A person charged with an offence by the Western Australian (WA) Police may be arrested and remanded in custody in circumstances where it is believed that the person charged may not appear before the requisite court to answer to the charge(s), where there are issues of community, or personal, safety, where the offence committed is a serious offence or when the person charged is classified as a schedule 2 offender.
Police Powers to release a charged person on Bail:
Section 5(1)(b) of the Bail Act 1982 (WA) gives the WA Police the power to release a person charged with an offence back into the community on Bail.
If Bail is refused by the Police a record of reasons as to why Bail was refused must be made and kept by the Police. The Police are then required to bring the person charged before the Court as soon as is reasonably and practically possible in order that a Bail application can be made to the Court.
When a Bail Application cannot be made:
If a person charged with a serious offence was out on Bail, or an Order (such as an Early Release Order), at the time he/she committed another serious offence that person will be classified as a schedule 2 offender and will not be able to make an application for Bail, except in exceptional circumstances and for exceptional reasons.
"Exceptional reasons" are not defined, or set out, in the Legislation. You should contact our office should you, or a family member, require legal advice as to whether, or not, exceptional reasons exist.
What Offences are Classified as Serious Offences?
'Serious offences' are set out in the Legislation and include, but are not limited to, the following types of offences:
- Deprivation of Liberty,
- Suffocation and strangulation,
- Sexual Penetration without Consent,
- Indecent Assaults,
- Criminal Damage (where property is destroyed or damaged by fire),
How many Bail Applications can be made to the Court?
If a person charged with an offence makes an application for Bail and that application is not granted, or is refused, by the Court that person cannot make a further Bail application, unless it can be established that:
- There has been a significant change in circumstances, or new circumstances have arisen since the time that person's Bail was refused; or
- The person failed to properly and adequately present their case to the Court, at the time that the application for Bail was made, or
- Where bail was granted subject to a home detention condition, that person has, since the previous occasion when his/her case for bail was considered, complied with the home detention condition for a period of one month or more.
What is considered in a Bail Application?
The Bail Act sets out the factors which must be considered by the Court, at the time a Bail application is made. Examples of some factors which must be taken into account are set out below:
- The nature and seriousness of the offence(s) for which that person has been charged,
- Whether, or not, the person charged may fail to appear before the court,
- Whether, or not, the person charged may interfere with a witness or a protected person,
- Whether, or not, the person charged may interfere with or obstruct the course of justice,
- Whether, or not, the person charged may commit another offence whilst on Bail,
- Whether, or not, the person charged may endanger the safety, wellbeing, or property of any other person,
- Strength of the Prosecutions case and of the evidence against the accused person,
- Criminal History of the accused and any previous grants of Bail, and
- Character and personal antecedents of the person charged.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.