Bail is a promise backed by money and by the threat of custody. The Act and the Bail Act between them provide for every stage of what happens when the promise is broken.
What counts as a breach
A person granted bail (a) shall appear at the time and place specified by the bail authority and at every time and place to which, during the course of the proceeding, the hearing may be adjourned; and (b) shall comply with all conditions of bail fixed under Section 18.
Two kinds of breach follow: non-appearance, and breach of a condition such as reporting, residence or non-contact with a witness. Section 82 of the District Courts Act makes the recognizance run to every adjourned date, so “I did not know the case was on” is rarely an answer; the defendant is bound to find out.
Arrest
| Situation | Power |
|---|---|
| Defendant fails to appear at the time and place in the recognizance | District Courts Act s 83: the Court may adjourn and issue a warrant under Division IV.5 |
| Reasonable grounds to believe a person is in breach of a condition | Arrest Act s 10: the court may issue a warrant; a person so arrested may not be bailed by the police and must be brought before a court without delay |
| Police officer reasonably suspects the person will not appear or surrender for trial | District Courts Act s 86: arrest without warrant and production before a Court before the appointed day |
Under section 86(2) the Court then either commits the person to custody until the appointed day or re-bails him on a fresh recognizance, and in either case discharges the first recognizance.
Revocation or variation
(1) Where it is alleged that there are reasonable grounds for revoking bail and the person appears or is brought before a court, the court shall consider whether the bail should be revoked.
(2) If, after hearing all the evidence including that of the person granted bail and his witnesses, the court is satisfied that the circumstances so require, it may (a) revoke the bail and commit the person to a place of confinement; or (b) vary the conditions.
(3) Where there is a guarantor, conditions more onerous on the guarantor may not be imposed without the guarantor’s consent.
Revocation is a hearing, not an automatic consequence. The defendant is entitled to explain: illness, a death in the family, a misunderstanding of the date. A magistrate who accepts the explanation may continue bail on the same or stricter terms. A defendant who was on bail when he allegedly committed a further offence faces section 9(1)(b) on the new charge as well.
Forfeiture of the security
Where a person granted bail contravenes his bail obligations, a court may order forfeiture of the whole or part of the security given by him; an undertaking to pay becomes a judgment that the person pay the State, and a deposit may be paid into the Consolidated Revenue Fund; the person affected may apply within 14 days for variation or revocation (Bail Act s 22).
On proof of a breach the Court may adjudge the recognizance forfeited and order payment; where the condition was appearance before a Court, the order may be made ex parte immediately on non-appearance; where the recognizance was to appear before the National Court, that Court may forfeit it ex parte (District Courts Act s 272).
Section 271 lets a magistrate certify the non-compliance on the back of the recognizance as prima facie evidence, section 272(5) allows enforcement by warrant of execution, and section 273 allows the Court, before sale under the warrant, to suspend, cancel or mitigate the forfeiture on conditions. A defendant who reappears with a good explanation should ask for mitigation under section 273 as well as for continued bail.
Guarantors and sureties
Section 19(7) of the Bail Act allows the court dealing with the matter to order that money lodged by a guarantor be paid to the State, or that the guarantor pay the amount undertaken; section 19(8) gives the guarantor 14 days to apply to vary or revoke. Section 267 of the District Courts Act allows a sum due from a surety to be recovered summarily as a civil debt on the complaint of a police officer or the Clerk, and section 269 lets the surety recover it from the principal. A guarantor who learns that the defendant intends to abscond can protect himself by telling the police, who may arrest under section 86.
Is breach an offence?
Section 28 of the Bail Act creates offences connected with bail, and failing to appear in answer to bail may also be dealt with under the Criminal Code. In practice the usual consequences are the ones above: arrest, revocation, forfeiture and, for a committed defendant, the loss of the section 105(2) opportunity to be re-bailed by a magistrate. The National Court considering a later application will treat a previous breach as strong evidence under section 9(1)(a) that the person is unlikely to appear.
Witnesses on recognizance
A witness bound under section 80 or 111 who fails to appear faces a warrant under section 83, and forfeiture of the recognizance under section 272. See can a witness be held in custody.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.