[last updated 12 March 2004]

PART I

PRELIMINARY

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

* * * * * * * * * * * * *

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

"bail authority" means a court or person constituted as a bail authority by or under section 5:

"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:

“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 offenders 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 offenders in the community.

"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 security or obtain guarantees, or requiring a guarantor to provide security, and "non-financial condition" has a correlative meaning:

"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:

"telephone" includes any telecommunication device for the transmission of speech:

"victim", in relation to an offence, means a person who allegedly suffers injury in consequence of the commission of the offence:

"working day" means any day except a Sunday or other public holiday.

(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.

4. (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 exhausted all rights of appeal against the conviction or sentence, or to have it reviewed.

Until 1985 provisions relating to bail pending an appeal from a Court of Summary Jurisdiction were contained in the Justices Act. In 1985 when the Bail Act was passed those bail provisions were deleted. In particular, s.168 of the Justices Act was repealed. That section had provided (a) that bail could only be granted if the court was satisfied that the appeal had been duly instituted and (b) that it be a condition of bail that the appellant surrender to the Justices within 14 days of the Supreme Court announcing its decision on appeal.

The Bail Act 1985 has no express provisions in respect of bail pending appeal, although pursuant to s.4 a person who has not exhausted his rights of appeal is an eligible person. Some confusion seems to exist as to the form in which bail should be granted. Magistrates clearly have a discretion as to the conditions of bail to be imposed. A potential appellant need no longer have instituted the appeal before being granted bail. A Magistrate may, of course, in a particular case, either refuse bail until the appeal has been instituted or, in the alternative, impose a condition that the defendant not be released on bail until the appeal has been instituted. Whether such a condition will be imposed will depend on the Magistrate's assessment of the circumstances of the case. The bail order should, in all cases where the appeal seeks to have reviewed a sentence of imprisonment, include a condition that the appellant undertakes to appear before a Magistrate at the registry of the Magistrate's Court from which the appeal is brought within 14 days of the day on which the Supreme Court announces its decision on appeal to abide the result of the decision unless then are dealt with by the Supreme Court.

I recommend that the order be made substantially in the following form:

That the defendant be granted bail upon entering into a bail agreement with the following conditions:

(a) that he undertakes to forfeit the sum of $.......... should he fail to comply with the conditions of bail

(b) [such other general conditions as seem appropriate as to guarantors residence etc.]

(c) that the defendant institute and prosecute his appeal with all due expedition (to be included if the appeal has not yet been instituted)

(d) that the defendant appear before a Magistrate at the .......... registry of the Magistrate's Court within 14 days of the day on which the Supreme Court announces its decision on appeal, to abide the result of the decision, unless sooner are dealt with by the Supreme Court.

A further difficulty exists as a result of the amendments affected by the Justices Act Amendment Act of 1981 (72 of 1991) which came into effect on 6 July. By that Act the Justices Act was re-named the Summary Procedure Act and all appeal provisions were repealed. The right of appeal is now contained in s.42 of the Magistrates Court Act. The difficulty is that the former s.170 of the Justices Act has been repealed and has not been replaced in the Summary Procedure Act. That section provided:

When any conviction or order has been affirmed, amended, or made upon any appeal, the Justices from whose decision the appeal has been brought, or any other Justice, shall have the same authority to enforce such conviction or order as if it had not been appealed against, or had been made in the first instance.

In the result, a Magistrate no longer has authority to enforce a sentence of imprisonment which has been varied on appeal in the Supreme Court either by increasing or reducing it. I do not consider that there is any difficulty where the appeal has been dismissed. The Magistrate's original order then stands as though the appeal had never been instituted. In those cases, however, where the sentence of imprisonment has been varied, it will be necessary for the Registrar to obtain a Warrant of Commitment from the Supreme Court for use when the defendant surrenders. Such warrants should be complete except as to the date of the commencement of the sentence.

I have discussed the matter with the Chief Justice and I raised with him the possibility of the orders being brought into effect immediately in the Supreme Court. It appears, however, that appellants are not always present in person when the appeal decision is announced. There is also a doubt as to whether the appeal Judge can carry into effect the Magistrate's order if the appeal is dismissed. It seems, therefore, that the existing system must continue.

The matter has been brought to the attention of the Attorney General and it is hoped that in due course the statute will be amended to clarify the position.

 

When such a person surrenders after an unsuccessful appeal, the following order should be made

Being satisfied (by production of Supreme Court sealed order number . . . . . of 19 . . dated the . . . day of . . . . 19 . . ., that the defendant's appeal was dismissed and the order of imprisonment affirmed, and upon the defendant surrendering himself under the terms of a Bail Agreement entered into by him on the . . . day of . . . . . . . . 19 . . I ORDER that the defendant be remanded into his former custody to serve the balance of the term of imprisonment of . . . . . . imposed on the . . . day of . . . . . . . 19 . .

 

(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 before a court as a witness.

(2)   Where 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 release on bail until the end of that detention.

5. (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 respect 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) where 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,

--any magistrate;

(e) where 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 member of the police force); 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 member of the police force who is of or above the rank of sergeant or who is in charge of a police station;

(ea) where the eligible person is appearing before a court in answer to a summons or for allegedly failing to observe a condition of a recognizance--that court;

(eb) where the eligible person is appearing, or is to appear, as a witness before a court - that court;

(f) a person authorized or required to release the eligible person on bail under subsection (2).

(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) authorize 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 member of the police force.

 

PART II

BAIL AGREEMENTS AND GUARANTEES

6. (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 to the contrary, to be present throughout all proceedings-

(i) where the person has not been convicted of the offence--relating to any preliminary examination of the charge and to the hearing and determination of the charge;

(ii) where the person is convicted of the offence--relating to sentencing and to any appeal from, or review of, the conviction or his sentence;

(b) to comply with any conditions as to the person's conduct while on bail stipulated in the agreement;

and

(c) 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 condition of the agreement.

(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

(b) 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.

(1b) A bail agreement with 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) is an agreement under which that person makes an undertaking to the court -

(a) to be present at the proceedings in accordance with the agreement; and

(b) to comply with any conditions as to the person's conduct while on bail stipulated in the agreement; and

(c) 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 condition of the agreement.

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

(3) Where 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;

(b) a member of the police force of or above the rank of sergeant or in charge of a police station;

(c) if the person is in prison--the person who is in charge of the prison;

or

(d) any other person specified by the bail authority or any other person of a class specified by the bail authority.

(4) Notwithstanding 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 of its own motion, vary the conditions of a bail agreement or revoke a bail agreement.

(5) Where a bail authority revokes a bail agreement, the bail authority (not being a member of the police force) may, if it is necessary to do so, issue a warrant for the arrest of the person who was released under the agreement.

7. (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--

(i) all the terms and conditions of the agreement;

or

(ii) such of the terms and conditions of the agreement as are specified in the guarantee;

and

(b) undertakes that, if that person fails to comply with a term or 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.

(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;

(b) a member of the police force of or above the rank of sergeant or in charge of a police station;

(c) if the person who is to be released on bail is in prison--the person who is in charge of the prison;

or

(d) any other person specified by the bail authority or any other person of a class specified by the bail authority.

(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.

(5) Where a bail authority varies or revokes a guarantee, the bail authority may make such consequential 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.

PART III

APPLICATIONS FOR RELEASE ON BAIL

DIVISION I--APPLICATIONS GENERALLY

8. (1) Subject to subsection (1a), an application of a person for release on bail--

(a) must be in the prescribed form;

(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, intellectual 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.

(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 application for release on bail;

and

(b) if the custodian is not a bail authority--transmit the application as soon as practicable to a bail authority.

(2a) Where the eligible person is a child, a request may be made on behalf of the child under subsection (2) by a guardian of the child.

(3) Where 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 notwithstanding that the application was made in the first instance to some other bail authority.

9. (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 member of the police force) 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.

(2) Where 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.

10. (1) Where 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, having regard to--

(a) the gravity of the offence in respect of which the applicant has been taken into custody;

(b) the likelihood (if any) that the applicant would, if released--

(i) abscond;

(ii) offend again;

(iii) interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;

(c) * * * * * * * * * * *

(d) any need that the applicant may have for physical protection;

(e) any medical or other care that the applicant may require;

(f) any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;

(g) any other relevant matter,

the bail authority considers that the applicant should not be released on bail.

(2) Where 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) Where 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.

(4) Despite the other provisions of this section, where there is a victim of the offence, the bail authority 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.

11. (1) Subject to this section, a bail authority may impose one or more of the conditions referred to in subsection (2).

(2) The conditions that may be imposed in relation to the grant of bail are as follows:

(a) that the applicant agree--

(i) 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 minimizing 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

Note:

When ‘home detention’ bail is being imposed, the following conditions should be imposed:

1 To reside at .......................... and not absent himself/herself from that address except (for remunerated employment,) for any necessary medical or dental treatment, to minimise risk of serious injury or death, whether to the applicant or some other person or for any other purpose approved by a duly authorised Home Detention Supervisor of the Department for Correctional Services.

2 To obey all the lawful instructions of any authorised Home Detention Supervisor designated to supervise him/her on home detention.

3 To wear an electronic wristlet and comply with the rules of electronic monitoring (for a period as determined by the Home Detention Supervisor).

4 Not to consume alcohol or any drug which is not medically prescribed or otherwise legally available (and then only at the prescribed or recommended dosages) and to submit to any breath test or urine analysis as directed by the Home Detention Supervisor.

5 Immediately upon release to travel to:-

(a) the address at ........... and upon arrival to contact the Home Detention Supervisor at the .......... office of the Department for Correctional Services by telephoning ............; or

(b) the address at ............ and there to await contact by a Home Detention Supervisor at that address; or

(c) the Adelaide Remand Centre/Yatala Labour Prison/Northfield Prison Complex to collect his/her property and then immediately to travel to the address at .......... and upon arrival to contact the home detention Supervisor at the .......... office of the Department for Correctional Services by telephoning .......... ;or

(d) to the .......... office of the Department for Correctional Services at .......... and report to a Home Detention Supervisor and then to travel to his/her home address at .......... and fitment of the electronic wristlet.

(ii) where 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

(iii) to be under the supervision of a community corrections officer and to obey the lawful directions of the officer; or

(iv) 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 authority considers should apply while on bail;

(b) that the applicant provide the bail authority with written assurances from a stipulated 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;

(d) that the applicant provide security of a specified amount or value to secure payment of a monetary forfeiture agreed to under paragraph (c);

(e) that the applicant obtain specified guarantees, or guarantees of a specified nature;

(f) that a guarantor provide security of a specified amount or value to secure payment of a stipulated monetary forfeiture.

(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.

(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.

(3a) A bail authority should not impose a condition under subsection (2)(a)(ia) without first obtaining a report (whether oral or in writing) from the Crown on the appropriateness of such a condition being imposed in the applicant's case.

The provisions of subparas (3) were considered by Gray J in R v Cooke [2003] SASC 403 and again by Sulan J in R v Quinn [2004] SASC 41.  In the later decision Sulan J said:-

14. Gray J referred to the second reading speech. The Minister made it clear that the reason for including s 11(3) was to ensure that the requirement of supervision by a community corrections officer or a requirement imposing home detention would only be available as a condition of bail if the Department of Correctional Services had the resources to undertake such supervision or to monitor home detention. Gray J said:

"The purpose of the Bail Act was to invest bail authorities with a wide discretion with respect to the grant of bail. The legislature identified in section 10 the relevant factors to be considered. Section 11 provides for conditions of bail. Section 11(3) placed a fetter on the discretion to impose a condition of home detention. The concern of the legislature related to the availability of resources to enable effective supervision(18). Plainly this would be a relevant factor for the court to consider. However in this case there is no suggested difficulty in the monitoring of home detention bail.

Having regard to the scheme of the Act, it is apparent that the legislature did not intend to provide any veto power in the Crown with respect to home detention bail. In these circumstances it is appropriate to read the word 'should' as imposing a discretion. A bail authority in the exercise of discretion will have regard to the ability of the State to properly monitor home detention bail when considering the imposition of such a condition."[6]

(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 conditions.

(6) It is a condition of every bail agreement that the person released in pursuance of the agreement will not leave the State for any reason--

(a) if the person is under the supervision of an officer of a community corrections officer--without the permission of the Chief Executive (or his or her nominee) of the administrative unit of which the community corrections officer is an officer or employee;

*    *    *    *    *    *    *

(c) in any other case--without the permission of--

(i) a judge or magistrate;

or

(ii) a member of the police force of or above the rank of sergeant or in charge of a police station.

(7) A condition imposed under this section must be stipulated in the bail agreement.

(7a) Where it is a condition of a bail agreement that the person released in pursuance of the agreement will remain at a particular place of residence, a member of the police force or a community corrections officer authorized 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.

(7b) A person must not hinder a person referred to in subsection (7a) in the exercise of powers under that subsection.

Maximum Penalty:     $2,500.

(8) Where it is a condition of a bail agreement that the person released in pursuance of this 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 directions--

(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.

(9) Where--

(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,

(10) A bail authority may, on a review of a condition under subsection (9)--

(a) confirm the condition;

(b) vary the condition;

(c) revoke the condition;

(d) impose any other condition under this section that the bail authority thinks fit.

(11) Where 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 responsible Minister.

*    *    *    *    *

12. (1) Where 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.

(2) The refusal of an application for release on bail does not preclude further applications.

DIVISION II--PROCEDURE ON ARREST

13. (1) Where a member of the police force arrests a person who is, upon arrest, eligible to apply for release on bail, the member of the police force--

(a) must, as soon as reasonably practicable after delivering the arrested person to a police station after making the arrest, take reasonable steps to ensure that the arrested person and, where 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) must ensure that the arrested person and, where the arrested person is a child, any guardian who is present, receives--

(i) 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

(ii) the appropriate form for making an application for release on bail.

(2) An eligible person who is a child and has applied unsuccessfully to a member of the police force for release on bail must, if the child or a guardian so requests, be brought as soon as practicable before the Youth Court of South Australia 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 on the next working day following the day of arrest but in any event not later than 4 p.m. on that day.

(4) The appropriate authority before whom a person is brought under subsection (3) must inquire whether that person desires to apply for release on bail and, if the person to whom the inquiry is directed answers affirmatively, the authority must afford the person a reasonable opportunity to apply for release on bail.

(5) In this section --

"appropriate authority" means--

(a) in relation to a child--the Youth Court of South Australia;

(b) in any other case--the Magistrates Court.

PART IV

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, where 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) where the decision subject to review is a decision of a member of the police force or a court constituted of justices--by a magistrate.

(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 authority, have been made in the first instance.

(4) Where 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 expeditiously as possible.

15. (1) Subject to this section, where--

(a) an application for release on bail is made to a member of the police force or a court constituted of justices;

(b) the applicant 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 member of the police force or the justices who made the decision must , on the written application of the applicant or, where the applicant is a child, on the written application of the child or a guardian of the child, contact a magistrate by telephone for the purpose of having the decision reviewed.

(2) Where a magistrate is contacted under subsection (1), the following provisions apply:

(a) the magistrate must make such enquiries as the magistrate thinks necessary to satisfy himself or herself of the genuineness of the application for review;

(b) the member of the police force or justices who made the decision must explain to the magistrate--

(i) the circumstances of the application for bail;

(ii) the nature of the decision made on the application;

and

(iii) the reasons for that decision;

(c) the magistrate must then speak with the person who applied for the 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--

(i) of the grounds and circumstances of the application for bail;

(ii) of the reasons for the applicant's dissatisfaction with the decision taken on the application;

and

(iii) where the applicant is a child--of the circumstances of the child.

(d) if the decision that is the subject of the review was made by justices--the magistrate must then speak with the member of the police force who appeared before the justices and opposed the application for bail (if he or she is present and wishes to speak in relation to the application for review); and;

(e) the magistrate must then advise the member of the police force or justices who made the original decision of the decision on review, and bail must then be granted or refused in accordance with that decision.

(3) This section does not apply in relation to a decision made on application to a member of the police force upon arrest where the arrested person (not being a child) can be brought before a justice not later than 4 p.m. on the next day following the day of arrest.

15a. (1) Subject to this section, a decision of a magistrate on a review of a decision of a bail authority 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, where 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 leave of the Supreme Court (which should only be granted where it appears that there may have been some error of law or fact).

16. (1) Notwithstanding any other provision of this Act, where--

(a)       (i) a bail authority decides to release a person on bail;

or

(ii) on a review by a magistrate of a decision to release a person on bail the magistrate decides to release the person on bail;

and

(b) a member of the police force or counsel appearing on behalf of the Crown immediately indicates that an application for review of the decision will be made under this Part,

the release must be deferred.

(2) The period of deferral ends when--

(a) the review is completed;

(b) a member of the police force or some other person acting on behalf of the Crown files with the bail authority a notice that the Crown does not desire to proceed with the review;

or

(c) 72 hours elapse,

whichever first occurs.

(3) If a person is released pursuant to subsection (2)(b) or (c), the conditions of bail are those that would have applied had the person's release not been deferred.

PART V

ENFORCEMENT AND TERMINATION OF BAIL

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

(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 convicted person suffers or may suffer in consequence of the offence.

(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) where that person was charged with a number of offences--that one of the offences that attracts the highest penalty.

17a. Where 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 member of the police force that the failure has, or may have, occurred.

Maximum penalty:    $1,250

18. (1) Where 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) cancel the right of the person to be at liberty in pursuance of the agreement;

and

(b) if it appears necessary or desirable to do so--issue a warrant for the person's arrest.

(2) A member of the police force may arrest without warrant a person released on bail if he or she has reasonable grounds for believing that the person--

(a) intends to abscond;

(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 delivered into custody at a police station, be brought as soon as practicable before--

(a) the court before which the person is bound to appear;

or

(b) the Magistrates Court.

19. (1) Where a person who has been released in pursuance of 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 of its own motion, order that a pecuniary forfeiture stipulated in a bail agreement or a guarantee be carried into effect.

(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.

(3) Where 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 of its own motion--

(a) reduce the amount of the forfeiture as stipulated in the bail agreement or guarantee;

or

(b) rescind its order.

(3a) A court that makes an order under this section may allow time for payment of the amount forfeited and, if appropriate, direct that the amount be paid in instalments.

(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.

20. When a person who is on bail is sentenced, or discharged without sentence, the bail agreement and guarantees (if any) terminate.

PART VI

MISCELLANEOUS

21. An apparently genuine document purporting to be a bail agreement or guarantee, or a copy of a bail agreement or guarantee, will be accepted by any court or justice as evidence of the bail agreement or guarantee and of its terms and conditions.

21a. An application may be made or a consent given under this Act on behalf of the Crown by--

(a) the Director of Public Prosecutions;

(b) a person acting on the instructions of the Crown;

or

(c) any member of the police force.

22. A person who provides false information in an application for release on bail knowing it to be false is guilty of an offence.

Penalty:     $1,250

23. Where a person under sentence of imprisonment is released on bail pending the hearing of an appeal, the period of release does not count as part of the sentence.

24. Nothing in this Act affects the operation of -

(a) the Domestic Violence Act 1994; or

(b) the provisions of the Summary Procedure Act 1921 relating to restraining orders

25. The Act of the Imperial Parliament 48 Geo. III c. 58 has no further force or effect in this State.

26. The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act.