What is bail?

by The FindLaw Team

Bail can be controversial topic when discussion revolves around criminal offences, and as a concept may often be misunderstood. This piece will strive to clarify some of the issues that may arise in regards to the subject of bail.

The definition of bail

The etymology of the word ‘bail’ is derived from the old French term, baillier: meaning to take charge, guard, control – which of course leads to the handing over, or delivering of a person.

Bail as a concept in law, means an accused is granted release from custody from officers of the law (the police) and into the custody of a person that is normally known to the accused (sureties). The sureties make an undertaking that the accused will appear at a specified time and place to answer the charge against them. Failure of an accused to be present can mean the sureties may be liable to lose the amount of money that was issued when bail was granted.

What is also interesting is that the money lodged as security must not be from the accused, and is considered a corruption of the bail process if an accused is also the surety.

Is an accused automatically granted a right to bail?

Some people may have the impression that bail is granted to anyone that is accused of a criminal offence, however, there is no actual common law right to bail. In Chau v DPP (1995) 3 NSWLR 639 ALR 430; 82 A Crim R 339 (CA), Gleeson CJ said:

“There is no common law right in a person who has been arrested and charged with a serious crime to be at liberty or on bail pending the resolution of the charge. In any event if there were such a right, it could be modified by statute.”

What are the considerations in the granting of bail?

The general considerations when granting bail can include:

  • preparing a defence;
  • the seriousness of the offence;
  • the seriousness of the punishment;
  • will the accused answer bail;
  • is the accused likely to re-offend;
  • the likelihood of the accused to interfere with witnesses.

What happens if the accused absconds while on bail?

In the event that the accused fails to appear and answer his or her bail, there are three main consequences of such actions:

  • the surety is forfeited;
  • if the accused is apprehended and is in the custody of the police, there is a likelihood that the person will unlikely be granted bail again;
  • the action of absconding can be used as evidence at trial.

If an application for bail is unsuccessful, does an accused have other options for bail?

Successive applications can be made by an accused if an application for bail has been refused. In Scrivener v DPP (2001) 125 A Crim R 279 (QLD CA), McPherson JA said:

“An appeal to this court is not the only avenue open to someone whose application for bail has been refused. An alternative is to renew the application to another judge of the court. The right of the applicant to go from one judge to another was recognised in the Full Court in R v Malone [1903] St R Qd 141, and again in R v Hughes [1983] 1 Qd 92, 93, as well as by other authorities in the State... At least that is so before the accused is given in charge to the jury.”


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