicted of the offence in respect of which he or she has been
taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to
whether the applicant should be released on bail.
(3) If the applicant is a person who is appearing or is to appear before a court as a witness in
proceedings (other than proceedings relating to an offence for which that person has been
charged or convicted), the bail authority should, subject to this Act, release the applicant on bail
unless there is a likelihood that the applicant would, if released, abscond.
[subs (3) insrt Act 62 of 1993 s 22 s 3 and Sch 2 ; am Act 60 of 2013 Sch 1, effective 1
October 2014]
(4) Despite the other provisions of this section, if there is a victim of the offence, the bail au-
thority must, in determining whether the applicant should be released on bail, give primary
consideration to the need that the victim may have, or perceive, for physical protection from
the applicant.
[subs (4) insrt Act 22 of 1994 Sch ; am Act 60 of 2013 Sch 1, effective 1 October 2014]
Section 3(1): "bail authority" and "eligible person".
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[15,045.2] Criteria for granting bail

The criteria differ from the previous common law and the "discretion that the bail authority ...
would exercise, is one based on the fact that bail should be granted and the applicant released
unless the factors set out in ... s 10 persuade the bail authority ... that the applicant should not
be released on bail": Farquar v Fleet (1989) 50 SASR 490 particularly at 493 . Bail must not be
refused to punish a defendant: R v Roberts (1997) 97 A Crim R 456 . Ordinarily bail should be
granted if in the opinion of the bail authority it is likely that the applicant will attend at the trial:
R v Duke [1999] SASC 431; BC9906754 (Lander J), 24 September 1999. Applications for bail
should not be granted where the object is not to obtain release on bail but to circumvent prison
regulations: R v Collins (2002) 127 A Crim R 95; [2002] SASC 2; BC200200036 (Gray J). Bail
should not usually be granted after a plea of guilty to an offence which warrants imprisonment:
R v Melbourne (2002) 132 A Crim R 318; [2002] SASC 277; BC200204627 (Bleby J). The scope
of a bail hearing is broader and more informal than ordinary criminal proceedings, and the rules
of evidence are not strictly enforced: R v Collie (No 2) (2002) 220 LSJS 236; [2002] SASC 247;
BC200204292 ; R v Iskra [2002] SASC 334; BC200206468 (Lander J), 30 September 2002.
updates and historical versions. (SA) Bail Act 1985 s 10, s 20(2).
[15,045.3] Refusal of bail pending pre-sentence report etc

Where there is a delay between a plea of guilty or a conviction and imposing sentence s 10
should be employed to allow the defendant to be released on bail in the interval unless it is
clear that an unsuspended custodial sentence is obviously required: Lavers v Fauser (1986) 41
SASR 593; 130 LSJS 388 . Section 20(2) of the Act, which was relied on in part in that decision,
was repealed by amendment Act 30 of 1987. A remand in custody pending the passing of sen-
tence is permissible in appropriate cases: Ex parte Burke (1982) 30 SASR 278 ; Ex parte Rundle
(1982) 30 SASR 282 , but not where an actual custodial sentence for the offence was inappro-
priate: Buttigieg v Police (1999) 74 SASR 229; [1999] SASC 276; BC9904438 .
[15,045.4] "Gravity of the offence" -- subs (1)(a)

On a charge of murder exceptional grounds are not required for bail, and R v Martin (1980) 23
SASR 233 does not apply under the Act: Farquar v Fleet (1989) 50 SASR 490 , but it has been
very unusual for courts to grant bail on a charge of murder: South Australia v Machin (1992) 163
LSJS 377 ; R v O'Donnell [2000] SASC 413; BC200007528 (Lander J), 23 November 2000. The
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onus is on the defendant to show circumstances justifying a departure from the normal rule
that there should be no bail in murder cases: Milenkovski v WA (2011) 42 WAR 99;
[2011]WASCA 99; BC201102278 . The granting of bail in murder cases has become more fre-
quent, and particularly with conditions of home detention: R v Halas (2001) 81 SASR 1; 122 A
Crim R 503; [2001]SASC 172; BC200103101 (Gray J). Delay which is not the fault of the de-
fendant is a ground on which bail can be granted on a murder charge: R v Duke [1999] SASC 431;
BC9906754 (Lander J), 24 September 1999 and even prospective delay is more significant than
retrospective: R v Karger [2000] SASC 14; BC200000672 (Mullighan J). Bail was refused on a
murder charge where the accused had only a short life expectancy as a result of an attempted
suicide and wanted to die out of gaol: Dodd v R (2002) 135 A Crim R 545; [2002] WASC 282;
BC200207138 . Bail for a limited period may be granted on a murder charge on compassionate
grounds such as where the accused's spouse was terminally ill: R v Encheff [2004] SASC 200;
BC200404230 (Gray J), 20 January 2004. The fact of the offence being apparently deliberate
on the depositions was taken into account in assessing the gravity of the offence in R v Schmidt
(2002) 221 LSJS 299; [2002] SASC 304; BC200205189 .
[15,045.4A] The likelihood (if any) -- subs (1)(b)

Subs (1)(b) does not mean that the presumption of bail is only displaced if the court finds it
more likely than not the requisite events will occur, but rather the greater the likelihood of
those events happening the more inclined the court will be to hold the presumption for bail is
displaced: R v IMH [2006] SASC 94; BC200601703 (Bleby J), 17 March 2006.
[15,045.5] "Abscond" -- subs (1)(b)(i)

The fact that the accused was bankrupt was not regarded as a sufficient indication of a likeli-
hood to abscond so as to refuse bail in Farquar v Fleet (1989) 50 SASR 490 . Persons who are
overseas citizens are not by that reason alone to be presumed at risk of flight: Re Kurt (1999)
107 A Crim R 424; [1999] ACTSC 91; BC9905550 . Bail should be granted where the risk of ab-
sconding does not outweigh the benefit of the defendant being at liberty to instruct his or her
lawyers properly: R v Clarke II (2001) 118 A Crim R 585; [2001] ACTSC 39; BC200102215 .
Where there is an unacceptable risk of flight overseas the delay before trail would need to be
great to allow bail: Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717; [2009]
VSCA 26; BC200901132 .
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[15,045.5A] "Offend again" -- subs (1)(b)(ii)

For subs (1)(b)(ii) to operate it does not require that there must have been some past proven
offending but only the likelihood of future offending by the defendant: R v ACP [2005] SASC 451;
BC200510233 (Bleby J), 29 November 2005. In Hewat v R [2013] VSC 642 at [29] , bail was re-
fused under the Victorian Bail Act 1977 as the applicant was found to be an unacceptable risk if
released of committing a further offence on bail. He had been charged with threatening a pros-
ecution witness. The concept of "unacceptable risk" was incorporated into s 17(3) of the New
South Wales Bail Act and predictive evaluations of risk have been discussed in cases under other
bail regimes see for example Williams v DPP [2001] 1 QR 99; Dale v DPP [2009] VSCA 212;
BC200908579 and Woods v DPP [2014] VSC 1; BC201400057 : see R v Alexandridis [2014]
NSWSC 662; BC201403896 at [33]-[34] per Hamill J. In the Australian Capital Territory. it was
held that the ground of objection that there was a risk that the defendant would re-offend was
one that must be treated with care: Re Application for Bail by Sebbens [2014] ACTSC 281;
BC201409448 at [36] per Refshauge J. In Dunstan v Director of Public Prosecutions (1999) 92
FCR 168; 107 A Crim R 358 at 374; BC9903896 per Gyles J, with whom Whitlam and Madg-
wick JJ agreed said at [56] that a refusal of bail upon the basis of protection of the community,
including the likelihood of committing further offences alone was tantamount to preventive
detention, and was a cogent reason for not permitting a finding to be made on the basis of sus-
picion or speculation. See also Re Application for Bail by Seears [2013] ACTSC 187;
BC201312625 .
[15,045.5B] "Interfere with evidence, intimidate or suborn witnesses" -- subs (1)(b)(iii)

Bail was refused under the similar provisions of s 4(2)(d) of the Victorian Bail Act 1977 when
there was evidence through telephone intercepts that the defendant had previously shown a
willingness to deal violently with others, inevitably including a number of his co accused and
witnesses, and on other grounds, notwithstanding that he would be spending 2 years in custody
prior to his trial: Re Application for Bail By Robinson [2015] VSC 5; BC201500050 at [54]-[56]
per J Forrest J. In an Australian Capital Territory case, the court held that uncertainity as to
whether the defendant posed any actual threat or interference to witnesses minimised such a
likelihood and was a relevant factor to take into account in granting bail: Re Application for Bail
by Le Clair [2014] ACTSC 245; BC201408819 at [65]-[69] per Refshauge J.
[15,045.6] "Other relevant matter" -- subs (1)(g)

In the authorities prior to the Act the court could take into account the previous convictions of
the accused, and quaere whether that applies under the Act: R v Barrett (1985) 37 SASR 512 at
513; 119 LSJS 293 ; R v Gay [1969] SASR 467 . The probability of conviction for the offence
charged is not in itself a relevant criterion under s 10(1): R v Hepworth (2002) 224 LSJS 1; [2002]
SADC 153 . Delay by the prosecution in having its evidence available at the appropriate time
may justify bail being granted: South Australia v Machin (1992) 163 LSJS 377 ; Mokbel v DPP (No
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3) (2002) 133 A Crim R 141; [2002] VSC 393; BC200208307 ; Re Application for Bail by Peter
John Hewat [2014] VSC 240 . Parity with co-offenders is a relevant consideration so that there is
no unequal treatment of them without good reason: R v Abbott (1997) 97 A Crim R 19 ; R v
Easton [2002] SASC 59; BC200201471 (Gray J), 8 March 2002. In Victoria it has been held
that substantial delay between the offence and the arrest and between the arrest and the trial
can be relevant to granting bail: Beljajev v DPP (1998) 101 A Crim R 362 , but it can still be re-
fused where other factors outweigh the delay: R v Pinkstone (2000) 114 A Crim R 377 ; Director
of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717; [2009] VSCA 26; BC200901132 . Delay
may not be a relevant factor where it has been caused by the defendant's conduct of the de-
fence: Botha v R (1998) 104 A Crim R 150; BC9806204 . Bail was restricted for a tribal Aborigi-
ne to avoid him being subject to violent traditional punishment for his offence if released on bail
unconditionally: Re Anthony (2004) 179 FLR 354; 142 A Crim R 440; [2004] NTSC 5;
BC200400346 .
[15,045.7] "Convicted" -- subs (2)

See [15,010.4] above.
updates and historical versions. (SA) Bail Act 1985 s 10(2), s 11(2)(a)(1a).
[15,045.8] Bail pending appeal on indictable offences -- subs (2)

See [7100.2] above. An application to put forward fresh evidence before the Court of Criminal
Appeal on an appeal against sentence can be taken into account in allowing bail pending the
appeal: R v Amuso (1987) 137 LSJS 258. Under s 10(2) the court must exercise a judicial discre-
tion and bail is not to be confined to where there are special or exceptional circumstances: R v
Baker [2000]SASC 281; BC200004948 (Gray J), 24 July 2000; R v Frederick [2004] SASC 304;
BC200406239 (Sulan J), 20 September 2004, but there are earlier authorities to the contrary:
eg McLeod v Fauser (1986) 42 SASR 356 at 358-9; 132 LSJS 278 . Where such bail can be made
subject to home detention conditions under s 11(2)(a)(1a) [15,050] it can be more readily
granted: R v Blayney [2002] SASC 184; BC200203350 (Gray J), 7 June 2002. Bail may be re-
fused for other factors even where the appellant has a strong, although not an unanswerable,
case on the appeal: R v Kostaras [2002] SASC 231; BC200204013 (Bleby J), 18 July 2002.
There is a public interest in not making it appear that a conviction is only contingent until it is af-
firmed on appeal: R v McKelliff [2003] SASC 357; BC200306094 (Gray J), 16 October 2003. In
a NSW case where the Bail Act required that bail was not to be granted or dispensed with where
the appeal was against sentence unless special or exceptional circumstances existed, the court
awarded bail where it had indicated that leave to appeal would be granted, the appeal would be
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Page 11
allowed, and the applicant would be re-sentenced in terms which would not require him to
serve any further period in custody: RCW v R [2014] NSWCCA 145 at [6] .
[15,045.9] Bail pending appeal on summary offences

The old rule in indictable offences that bail should only be granted in exceptional circumstances
does not apply, and the court can exercise an unfettered discretion in deciding whether to grant
bail or not: McLeod v Fauser (1986) 42 SASR 356; 132 LSJS 278 ; Peake v McDonald (1988) 146
LSJS 495 (which said that Beshara v Paphitis (1987) 136 LSJS 16; BC8700342 (Cox J) was not
to be followed on this point); Cameron v Millard (1978) 19 SASR 161 . On bail between convic-
tion and sentencing the court can remand the defendant in custody without necessarily intend-
ing to impose a custodial sentence if that is just in the circumstances: Abdilla v Police [2003]
SASC 312; BC200305325 (Besanko J), 4 September 2003. It was previously held that where
an appellant was released on bail pending an appeal under the repealed s 170 of the Justices
Act 1921 the running of the sentence was suspended pending the determination of the appeal:
Grey-Pagin v Duthie (1987) 47 SASR 493; 140 LSJS 199 . See s 23 [15,125]for the present posi-
tion.
updates and historical versions. (SA) Victims of Crime Act 2001 s 5, s 7.
[15,045.10] Protection of victims -- subs (4)

The considerations in subs (4) override the presumption of bail in subs (1), but the perception of
the victim must be reasonable and the victim's need for the protection must be established
both subjectively and objectively: R v Blair [2001] SASC 430; BC200108225 (Gray J), 21 De-
cember 2001. Subsection (4) does not reverse the onus of proof that bail must be granted un-
less there is good reason not to do so, and bail is only to be refused where the protection of a
victim is the most important factor on the relevant competing considerations: R v Dunstan
[2010] SASC 12; BC201000337 (Kourakis J), 29 January 2010. See also s 7 of the Victims of
Crime Act 2001[51,580] which applies subject to s 5 of that Act [51,545].
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[15,048] Presumption against bail in certain cases
10A
(1) Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant
establishes the existence of special circumstances justifying the applicant's release on bail.
(1a) An applicant who is a serious and organised crime suspect will not be taken to have estab-
lished that special circumstances exist for the purposes of subsection (1) unless the applicant
also establishes, by evidence verified on oath or by affidavit, that he or she has not previously
been convicted of--
(a) a serious and organised crime offence; or

(b) an offence committed in another jurisdiction that would, if committed in this juris-
diction, have been a serious and organised crime offence.
Editor's Note:
[subs (1a) insrt Act 12 of 2012 s 11, effective 17 June 2012]
(2) In this section--
prescribed applicant
means--
(e) an applicant taken into custody in relation to any of the following of-
fences if committed, or allegedly committed, by the applicant in the
course of attempting to escape pursuit by a police officer or attempting
to entice a police officer to engage in a pursuit:
(f) an offence against section 13 of the Criminal Law Consolidation
Act 1935 in which the victim's death was caused by the appli-
cant's use of a motor vehicle;
(g) an offence against section 19A of the Criminal Law Consolidation
Act 1935;
(h) an offence against section 29 of the Criminal Law Consolidation
Act 1935 if the act or omission constituting the offence was done
or made by the applicant in the course of the applicant's use of a
motor vehicle; or
(iii)
(iv) an applicant taken into custody in relation to an offence against section
17 if there is alleged to have been a contravention of, or failure to
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comply with, a condition of a bail agreement imposed under section

11(2)(a)(ii); or
(ea) an applicant taken into custody in relation to an offence against section
31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act
or omission alleged to constitute the offence involved physical violence
or a threat of physical violence; or
(eb) an applicant who is a serious and organised crime suspect;
(c) an applicant taken into custody in relation to an offence of contraven-
ing or failing to comply with a control order or public safety order is-
sued under the Serious and Organised Crime (Control) Act 2008; or
(d) an applicant taken into custody in relation to an offence against any of
the following provisions of the Criminal Law Consolidation Act 1935:
(f) section 172;
(g) section 248;
(h) section 250;
(iv) section 85B;
(iii)
or
(e) an applicant taken into custody in relation to a serious firearm offence

(within the meaning of Part 2 Division 2AA of the Criminal Law (Sen-
tencing) Act 1988).
Editor's Note:
[def am Act 12 of 2012 s 11, effective 17 June 2012]
[subs (2) subst Act 13 of 2008 Sch 1 item 2, effective 4 September 2008 ; am Act 73 of 2009
s 3, effective 10 December 2009 ; Act 85 of 2009 Sch 1 cl 3, effective 9 December 2011 ; Act 60
of 2013 Sch 1, effective 1 October 2014]
[s 10A insrt Act 81 of 2005 s 13 and Pt 3, effective 30 July 2006 ; am Act 33 of 2012 s 5, effec-
tive 4 March 2013]
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updates and historical versions. (SA) Bail Act 1985 subs (2), para (b).
[15,048.1] History of s 10A

A new subs (2) was substituted as from 17 July 2008 by s 4 of the Statutes Amendment (Victims
of Crime) Act 2007 No 48 in which para (b) was new.
[15,048.3] "Serious and organised crime suspect" and "serious and organised crime offence"
-- subs (1a) and (2)(bb)
"Serious and organised crime suspect" is defined in s 3A [15,012] and "serious and organised
crime offence" in s 3 [15,010] and [5025]. By s 16 of the Statutes Amendment (Serious and Or-
ganised Crime) Act 2012 No 12 subs (1a) and (2)(bb) only apply to offences allegedly committed
after the commencement of Statutes Amendment (Serious and Organised Crime) Act 2012 No
12 on 17 June 2012.
updates and historical versions. (SA) Criminal Law (Sentencing) Act 1988 s 20AA(1).
[15,048.4] Serious firearm offence -- subs (2)(e)

See s 20AA(1) of the Sentencing Act [10,100A] in vol 1. Subsection (2)(e) does not require the
court to find that the applicant has committed a serious firearms offence, but merely that one is
alleged against him or her: R v Lombardi (2013) 115 SASR 577; [2013] SASC 61; BC201309517
(Kourakis CJ), 16 April 2013. It was found that a person was not a prescribed applicant when the
prosecution had failed to satisfy the court of a connection between a firearm offence and a se-
rious drug offence pursuant to the Sentencing Act s 20AA(1)(d): R v Briggs [2014] SASC 62 at
[17] .
[15,048.5] "Special circumstances" -- subs (1)

See the commentary on s 3A of the Bail Act at [15012.1]-[15012.40] above.
The court should take a wide and flexible approach to determining any special circumstances.
Section 10A is to be interpreted by having regard to the principle that defendants are presumed
innocent and are only to be held in custody if they cannot establish the necessary special cir-
cumstances: R v Buhlmann [2010] SASC 123; BC201002645 (Sulan J), 3 May 2010; R v Lom-
bardi (2013) 115 SASR 577; [2013] SASC 61; BC201309517 ; R v Shamseddini [2013] SADC 156
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Page 15
at [6] (Slattery J); R v Briggs [2014] SASC 62 (Sulan J). The words "special circumstances"
should be given their natural and ordinary meaning and not read in a restrictive manner be-
cause they are wide, comprehensive, and flexible words: R v Buhlmann [2010] SASC 123;
BC201002645 at [2] (Sulan J), 3 May 2010; Saywell v Yiu (1976) 14 SASR 56 at 58 ; R v Sham-
seddini [2013] SADC 156 at [6] (Slattery J). Each matter turns on its own particular facts and the
words "special circumstances" cannot be comprehensively or exhaustively defined, although the
rationale of the provision is clear enough: R v Buhlmann [2010] SASC 123; BC201002645 at [5]
(Sulan J), 3 May 2010; R v Lombardi (2013) 115 SASR 577; [2013] SASC 61; BC201309517 at
[20] and R v Shamseddini [2013] SADC 156 at [6] (Slattery J). In the context of s 10A, the pur-
pose of which is to protect the community from releasing on bail persons who inherently pose a
relatively high risk to the public, special circumstances (which include the applicant's personal
circumstances) exist where the applicant's circumstances place him or her outside of the con-
templated risk referred to above: R v Lombardi [2013]SASC 61; BC201309517 (Kourakis CJ),
16 April 2013. Parliament views very seriously the circumstances of any offence where some-
body threatens a person involved in judicial proceedings with the intention of intimidating that
person in a way that might influence the outcome of those proceedings. In those circumstances,
the section prescribes a presumption against bail in such cases: R v Shamseddini [2013] SADC
156 at [22] (Slattery J). On similar but not identical legislation in the Australian Capital Territory,
it was held that it was necessary to find circumstances, which were in some way unusual or un-
common: Re Application for Bail by Islam (2010) 4 ACTLR 235; 244 FLR 158; [2010] ACTSC 147;
BC201008719 (Penfold J). On similar legislation in the Northern Territory it was held the
strength of the prosecution case was a prime, but not an exclusive, consideration on whether
the presumption was displaced: R v Wilson (2011) 29 NTLR 83; [2011] NTSC 15; BC201100939 ,
but on the position in the Northern Territory see also R v Williams (2012) 32 NTLR 97; [2012]
NTSC 47; BC201205156 . On similar legislation in WA where the criterion was "exceptional
circumstances" bail was refused because of the seriousness of the charges and the defendant's
criminal history, even though the defendant's case could be better prepared if he was on bail:
Neumann v WA (2011) 213 A Crim R 175; [2011] WASC 173; BC201105443 .
"Special circumstances" is a phrase wide enough to encompass a circumstance not contemplat-
ed by the legislature, namely a lengthy detention in custody pending a trial. However the need
for a very cautious approach is recognised. They were established in R v Cekic; R v Dettman; R v
Niemann [2014] SASC 132; BC201407424 per Kelly J. In that case, respect to each of the ap-
plicants, the criteria in s 3A of the Bail Act were met, and in the circumstances of the applicants
Cekic and Niemann, the delays caused, which resulted in them spending approximately 696 days
in custody between arrest and trial, together with other relevant considerations amounted to
special circumstances justifying their release on bail. However in the case of the applicant
Dettman, although he had also been the subject of inordinate delay, that delay in the light of all
other relevant considerations, in particular his extensive criminal history, did not give rise to
special circumstances. Special circumstances were found not to exist in R v Hogan [2014] SASC
117; BC201406893 per Kelly J where the applicant was found on the streets armed with a
loaded shotgun, carried three different illicit drugs, and had not worked since coming to the
state four previously.
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Page 16
As to the meaning of "special circumstances" in other contexts see R v Nankivell (No 1) (1989)
155 LSJS 130; R v Collins (1986) 41 SASR 208 ; Saywell v Yiu (1976) 14 SASR 56 at 58 ; Whelan v
McMahon (1995) 181 LSJS 273; BC9503166 and Z, Re (1970) 15 FLR 420; [1970] ALR 914 .
See generally [6R 120.35] in Civil Procedure South Australia, vol 1.
[15,050] Conditions of bail
11
(1) Subject to this Act, every grant of bail is subject to the following conditions:
(a) a condition prohibiting the applicant from possessing a firearm, ammunition or any
part of a firearm;
(b) a condition requiring the applicant to submit to such tests (including testing without
notice) for gunshot residue as may be reasonably required by the bail authority, or
a person or class of persons or body specified by the bail authority.
[subs (1) subst Act 33 of 2012 s 6, effective 4 March 2013]
(1a) A bail authority may only vary or revoke the conditions imposed by subsection (1) if the
bail authority is satisfied that--
(a) there are cogent reasons to do so; and

(b) the possession of a firearm, ammunition or part of a firearm by the person to whom
the bail agreement relates does not represent an undue risk to the safety of the
public.
[subs (1a) insrt Act 33 of 2012 s 6, effective 4 March 2013]
(1b) A bail authority that is a court can only be satisfied of the matters referred to in subsec-
tion (1a) by evidence given on oath.
[subs (1b) insrt Act 33 of 2012 s 6, effective 4 March 2013]
(1c) If a bail authority varies or revokes a condition imposed by subsection (1), the bail author-
ity must make a written record of the reasons for its decision.
[subs (1c) insrt Act 33 of 2012 s 6, effective 4 March 2013]
(1d) Subject to this section, a bail authority may impose 1 or more of the conditions referred to
in subsection (2).
[subs (1d) insrt Act 33 of 2012 s 6, effective 4 March 2013]
(2) The conditions that may be imposed in relation to the grant of bail are as follows:
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(a) that the applicant agree--

(d) to reside at a specified address; or
(ia) to reside at a specified address and to remain at that place of residence while
on bail, not leaving it except for one of the following purposes:
(A) remunerated employment; or
(B) necessary medical or dental treatment for the applicant; or
(C) averting or minimising a serious risk of death or injury (whether to the
applicant or some other person); or
(D) any other purpose approved by a community corrections officer; or
(iii)
(e) if there is a victim of the offence in respect of which the applicant has been
charged -- to comply with such conditions relating to the physical protection
of the victim that the authority considers should apply to the applicant while
on bail; or
(a) to be under the supervision of a community corrections officer and to obey
the lawful directions of the officer; or
(b) to report to the police at a specified place and at specified times; or
(v) to surrender any passport that the applicant may possess; or
(vi) to comply with any other condition as to the applicant's conduct that the au-
thority considers should apply while on bail;
(c)
(b) that the applicant provide the bail authority with written assurances from a stipu-
lated number of persons, who are acceptable to the bail authority, that they are
acquainted with the applicant and are confident that the applicant will comply with
the terms and conditions of a bail agreement;
(c) that the applicant agree to forfeit to the Crown a sum of money (to be stipulated in
the bail agreement) if the applicant fails, without proper excuse, to comply with a
term or condition of the bail agreement;
(i) that the applicant provide security of a specified amount or value to secure pay-
ment of a monetary forfeiture agreed to under paragraph (c);
(ii) that the applicant obtain specified guarantees, or guarantees of a specified nature;
that a guarantor provide security of a specified amount or value to secure payment
of a stipulated monetary forfeiture.
[subs (2) am Act 33 of 1986 s 3 ; Act 32 of 1987 s 9 ; Act 23 of 1990 s 3 and Sch 2 ; Act 42
of 1999 Pt 3, effective 1 September 2000 ; Act 60 of 2013 Sch 1, effective 1 October 2014]
(2aa) If the applicant is a serious and organised crime suspect, any grant of bail to the appli-
cant--
(a) must be made subject to the following conditions:

(d) a condition that the applicant agree to reside at a specified address and to
remain at that place of residence while on bail, not leaving it except for 1 of
the following purposes:
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Page 18
(A) necessary medical or dental treatment for the applicant;

(B) averting or minimising a serious risk of death or injury (whether to the
applicant or some other person);
(C) any other purpose approved by the Chief Executive Officer;
(iii)
(e) a condition that the applicant agree to be fitted with a device of a kind ap-
proved by the Chief Executive Officer for the purpose of monitoring compli-
ance with the condition referred to in subparagraph (i) and to comply with all
reasonable directions of the Chief Executive Officer in relation to the device;
(a) a condition that the applicant agree to not communicate with any person
other than specified persons, or persons of a specified class or of a class pre-
scribed by regulation;
(b) a condition that the applicant agree to only use for communication purposes,
or be in possession of, such telephones, mobile phones, computers or other
communication devices as may be specified; and
(c)
(b) may not be made subject to the condition referred to in subsection (2)(a)(ia) (but
the bail authority may, subject to this section, impose any other condition referred
to in subsection (2)).
Editor's Note:
[subs (2aa) insrt Act 12 of 2012 s 12, effective 17 June 2012]
(2ab) If the applicant is a class 1 or class 2 offence suspect, any grant of bail to the applicant
must, subject to this section, be made subject to the following conditions:
(a) a condition that the applicant agrees not to engage in child-related work;
(b) a condition that the applicant agrees not to apply for child-related work.
[subs (2ab) insrt Act 41 of 2013 Sch 1 item 1, effective 22 December 2013]
(2ac) A bail authority may only vary or revoke conditions imposed in accordance with subsec-
tion (2ab) if the bail authority is satisfied that--
(a) there are cogent reasons to do so; and

(b) the applicant engaging in child-related work will not pose a risk to the safety and
well being of children.
[subs (2ac) insrt Act 41 of 2013 Sch 1 item 1, effective 22 December 2013]
(2ad) If a bail authority varies or revokes a condition imposed by subsection (2ab), the bail au-
thority must make a written record of the reasons for its decision.
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Page 19
[subs (2ad) insrt Act 41 of 2013 Sch 1 item 1, effective 22 December 2013]
(2a) In deciding on the conditions to be imposed in relation to a grant of bail, a bail authority
should give special consideration to any submissions made by the Crown on behalf of a victim of
the alleged offence.
[subs (2a) insrt Act 32 of 1987 s 9]
(3) A bail authority should not impose a condition under subsection (2)(a)(ia) or (iii) except on
the application, or with the consent, of the Crown.
[subs (3) subst Act 32 of 1987 s 9 ; am Act 23 of 1990 s 3 and Sch 2]
(3a) Before a bail authority imposes a condition under subsection (2)(a)(ia) or (2aa)(a)(i), the
bail authority should obtain a report (whether oral or in writing) from the Crown on--
(a) in the case of a condition under subsection (2)(a)(ia) -- the appropriateness of such
a condition being imposed in the applicant's case; or
(b) in the case of a condition under subsection (2aa)(a)(ia) -- whether the place of resi-
dence proposed to be specified in the condition is appropriate in the applicant's
case.
Editor's Note:
[subs (3a) subst Act 12 of 2012 s 12, effective 17 June 2012]
(4) A condition (other than a condition as to the conduct of the applicant while on bail) must
not be imposed under this section unless the condition is, in the opinion of the bail authority,
reasonably necessary to ensure that the applicant complies with the bail agreement.
(5) A financial condition must not be imposed under this section unless the bail authority is of
the opinion that the object of ensuring that the applicant complies with the bail agreement
cannot be properly secured by a non-financial condition or combination of non-financial condi-
tions.
(6) It is a condition of every bail agreement that the person released under the agreement will
not leave the State for any reason--
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Page 20
(a) if the person is under the supervision of a community corrections officer -- without
the permission of the Chief Executive Officer (or his or her nominee) of the admin-
istrative unit of which the community corrections officer is an officer or employee;
(b) [repealed]
(c) in any other case -- without the permission of--
(d) a judge or magistrate; or
(A) of or above the rank of sergeant; or
(B) the responsible officer for a police station.
(iii)
(c)
[subs (6) subst Act 32 of 1987 s 9 ; am Act 23 of 1990 s 3 and Sch 2 ; Act 27 of 1995 s 5 ;
Act 42 of 1999 Pt 3, effective 1 September 2000 ; Act 60 of 2013 s 8, Sch 1, effective 1 Oc-
tober 2014]
(7) A condition imposed under this section must be stipulated in the bail agreement.
(7a) If it is a condition of a bail agreement that the person released under the agreement will
remain at a particular place of residence, a police officer or a community corrections officer au-
thorised by the Minister for the purpose may enter the residence at any time for the purpose of
ascertaining whether or not the person is complying with the condition.
[subs (7a) insrt Act 32 of 1987 s 9 ; am Act 42 of 1999 Pt 3, effective 1 September 2000 ;
Act 60 of 2013 Sch 1, effective 1 October 2014]
(7b) A person must not hinder a person referred to in subsection (7a) in the exercise of powers
under that subsection.
Maximum penalty: $2500
[subs (7b) insrt Act 32 of 1987 s 9 ; am Act 23 of 1990 s 3 and Sch 2 ; Act 42 of 1999 Pt 3,
effective 1 September 2000]
(8) If it is a condition of a bail agreement that the person released under the agreement will be
under the supervision of a community corrections officer and obey the lawful directions of that
officer, the officer to whom the person is assigned for supervision may give reasonable direc-
tions--
(a) requiring that person to report to the officer on a regular basis; or

(b) requiring that person to notify the officer of any change in the person's place of
residence, or in the person's employment; or
(c) on any other matter stipulated by the bail authority.
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[subs (8) am Act 33 of 1986 s 3 ; Act 23 of 1990 s 3 and Sch 2 ; Act 42 of 1999 Pt 3, effec-
tive 1 September 2000 ; Act 60 of 2013 Sch 1, effective 1 October 2014]
(9) If--
(a) a bail authority imposes a condition under this section; but

(b) the applicant remains in custody because the condition is not fulfilled, the applicant
must (if he or she is not sooner released) be brought back before a bail authority for
a review of the condition as soon as reasonably practicable and, in any event, within
five working days after the condition is imposed.
[subs (9) subst Act 27 of 1995 s 5 ; am Act 60 of 2013 Sch 1, effective 1 October 2014]
(10) A bail authority may, on a review of a condition under subsection (9)--
(a) confirm, vary or revoke the condition; and

(b) [repealed]
(c) [repealed]
(i) impose any other condition under this section that the bail authority thinks fit.
(11) If a bail authority imposes a condition requiring a person--
(a) to remain at a particular place of residence while on bail; or

(b) to be under the supervision of a community corrections officer,
the bail authority must ensure that a copy of the bail agreement is furnished to the relevant re-
sponsible Minister.
[subs (11) subst Act 42 of 1999 Pt 3, effective 1 September 2000; am Act 60 of 2013 Sch 1,
effective 1 October 2014]
(12) A condition of bail may relate to a place or circumstances outside the State.
[subs (12) insrt Act 18 of 2009 Sch 1 item 2, effective 1 November 2009]
child-related work
has the same meaning as in the Child Sex Offenders Registration Act 2006;
class 1 offence suspect

means a person who has been charged with a class 1 offence (within the meaning
of the Child Sex Offenders Registration Act 2006);
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Page 22
class 2 offence suspect

means a person who has been charged with a class 2 offence (within the meaning
of the Child Sex Offenders Registration Act 2006).
[subs (13) insrt Act 41 of 2013 Sch 1 item 1, effective 22 December 2013]
updates and historical versions. (SA) Bail Act 1985 s 10, s 3(1).
Section 3(1): "bail authority", "child", "financial condition", "guarantee", "victim" and "working
day". See generally the notes on s 10.
Legislation cited in [15,050.1AA] below. LawNow subscribers click through for daily
updates and historical versions. (SA) Bail Act 1985 Section 11A, subs (1).(SA) Fire-
arms Act 1977 [90,020].
[15,050.1AA] Prohibiting possessing a firearm -- subs (1)

A new subs (1) was introduced as from 4 March 2013 by s 6 of the Statutes Amendment (Serious
Firearm Offences) Act 2012 No 33. For the meaning of firearms see [15,010.1A] and [90,020] in
vol 3. Section 11A [15,051] gives the bail authority power to require a person given bail to sur-
render any firearm.
[15,050.1A] Home detention bail -- subs (2)(a)(ia)

A sentencing judge may, but is not obliged to, give some credit in the sentence imposed for time
previously spent on home detention bail: R v Malesevic (1999) 204 LSJS 32; [1999] SASC 321;
BC9904457 ; Brookes v R [2001] SASC 385; BC200107316 (CCA), 14 November 2001. Credit
may be given on sentencing for home detention bail served where the defendant is only found
guilty of charges which did not justify the home detention condition and the defendant is not
convicted of those which did: R v Allen [1999] SASC 346; BC9905381 (CCA), 16 August 1999.
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Page 23
Home detention bail conditions cannot be ordered where they are opposed by the prosecutor:
R v Duke [1999] SASC 431; BC9906754 (Lander J), but it was held that the court had a discre-
tion subject to the ability of the State to monitor properly any home detention in R v Cooke
(2003) 231 LSJS 406; [2003] SASC 403; BC200308137 (Gray J), R v Quinn [2004] SASC 41;
BC200400606 (Sulan J), 20 February 2004. Home detention bail is intended to be an alterna-
tive to imprisonment for selected defendants: R v Halas (2001) 81 SASR 1; 122 A Crim R 503;
[2001] SASC 172; BC200103101 (Gray J). As to credit in sentencing for home detention bail
see also [10,050.39(31)].
[15,050.1B] Written assurances -- subs (2)(b)

Such assurances were required in R v ACP [2005] SASC 451; BC200510233 (Bleby J), 29 No-
vember 2005.
[15,050.1C] "Serious and organised crime suspect" -- subs (2aa)

"Serious and organised crime suspect" is defined in s 3A [15,012] and see its notes.
[15,050.1D] "Prescribed by regulation" -- subs (2aa)(a)(iii)

As at the commencement of subpara (iii) no Regulations had yet been made.
updates and historical versions. (SA) Bail Act 1985 subs (9).
[15,050.2] Review application by video link -- subs (9)

As to review under subs (9) by a Magistrates Court on video link see Magistrates Court Rules r
46 [56,265] in vol 2.
[15,050.3] Setting conditions of bail

A condition should not be set of the court's own motion which is not sought by the prosecution
and which by its nature is contrary to the presumption of innocence: Lever v Fredericks (1996)
189 LSJS 132; BC9605977 (Debelle J). A condition of bail can require the defendant to incur
expense in complying with it: Evans v Shiels (2004) 185 FLR 1 at 5; (2004) 145 A Crim R 337;
[2004] ACTSC 19; BC200401887
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Page 24
[15,050.4] Leaving the state -- subs (6)(c)

Permission to leave the state should not be granted where there is a significant risk that the de-
fendant would not return to answer the charge: R v Bey (1996) 86 A Crim R 304 .
[15,050.5] Family Court contact order

A condition of bail is invalid to the extent it is inconsistent with a contact order for a child made
by the Federal Family Court: P v Dunne (2003) 27 WAR 528; 31 Fam LR 178; [2003] WASCA 201;
BC200304890 .
updates and historical versions. (SA) Bail Act 1985 s 21B.
[15,050.6] Condition of undertaking an intervention program

See s 21B [15,116].
[15,050.7] Review under subs (9)

Under MCR 46 [56,265] in vol 2 such a review in the Magistrates Court may be conducted by
video link.
[15,052] Bail authority may direct person to surrender firearm etc
11A
(1) A bail authority may, in relation to a grant of bail that is subject to the condition imposed
by section 11(1)(a), direct the person to whom the grant of bail relates to surrender as soon as
reasonably practicable at a police station specified by the bail authority any firearm, ammuni-
tion or part of a firearm owned or possessed by the person.
(2) A person who refuses or fails to comply with a direction under subsection (1) is guilty of an
offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
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Page 25
(3) No criminal liability attaches to a person to the extent that he or she is complying with a
direction under this section.
(4) The Commissioner of Police must deal with any surrendered firearm, ammunition or part of
a firearm in accordance with the scheme set out in the regulations.
(5) No compensation is payable by the Crown in respect of the exercise of a power or function
under this section.
(6) The regulations may provide for the payment, recovery or waiver of fees in respect of this
section.
[s 11A insrt Act 33 of 2012 s 7, effective 4 March 2013]
[15,052.1] Background of s 11A

Section 11A was introduced as from 4 March 2013 by s 7 of the Statutes Amendment (Serious
Firearms Offences) Act 2012 No 33.
updates and historical versions. (SA) Firearms Act 1977 ss 3, 5.
[15,052.5] "Firearm, ammunition"

See their definitions in ss 3 [15,010] and 5 of the Firearms Act 1977 [90,020] in vol 3.
[15,055] Refusal of application
12
(1) If a bail authority decides to refuse an application for release on bail, the bail authority
must make a written record of the reasons for its decision.
Page | 25
Page 26
(2) The refusal of an application for release on bail does not preclude further applications.
[15,055.1] Successive applications

Under s 12 the procedure seems analogous to that for applications for habeas corpus as recog-
nised in Tobin v Minister for Correctional Services (1980) 24 SASR 389 . It would seem successive
applications can be made to different judges even though the earlier ones have been refused: R
v Kaddour (2000) 119 A Crim R 204; [2000] NSWSC 888; BC200007471 . See also [15,035.3].
updates and historical versions. (SA) Bail Regulations 2000 Form 2, reg 5.
[15,055.5] Reasons for refusal

See reg 5 of the Bail Regulations 2000 [15,625] and Form 2 to those Regulations [15,720].
DIVISION 2 PROCEDURE ON ARREST [s 13]
[15,060] Procedure on arrest
13
(1) If a police officer arrests a person who is, on arrest, eligible to apply for release on bail,
the police officer must--
(a) as soon as reasonably practicable after delivering the arrested person to a police
station or designated police facility after making the arrest, take reasonable steps
Page | 26
Page 27
to ensure that the arrested person (and, if the arrested person is a child, any
guardian who is present) understands that the arrested person is entitled to apply
for release on bail under this Act; and
(b) ensure that the arrested person (and, if the arrested person is a child, any guard-
ian who is present) receives--
(c) a written statement, in the prescribed form, explaining how, and to what
authorities, an application for release on bail may be made under this
Act; and
(d) the appropriate form for making an application for release on bail.
(e)
(2) An eligible person who is a child who has applied unsuccessfully to a police officer for re-
lease on bail must, if the child or a guardian so requests, be brought before the Youth Court as
soon as practicable for the purpose of making an application for release on bail.
(3) An eligible person who has been arrested on a charge of an offence must, if not released
beforehand, be brought before the appropriate authority on the charge in relation to which
he or she was arrested as soon as reasonably practicable but, in any event, not later than 4
pm on the next working day following the day of arrest.
(4) The appropriate authority before whom a person is brought under subsection (3) must
inquire as to whether that person wants to apply for release on bail and, if the person answers
in the affirmative, the authority must afford the person a reasonable opportunity to apply
for release on bail.
(5) For the purposes of this section, an eligible person may be brought before the Youth
Court or the Magistrates Court--
(a) in person or by video link; or

(b) if the person is in custody in a police station or designated police facility that is
situated in a remote area and there is no video link available -- by audio link.
appropriate authority
means--
(a) in relation to a child -- the Youth Court; and

(b) in any other case -- the Magistrates Court;
remote area
, in relation to the situation of a police station or designated police facility,
means--
Page | 27
Page 28
(a) 200 kilometres or more; or

(b) if some other distance is prescribed by the regulations for the pur-
poses of this definition -- that distance,
from the nearest Youth Court or Magistrates Court (as the case requires);
Youth Court
means the Youth Court of South Australia.
[s 13 subst Act 60 of 2013 s 9, effective 1 October 2014]
Section 3(1): "child" and "guardian".
updates and historical versions. (SA) Bail Regulations 2000 reg 6, Sch 2.
[15,060.1A] Written statement of rights -- subs (1)(b)(i)

See reg 6 of the Bail Regulations 2000 [15,630] and Sch 2 to those Regulations [15,785].
[15,060.1B] Obligation to give bail rights

It is not necessary to comply with s 13 in respect of a person while he is detained under the Pub-
lic Intoxication Act 1984: Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492; [2000] SASC
405; BC200007369 (Bleby J).
Page | 28
Page 29
[15,060.2] Effect of non compliance

Any failure to comply with s 13, can be a basis for a court to exercise its discretion on the
grounds of unfairness to exclude any statement of the accused given subsequently: R v Bennett
(1986) 44 SASR 164 ; R v Santos (1987) 137 LSJS 86 (but overruled by the High Court on another
point: Santos v R (1987) 75 ALR 161; 29 A Crim R 122 ). It would seem a failure to deal with bail
in proper time could lead to a civil claim: Nasr v New South Wales (2007) 170 A Crim R 78;
[2007] NSWCA 101; BC200703257 .
[15,060.3] Time within which the person is to be brought before a justice -- subs (3)
Quaere whether s 13(3) only requires the accused to be brought before a justice to enable an
application for bail on the next working day even where he is arrested in the early hours of the
morning: R v Bennett (1986) 44 SASR 164 .
[15,060.4] "As soon as reasonably practicable" -- subs (3)

What is reasonably practicable has to be related to the administrative arrangements in place
and available at the time for the purpose of considering: R v Bell (1994) 77 A Crim R 213 .
[15,060.5] Audio visual link hearings

As to hearings of reviews by audio visual links see r 10A of the Supreme Court Bail Review Rules
1986 [22,045A].
Page | 29
Page 30
PART 4 REVIEW OF DECISIONS OF BAIL AUTHORITIES [ss 14-16]
[15,065] Review of decisions of bail authorities
14
(1) A decision of a bail authority (not being the Supreme Court) is subject to review under this
section.
(2) A review may be carried out under this section on the application of the Crown, the person
applying for release on bail or, if the person applying for release on bail is a child, the child or a
guardian of the child --
(a) by the Supreme Court; or

(b) if the decision subject to review is a decision of a police officer or a court constitut-
ed of justices -- by a magistrate.
[subs (2) am Act 33 of 1986 s 3 ; Act 27 of 1995 s 7 ; Act 60 of 2013 Sch 1, effective 1
October 2014]
(3) On a review, the reviewing authority will reconsider the application for release on bail and
may make any decision on that application that should, in the opinion of the reviewing authori-
ty, have been made in the first instance.
(4) If an application for review of a decision of a bail authority is made, the bail authority must
furnish the reviewing authority with any documentary or other material in its possession that
may be relevant to the review.
(5) The reviewing authority must hear and determine an application under this section as ex-
peditiously as possible.
Page | 30
Page 31
updates and historical versions. (SA) Bail Act 1985 s 15A, s 16, s 3(1).
Section 3(1): "bail authority". Section 15A: review by Supreme Court of review by magistrate of
decision of lower bail authority. Section 16: deferral of release on grant of bail pending a review.
updates and historical versions. (SA) Bail Act 1985 s 14.(SA) Bail Regulations 2000
Form 6, reg 5(4).
[15,065.2] Rules of Court and Regulations

Proceedings under s 14 are governed by the Supreme Court Bail Review Rules 1985 which ap-
pear at [22,000] et seq below. See reg 5(4) [15,625] of the Bail Regulations 2000 and Form 6 to
those Regulations [15,750].
[15,065.3] Nature of the review

"Reviews under the (Act) do not proceed upon a consideration of the information that was be-
fore the bail authority and upon the manner in which the discretion of the bail authority was or
was not exercised; on the contrary, such reviews are in the nature of appeals de novo and, as
such, they are to be determined upon the basis of the information that is placed before this
Court. (The Court is to) determine the matter ... after having regard to the information that is
actually before (it) (and), what decision (it) would have made if (it) had been the Magistrate
hearing (the) application for bail": Lavers v Fauser (1986) 41 SASR 593 at 595-596; 130 LSJS
388 . On similar but not identical legislation in the ACT it was held that where a magistrate had
refused bail when it had not been applied for, there was no basis to conduct a review, but the
Supreme Court could treat the review proceedings as an application to it for bail: Dunstan v DPP
(1999) 107 A Crim R 358; [1999]FCA 921; BC9903896 .
[15,065.4] Evidence on the review
Page | 31
Page 32
Under r 10 of the Bail Review Rules, unless the court otherwise allows, all evidence, including
that relied upon by the respondent, is to be before the court on affidavit: Farquar v Fleet (1989)
50 SASR 490 .
[15,065.5] No appeal
After a review under s 14 there can be no further application or appeal to the Full Court to chal-
lenge the decision on the review: Panagiotidis v Jakacic (1986) 41 SASR 591; 130 LSJS 465 ;
Webster v South Australia (2003) 87 SASR 17; 230 LSJS 184; [2003] SASC 347; BC200305796
(Full Court).
[15,070] Telephone review
15
(1) Subject to this section, if--
(a) an arrested person makes an application for release on bail to a police officer or a
court constituted of justices; and
(b) the person is dissatisfied with the decision made on the application; and
(c) there is no magistrate in the vicinity immediately available to review the decision,
the police officer or justices who made the decision must, on the written application of the
person, contact a magistrate by telephone for the purpose of having the decision reviewed.
(2) An arrested person dissatisfied with a decision made on application to a police officer on
arrest who can be brought before the Magistrates Court constituted of a magistrate by not
later than 4 pm on the next day following the day of arrest may not, unless he or she is a
child, make an application under subsection (1) for a review of the decision.
(3) If the arrested person is a child, the written application under subsection (1) may be
made on behalf of the child by a guardian of the child.
(4) If, in relation to the original application for bail, compliance with section 8(1) was not re-
quired under section 8(1a) in that the application was not required in writing, the application
for a telephone review under subsection (1) may be made orally.
Page | 32
Page 33
(5) If the police officer who made the decision is not immediately available to contact a mag-
istrate, contact must be made by another police officer of or above the rank of sergeant or the
responsible officer for the police station.
(6) If a magistrate is contacted under subsection (1), the following provisions apply:
(a) the magistrate must make such inquiries as the magistrate thinks necessary to
satisfy himself or herself of the genuineness of the application for review;
(b) the police officer or justices who made the telephone contact must explain to the
magistrate--
(d) the circumstances of the application for bail; and
(e) the nature of the decision made on the application; and
(a) the reasons for that decision;
(b)
(c) the magistrate must then speak with the person who applied for bail or any legal
practitioner representing or assisting that person, and any other person who may
be present and who may, in the opinion of the magistrate, assist in explaining
the circumstances of the particular case for the purpose of ensuring that the
magistrate is fully informed--
(d) of the grounds and circumstances of the application for bail; and
(e) of the reasons for the applicant's dissatisfaction with the decision taken on
the application; and
(a) if the applicant is a child -- of the circumstances of the child;
(b)
(c) if the decision that is the subject of the review was made by justices -- the magis-
trate must then speak with--
(d) if the police officer who appeared before the justices and opposed the ap-
plication for bail is present and wishes to speak in relation to the applica-
tion for review -- the police officer; or
(e) if that police officer is not immediately available -- another police officer who
is present and wishes to speak in relation to the application for review;
(b)
(i) the magistrate must then advise the police officer or justices who made the tele-
phone contact of the decision on review, and bail must then be granted or re-
fused in accordance with that decision.
(7) For the purposes of subsection (2), an arrested person can be brought before the Magis-
trates Court--
(a) in person or by video link; or

(b) if the person is in custody in a police station or designated police facility that is
situated in a remote area and there is no video link available -- by audio link.
Page | 33
Page 34
remote area
, in relation to the situation of a police station or designated police facility,
means--
(ii) 200 kilometres or more; or

if some other distance is prescribed by the regulations for the pur-
poses of this definition -- that distance,
from the nearest Magistrates Court.
updates and historical versions. (SA) Bail Act 1985 s 15(3), s 3(1).
Section 3(1): "child", "guardian" and "telephone". On s 15(3) see [15,060.3] above.
[15,075] Review of magistrate's decision by Supreme Court
15A
(1) Subject to this section, a decision of a magistrate on a review of a decision of a bail author-
ity is subject to review by the Supreme Court.
(2) A review may be carried out under this section on the application of the Crown, the person
applying for release on bail or, if the person applying for release on bail is a child, the child or a
guardian of the child.
(3) A review under this section may only occur with the permission of the Supreme Court
(which should only be granted if it appears that there may have been some error of law or fact).
Page | 34
Page 35
[subs (3) am Act 17 of 2006 s 46 and Pt 11, effective 4 September 2006 ; Act 60 of 2013
Sch 1, effective 1 October 2014]
[s 15a insrt Act 32 of 1987 s 10]
updates and historical versions. (SA) Bail Act 1985 s 15A.
[15,075.1] Rules of Court

Reviews under s 15A are governed by r 15 of the Supreme Court Bail Review Rules 1985. See
[22,070] below.
[15,080] Stay of release on application for review
16
(1) Despite any other provision of this Act, if--
(a) --
(d) a bail authority decides to release a person on bail; or
(e) on a review by a magistrate of a decision of a bail authority, the magistrate
decides to release a person on bail; and
(b)
(b) a police officer or counsel on behalf of the Crown immediately indicates that an ap-
plication for review of the decision will be made under this Part,
the release must be deferred.
(2) The period of deferral ends--
(a) if an application for a review is to be made--

(d) if the reviewing authority is satisfied that there is proper reason to fix a peri-
od longer than 72 hours for the period of deferral -- at the end of the fixed
period; or
(e) in any other case--
(d) on the completion of the review; or
(e) when 72 hours elapses,
Page | 35
Page 36
whichever occurs first; or

(f)
(b)
(b) if the Crown does not intend to proceed with the review--
(d) when the notice of discontinuance is filed on behalf of the Crown with the
bail authority; or
(e) when 72 hours elapses,
(b) whichever occurs first.
(3) If a person is released on bail under subsection (2) (other than on the completion of a re-
view), the conditions of bail are those that would have applied had the person's release not
been deferred.
reviewing authority
means a magistrate or the Supreme Court, as the case may be.
PART 5 ENFORCEMENT AND TERMINATION OF BAIL [ss 17-20]
[15,085] Non-compliance with bail agreement constitutes offence
17
(1) A person who, without reasonable excuse, contravenes or fails to comply with a term or
condition of a bail agreement is guilty of an offence.
Maximum penalty: $10,000 or imprisonment for 2 years.
[subs (1) am Act 23 of 1990 s 3 and Sch 2 ; Act 27 of 1995 s 9 ; Act 42 of 1999 Pt 3, effec-
tive 1 September 2000]
(2) A penalty imposed under this section must not exceed the maximum penalty that may be
imposed for the principal offence.
(3) A penalty imposed under this section is in addition to any pecuniary forfeiture that the con-
victed person suffers or may suffer in consequence of the offence.
[subs (3) am Act 27 of 1995 s 9]
Page | 36
(3a)
[subs (3a) rep Act 27 of 1995 s 9]
(4) A reference in this section to the principal offence is a reference to --
(a) the offence with which the person released on bail was charged; or
(b) if that person was charged with a number of offences -- that one of the offences
that attracts the highest penalty.
[15,085.1] Offence of breaking bail terms

The consent of the victim is no answer to a breach of bail terms and a significant deterrent pen-
alty should be imposed: Trotter v Police (1997) 68 SASR 363 , but it may be a mitigating factor:
McCallum v Police (2010) 267 LSJS 403; [2010] SASC 19; BC201000424 (Gray J).
updates and historical versions. (SA) Criminal Law (Sentencing) Act 1988 s 11.
[15,085.5] "Penalty"
By virtue of subs (2), imprisonment cannot be ordered where it is not a penalty available for the
principal offence: Were v Police (2003) 227 LSJS 6; [2003] SASC 116; BC200301869 (Perry J).
Subsection (2) does not provide a maximum penalty against which the penalty is to be assessed
and the amount of the bail agreement which is forfeited, is to be taken into account: Archer v
Police [2006] SASC 41; BC200600412 (Bleby J), 8 February 2006. Imprisonment, even sus-
pended, cannot be imposed unless s 11 of the Sentencing Act [10,055] is satisfied: Calwyn v Po-
lice [2007] SASC 57; BC200700943 (Sulan J), 16 February 2007. A substantial penalty may be
imposed for continual, although minor, breaches over a period of time which have used up re-
sources of supervisors: Nicholls v Police (2007) 97 SASR 431; [2007] SASC 142; BC200703066
(Kelly J). To remove a monitoring device while on home detention bail and to abscond is a seri-
ous offence: Richards v Police [2007] SASC 368; BC200708957 (Bleby J). As to the range of
sentences for such offences see McCallum v Police (2010) 267 LSJS 403; [2010] SASC 19;
BC201000424 (Gray J). The elements of general and personal deterrence in ensuring bail con-
Page | 37
ditions are taken seriously, need to be balanced against any personal mitigating factors: Tokona
v Police [2011] SASC 22; BC201100632 (Gray J), 23 February 2011.
[15,090] Guarantor must inform a police officer if the person fails to comply with bail agree-
ment
17A If a guarantor knows, or has reasonable cause to suspect, that the person released under the
bail agreement has failed to comply with a term or condition of the agreement in relation to which
his or her guarantee has been given, the guarantor must take reasonable steps to inform a police
officer that the failure has, or may have, occurred.
Maximum penalty: $1250.
[s 17A insrt Act 32 of 1987 s 13 ; am Act 23 of 1990 s 3 and Sch 2 ; Act 42 of 1999 Pt 3, ef-
fective 1 September 2000 ; Act 60 of 2013 Sch 1, effective 1 October 2014]
[15,095] Arrest of eligible person on non-compliance with bail agreement
18
(1) If it appears to a court or justice that a person released on bail has contravened or failed to
comply with a term or condition of a bail agreement, it may --
(a) revoke the bail agreement; and

(b) if it appears necessary or desirable to do so -- issue a warrant for the person's ar-
rest.
[subs (1) am Act 23 of 1990 s 3 and Sch 2 ; Act 60 of 2013 s 12, Sch 1, effective 1 October
2014]
(2) A police officer may arrest without warrant a person released on bail if he or she has rea-
sonable grounds for believing that the person --
(a) intends to abscond; or

(b) is contravening or failing to comply with a bail agreement; or
(c) has contravened or failed to comply with a bail agreement.
(3) A person who is arrested without warrant pursuant to subsection (2) must, after being de-
livered into custody at a police station or designated police facility, be brought as soon as prac-
ticable before --
(a) the court before which the person is bound to appear; or

(b) the Magistrates Court.
Page | 38
[subs (3) insrt Act 32 of 1987 s 14 ; Act 27 of 1995 s 10 ; am Act 60 of 2013 s 12, effec-
tive 1 October 2014]
[15,100] Estreatment
19
(1) If a person who has been released under a bail agreement contravenes or fails to comply
with a term or condition of the agreement --
(a) the court before which that person is bound to appear; or

(b) the Magistrates Court,
may, on the application of the Crown or on its own initiative, order that a pecuniary forfeiture
stipulated in a bail agreement or a guarantee be carried into effect.
[subs (1) am Act 23 of 1990 s 3 and Sch 2 ; Act 27 of 1995 s 11 ; Act 17 of 2006 s 47 and Pt
11, effective 4 September 2006 ; Act 60 of 2013 Sch 1, effective 1 October 2014]
(2) An order for pecuniary forfeiture under subsection (1) may provide that the order is not to
be carried into effect until a subsequent day to be fixed by the court making the order.
[subs (2) subst Act 32 of 1987 s 15 ; Act 27 of 1995 s 11]
(3) If a court makes an order under this section, the court may at any time for any sufficient
reason, on the application of the person in relation to whom the order is made or on its own ini-
tiative--
(a) reduce the amount of the forfeiture as stipulated in the bail agreement or guaran-
tee; or
(b) rescind its order.
[subs (3) am Act 27 of 1995 s 11 ; Act 17 of 2006 s 47 and Pt 11, effective 4 September 2006
; Act 60 of 2013 Sch 1, effective 1 October 2014]
(3a) A court that makes an order under this section may allow time for the payment of the
amount forfeited and, if appropriate, direct that the amount be paid in instalments.
[subs (3a) subst Act 62 of 1993 s 23 ; Act 27 of 1995 s 11]
(4) The amount of a pecuniary forfeiture that is carried into effect pursuant to an order under
this section may be recovered as a fine.
Page | 39

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GRADUATE DIPLOMA IN LEGAL PRACTICE

Criminal Law Practice

BAIL ACT 1985

BAIL ACT 1985

PART 1 PRELIMINARY [ss 1-5]

[15,000] Short title

1 This Act may be cited as the Bail Act 1985.

[15,000.1] Inherent jurisdiction of the Supreme Court to grant bail

[15,000.3] Bail on contempt charges

[15,000.4] Bail in appeals pending to the High Court

[15,000.5] Bail under the Extradition Act

[15,000.6] Sentencing after absconding on bail

[15,000.8] Bail under Cross-border Justice Act

(1) In this Act, unless the contrary intention appears--

community corrections officer

(a) in relation to a child -- an officer or employee of an administrative unit

designated police facility

(a) supervised treatment; or

intervention program manager

(a) the officer in charge of the police station; or

serious and organised crime offence

serious and organised crime suspect

[subs (1) am Act 33 of 1986 s 3 ; Act 32 of 1987 s 3]

[15,010.2A] "Serious and organised crime offence" -- subs (1)

[15,010.3] "Working day"

[15,010.4] "Convicted" -- subs (2)

[15,010.5] "Intervention program"

[15,012] Serious and organised crime suspects

[15,012.5] "Serious and organised crime offence"

[15,012.10] Section 275(3) of the CLCA -- subs (2)(b)

[15,012.15] Retrospective orders under s 3A

[15,012.20] Determination by bail authority -- form of the application -- s 3A

[15,012.30] Discretion notwithstanding criteria in s 3A

[15,012.35] Interrelationship of s 3A with s 10A of the Bail Act

[15,015] Eligibility for bail

(a) a person who has been taken into custody--

[15,015.3] Detention for investigation -- subs (2)

[15,015.5] Bail pending case stated

[15,015.10] Mentally incompetent persons

[15,015.15] Bail pending special leave to appeal to the High Court

[15,020] Bail authorities

(a) the Supreme Court;

(a) authorise or require a specified person, or a person of a specified class, to release

[15,020.3] Police bail -- subs (5)(e)

1 of 1 DOCUMENT: Criminal Law SA/Procedural Legislation/BAIL ACT 1985/PART 2 BAIL

PART 2 BAIL AGREEMENTS AND GUARANTEES [ss 6, 7]

[15,025] Nature of bail agreement

(1a) For the purposes of subsection (1) --

(2) A bail agreement must be in the prescribed form.

[15,025.2] "Interlocutory nature" -- subs (1)(a)

[15,025.3] "Prescribed form" -- subs (2)

[15,030] Guarantee of bail

(2) A guarantee of bail must be in the prescribed form.

(c) the responsible officer for a police station; or

(6) A guarantor of bail must be of or above the age of 18 years.

[15,030.1A] Purpose of guarantors

[15,030.2] Multiple guarantors