- The default is release on the least onerous conditions, not detention.
- Detention requires one of three grounds: attendance, public safety, or public confidence.
- In defined circumstances the onus reverses and the accused must show why release is justified.
- A surety supervises the accused and pledges money, though it is not usually deposited.
The starting position
A person charged with an offence is presumed innocent and has a Charter right not to be denied reasonable bail without just cause.
The statutory framework directs release at the earliest reasonable opportunity and on the least onerous conditions appropriate. Detention is the exception requiring justification, not the default requiring rebuttal.
Courts have emphasised this repeatedly, in part because pre-trial detention has consequences, on employment, housing and family, for people who have not been convicted of anything.
The three grounds
The primary ground is whether detention is necessary to ensure the accused attends court. Relevant considerations include ties to the community, employment, residence, and any history of failing to appear.
The secondary ground is public protection or safety, including the likelihood of further offences or interference with the administration of justice. The criminal record, the nature of the allegation, and any relationship to a complainant matter here.
The tertiary ground is whether detention is necessary to maintain confidence in the administration of justice, having regard to the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding it including any firearm, and the potential sentence.
The tertiary ground is engaged in serious cases and is narrower than it sounds; it is not a general discretion to detain because an allegation is unpopular.
Reverse onus
Normally the Crown must show why detention is justified. In defined circumstances the onus reverses and the accused must show why release is justified.
Reverse onus situations include certain offences committed while already on release, some firearm and organised crime offences, certain drug trafficking allegations, and some intimate partner violence allegations where the accused has a prior conviction of that kind.
A reverse onus does not make release impossible. It changes who has to persuade the court, and it makes a properly prepared plan considerably more important.
Sureties
A surety is a person who agrees to supervise the accused in the community and pledges an amount of money that can be forfeited if the accused breaches conditions or fails to appear.
The money is usually pledged rather than deposited, meaning the surety promises to pay if something goes wrong rather than handing over funds.
A surety must be an adult with no significant record, who knows the accused, understands the allegations and conditions, has the means to cover the pledged amount, and is genuinely able to supervise. They are usually questioned in court.
A surety can apply to be relieved of the obligation if they can no longer supervise, which results in the accused being taken back into custody until new arrangements are made. It is a serious undertaking rather than a formality.
Conditions
Conditions should be the least onerous necessary and connected to the grounds. Common ones include residing at a particular address, curfews or house arrest, non-communication with named people, geographic restrictions, and weapons prohibitions.
Breaching a condition is a separate criminal offence, so conditions that cannot realistically be met set the accused up to fail. Courts have been urged to avoid imposing unnecessary conditions for that reason.
Where circumstances change, a new job conflicting with a curfew, for example, a variation should be sought rather than the condition simply breached.
Preparation and review
A bail hearing is won on preparation: a proposed residence, a supervision plan, an available surety who has been briefed, employment or counselling arrangements, and a realistic set of proposed conditions.
Where bail is denied, a review is available in the Superior Court, generally requiring a material change in circumstances or an error in the original decision.
Time spent in pre-trial custody is generally credited against any eventual sentence, ordinarily at an enhanced rate, though that is a consequence rather than a reason to be detained.
Common questions
Do I need a surety?
Not always. Release on an undertaking or a recognizance without a surety is common, particularly for less serious matters.
Does a surety have to pay money up front?
Usually not. The amount is pledged and becomes payable only if the accused breaches, and then only after a forfeiture proceeding.
What happens if I breach a condition?
It is a separate offence, and it makes future release harder. A variation should be sought before a condition becomes impossible to meet.
How quickly does a bail hearing happen?
A person held must be brought before a justice within a prescribed period. Hearings can be adjourned briefly, often to arrange a surety.
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