History Details
Bail Act 1982
24 December 2001 - 31 December 2003

Schedule 1

[Heading amended by No. 45 of 1993 s.10.]

[Sections 13 and 17]
Part A ¾ Jurisdiction to grant bail
First Column

Appearances in court referred
to in section 13

Second Column

By whom bail may be
granted

    1.Initial appearance

      The initial appearance in court by a defendant in, or in connection with, proceedings for an offence.
    In any case ¾

    (a) a justice; or

    (b) an authorized police officer; and

    in addition, in the case of a child ¾

    (ba) a member of the Children's Court; and

    (c) an authorized community services officer.

    2.Appearance after adjournment

    Appearance in any court or before a judicial officer by a defendant after any adjournment of proceedings for an offence, not being a committal under clause 3.

    The judicial officer who orders the adjournment.
    3.Appearance on committal to Supreme Court or District Court
    The initial appearance by a defendant in the Supreme Court or District Court after he has been committed thereto under any Act to be tried or sentenced or otherwise dealt with.
    The judicial officer who orders the committal.
    4.Appearance in connection with appeal or rehearing
      Appearance in court in connection with any appeal, rehearing, or reconsideration as follows ¾
      (a) for the determination under section 199 of the Justices Act 1902 of an appeal under Part VIII of that Act;
A Judge of the Supreme Court; in the case of an appeal under section 189 of the Justices Act 1902, the Full Court;
      (b) for the determination under section 206A of the Justices Act 1902 of an appeal under that section;
A Judge of the Supreme Court; in the case where the application for leave to appeal is made to the Full Court, the Full Court;
    [(c) deleted]
      (d) for the determination of an appeal under section 688 of The Criminal Code;
The Court of Criminal Appeal or a Judge of the Supreme Court acting under section 702 of The Criminal Code;
      (e) after the hearing of an appeal, for the initial appearance in court required by an order made pursuant to ¾
    (i) section 199 of the Justices Act 1902; or
A Judge of the Supreme Court; in a case where the appeal is heard by the Full Court or section 206A of the Justices Act 1902 applies, the Full Court;
    (ii) section 691 or 692 of The Criminal Code;
The Court of Criminal Appeal or a Judge of the Supreme Court acting under section 702 of The Criminal Code;
    (f) for sentence under section 690(2) of The Criminal Code;
The Court of Criminal Appeal or a Judge of the Supreme Court acting under section 702 of The Criminal Code;
    (g) for a rehearing of any proceedings under section 28 of the Children's Court of Western Australia Act 1988;
The Children's Court;
    (h) for the reconsideration of an order under section 40 of the Children's Court of Western Australia Act 1988.
The Children's Court constituted by the President.
    5. Appearance prescribed by regulation
Appearance in a court for any other purpose or following any other occurrence prescribed by regulations under this Act.The judicial or other officer prescribed by such regulations.
    6. Appearances not otherwise provided for
Any appearance in a court not otherwise provided for in this Part or by regulations under this Act.The judicial officer who, or court which, orders the appearance.

    7. Interpretation of this Part

The following provisions apply to the interpretation of this Part ¾

(a) }proceedings for an offence~ in clause 2 (but not in clause 1) includes any of the following proceedings relating to that offence ¾


    (i) appeal proceedings;

    (ii) proceedings on a writ of habeas corpus; and

    (iii) proceedings on the re-appearance of an offender under section 50 of the Sentencing Act 1995;


(b) where by an Act any provision of the Justices Act 1902 mentioned in clause 4 is applied to proceedings under the first-mentioned Act, the references in that clause to a provision of the Justices Act 1902 shall be read, so far as the circumstances will allow, as a reference to that provision as so applied;
(c) a person who under section 580 or 645(2) of The Criminal Code is required to appear in the Supreme Court or the District Court to be tried is deemed to have been committed thereto for the purposes of clause 3.

Part B ¾ Cessation of power to grant bail



1. Upon decision by Judge, power of other officers ceases

After a Judge of the Supreme Court has granted or refused bail for an appearance by a defendant the power to grant bail for that appearance ceases to be vested in any judicial officer whose jurisdiction is inferior to that of such Judge or in any authorized officer.

2. Upon decision by judicial officer, his power and that of his peers ceases

Except where clause 4 applies, the power to grant bail for an appearance by a defendant ceases to be vested in any judicial officer (including a Judge of the Supreme Court) after he, or another judicial officer whose jurisdiction is co-extensive with his, has granted or refused bail for that appearance.

3. Upon refusal by justice power of authorized officer or justice ceases

After a justice or a member of the Children's Court has refused bail for an initial appearance by a defendant, the power to grant bail for that appearance ceases to be vested in an authorized officer or another justice or another member of the Children's Court, but an authorized officer or a justice or another member of the Children's Court may grant bail for an initial appearance notwithstanding that one or more other authorized officers have previously refused bail for that appearance.

4. Judicial officer's powers where defendant proves new facts or changed circumstances

Notwithstanding clause 2, where a defendant has been refused bail for an appearance or has been granted bail therefor on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co-extensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefor if the defendant makes application and satisfies him that ¾

(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance;

(b) he failed to adequately present his case for bail on the previous occasion when it was considered; or

(c) where bail was granted subject to a home detention condition, he has, since the previous occasion when his case for bail was considered, complied with the home detention condition for a period of one month or more.


Part C ¾ Manner in which jurisdiction to be exercised

Principles governing grant or refusal of bail


1. Bail before conviction to be at discretion of bail authority, except for a child

Subject to clause 3A, the grant or refusal of bail to a defendant, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorized officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant ¾

(a) whether, if the defendant is not kept in custody, he may ¾

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence;

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) whether the defendant needs to be held in custody for his own protection;

(c) whether the prosecutor has put forward grounds for opposing the grant of bail;

(d) whether, as regards the period when the defendant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;

(e) whether there is any condition which could reasonably be imposed under Part D which would ¾

(i) sufficiently remove the possibility referred to in paragraphs (a) and (d);

(ii) obviate the need referred to in paragraph (b); or

(iii) remove the grounds for opposition referred to in paragraph (c);

(f) where the defendant is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the defendant to reside at a place other than the place where the child resides;

(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

2. Child to have qualified right to bail

(1) In this clause ¾

}responsible person~ means a parent, relative, employer or other person who, in the opinion of the judicial officer or authorized officer, is in a position to both influence the conduct of the child and provide the child with support and direction.

(2) Subject to subclause (3), a child defendant who is in custody awaiting an appearance in court before conviction for an offence has a right to be granted bail unless ¾

(a) in the opinion of the judicial officer or authorized officer in whom jurisdiction is vested ¾

(i) one or more of the questions set out in clause 1(a), (b), (d) and (g) must be answered in the affirmative; and

(ii) there is no condition which he could reasonably impose under Part D which would satisfy the relevant provision of clause 1(e);

or

(b) there is no responsible person willing to enter into an undertaking of the kind described in subclause (3)(c),

and if the child is refused bail he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994.

(3) The right of a child defendant under subclause (2) is subject to ¾

(a) clause 3A;

(b) section 28(2) of the Child Welfare Act 1947; and

(c) there being imposed as a condition on the grant of bail a requirement that before the release of the child on bail a responsible person undertakes in writing in the prescribed form to ensure that the child complies with any requirement of his bail undertaking mentioned in section 28(2)(a), (b), (c) and (d).

(4) Subclauses (2)(b) and (3)(c) do not apply to a child defendant if it appears to the judicial officer or authorized officer that the defendant ¾

(a) is over the age of 17 years; and

(b) has sufficient maturity to live independently without the guidance or control of a parent or guardian.

(5) For the purposes of this clause, the provisions of sections 46, 47, 48, 54, 55(2), 60 and 67(2)(a)(iv) apply with all necessary changes as if ¾

(a) references in those provisions to a surety and a surety undertaking were references to a responsible person and to an undertaking referred to in subclause (3)(c) respectively; and

(b) section 54(1)(b)(i) read as follows ¾

}

(i) a person who has entered into an undertaking referred to in clause 2(3)(c) of Part C of Schedule 1 should no longer be regarded as a responsible person for the purposes of that clause, or is dead;

~.
[Section 3(1)]
Serious offences
Enactment
Description of offence
    1.
    The Criminal Code
    s. 278 (as read with s. 282)
    Wilful murder
    s. 279 (as read with s. 282)
    Murder
    s. 280 (as read with s. 287)
    Manslaughter
    s. 292
    Disabling in order to commit indictable offence
    s. 294
    Acts intended to cause grievous bodily harm or to resist or prevent arrest
    s. 296
    Intentionally endangering safety of persons travelling by railway
    s. 296A
    Intentionally endangering safety of persons travelling by aircraft
    s. 297
    Grievous bodily harm
    s. 298
    Causing explosion likely to endanger life
    s.299
    Attempting to cause explosion likely to endanger life
    s. 301
    Wounding and similar acts
    s. 317
    Assault occasioning bodily harm
    s. 317A(a)
    Assault with intent to commit or facilitate a crime
    s. 317A(b)
    Assault with intent to do grievous bodily harm
    s. 318
    Serious assaults
    s. 323
    Indecent assault
    s. 324
    Aggravated indecent assault
    s. 325
    Sexual penetration without consent
    s. 326
    Aggravated sexual penetration without consent
    s. 332
    Kidnapping
    s. 333
    Deprivation of liberty
    s. 338E
    Stalking
    s. 378
    Stealing a motor vehicle
    s. 392
    Robbery
    s. 393
    Assault with intent to rob
    s. 401
    Burglary
    s. 444
    Criminal damage, if the property is destroyed or damaged by fire
    2.
    Bush Fires Act 1954
    s. 32
    Wilfully lighting a fire or causing a fire to be lit under such circumstances as to be likely to injure or damage a person or property
    2a.
    Misuse of Drugs Act 1981
    s. 6(1)
    Offences concerned with prohibited drugs generally
    s. 7(1)
    Offences concerned with prohibited plants generally
    s. 33(2)(a)
    Conspiracy to commit an offence under s. 6(1) or 7(1)
    2b.
    Restraining Orders Act 1997
    s. 61(1)
    Breach of a violence restraining order
    s. 86(2)
    Breach of a Part VII order under the Justices Act 1902 ¾

    (a) that under section 86 of the Restraining Orders Act 1997 is taken to be a misconduct restraining order under that Act; and


(b) that shows on the face of the order that the causing or threatening of personal injury by the defendant was a ground for the making of the order.
    3.
    Road Traffic Act 1974
    s. 59
    Dangerous driving causing death, injury, etc.
    s. 59A
    Dangerous driving causing bodily harm

[Schedule 2 inserted by No. 45 of 1993 s.11; amended by No. 82 of 1994 s.13; No. 38 of 1998 s.4(2); No. 54 of 1998 s.15; No. 23 of 2001 s.10(1).]



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