Description and purpose of bail

10.3 Bail is a decision on the liberty or otherwise of the accused, between the time of arrest and verdict.[2] Bail is, in theory, ‘process-oriented’, aiming to ensure that the accused re-appears in court either to face charges or be sentenced.[3] A decision to grant bail is made by either the police or the courts, and certain conditions or requirements may be attached to the grant.[4]

10.4 The International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, states that:

it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.[5]

10.5 The purpose of refusing bail is to protect the community and to reduce the likelihood of further offending,[6] and should not be used to punish or coerce the accused into a course of action.[7] A person who is on bail before trial has not been convicted of an offence, and this accords with the principle of the presumption of innocence.[8]

[2] M Findlay, S Odgers and S Yeo, Australian Criminal Justice (2005), 117.

[3] D Chappell and P Wilson, Australian Crime and Criminal Justice (2005), 147.

[4] The bail legislation of the states and territories specifies what conditions may be attached. Judiciary Act 1903 (Cth) s 8 provides that the bail laws of each state and territory apply to federal offences tried in that particular state or territory.

[5]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 9(3). Other aspects of the ICCPR are noted in Ch 2.

[6] D Chappell and P Wilson, Australian Crime and Criminal Justice (2005), 147.

[7] See R v Greenham [1940] VLR, 239; R v Mahoney-Smith [1967] 2 NSWR, 158.

[8] D Chappell and P Wilson, Australian Crime and Criminal Justice (2005), 147; M Findlay, S Odgers and S Yeo, Australian Criminal Justice (2005), 118.