Bail is a legally binding undertaking that you promise to appear in court on a particular date and time, rather than remain in custody.

When the matter is finalised, the bail undertaking will cease to continue.


West prison wall walking southA large remand prisoner population is a problem. Firstly, a remand prisoner is yet to have their guilt adjudicated by the court. The taking of a person’s liberty, especially when they are presumed innocent, should not be done lightly and only in appropriate circumstances.  Secondly, and perhaps more important politically, detaining people unnecessarily in custody during the criminal process is expensive.

The total net cost of keeping a prisoner in Western Australia per day is $359.35 (this figure was current for 2014-2015 and is taken from the Australian Government, Productivity Commission, Report on Government Services 2016).  Estimates, however, are that keeping people in custody for short periods of time (for example whilst the person secures release on bail) has a higher daily cost, due to the assessment process and additional support needed when an accused is first received in prison.  The Department of Corrective Services estimates that a person kept in custody for less than a week can cost up to $770.00 per day (approximately double the cost than for longer term prisoners) (WA Auditor General’s Report, Management of Adults on Bail, June 2015, p 14).

Being held on remand, when bail has been granted, has a potentially devastating effect on an accused including:

  • loss of income or loss of employment;
  • loss of education or training course opportunities;
  • loss of housing;
  • inability to prepare an adequate defence (particularly if self-represented);
  • disassociation from family and friends; and
  • dislocation from country for Aboriginal accused.


  1. When an accused is charged, the decision to grant or deny bail is usually decided by the police (commonly referred to as watch house bail).
  2. If bail is refused by the police, then it has to be reviewed by a magistrate at first reasonable opportunity (usually the next day). In this instance, it is highly recommended that you be represented by an experienced criminal lawyer.
  3. Schedule 2 of the Bail Act 1982, provides a list of serious offences. If you are on bail and commit one or more of these serious offences, your current bail will be revoked unless there are exceptional circumstances why you should not be kept in custody (ie the accused is dying of cancer).  An accused in this position is referred to as a Schedule 2 Offender.
  4. If the magistrate refuses to grant bail, the accused can appeal the decision to a single judge of the Supreme Court.


Common conditions attached to bail may include that you:

  • require a surety undertaking, whereupon a person agrees to pay money if you do not attend when required;
  • report to police on certain days;
  • abide by a curfew;
  • reside at a specific address;
  • not to contact specified people (either directly or indirectly);
  • not to enter specified areas (ie establishments that serve alcohol); and
  • surrender any passports.


A surety is a person who enters into an agreement with the court to forfeit an amount of money if the accused fails to attend when required.  A surety’s obligation is to only ensure the accused attends court when required.

The surety is not responsible for the accused adhering to bail conditions.

The surety must be over 18 years and able to prove assets equal to the amount prescribed by the court.  They must also be of good character.


Home detention bail is a condition that the accused reside at and remain within a particular address at all times.  The accused is only allowed to leave the address for specified purposes such as attending court or medical appointments and is monitored by the Department of Corrective Services (electronic monitoring – tracking device).

Before home detention is considered by the court an assessment of the proposed address must be undertaken and a report prepared by Community Corrections.  The proposed residence must have a landline phone facility and a responsible adult living there who can provide the accused with food and other amenities.


You can apply for your bail conditions to be changed.  The application must be made before a magistrate.  You can make an application on the date when you are next due in court, or if you need it sooner, you can submit a court form to have the application early listed.


If you are on bail and fail to appear in court, on your specified date, a bench warrant will be issued by a judicial officer to have you arrested and brought before the court.

Further, if you don’t comply with your bail conditions you are also in breach of bail.  Breach of bail constitutes a criminal offence which may result in bail being revoked.


Should you, or anyone you know, require any assistance in relation to bail or any other criminal matters, contact Lawson Legal for your free initial consultation with one of our experienced criminal lawyers.