It is a condition of every bail agreement that the person released on bail must not leave the State for any reason without the permission of the court before which the person must appear, or some other authority specified in the bail agreement [see s 11(6) Bail Act 1985 (SA)].
Every bail agreement is also subject to the following conditions:
- that the person released on bail be prohibited from possessing a firearm, ammunition or any part of the same [s 11(1)(a)]; and
- that the person released on bail submit to gunshot residue testing as reasonably required [s 11(1)(b)].
However these may be varied or revoked if the bail authority is satisfied that there are cogent reasons to do so and there is no undue risk to the safety of the public [s 11(1a)].
A bail authority may further impose the condition that the applicant surender any firearm, ammunition or part of the same owned or possessed by them [s 11A]. The maximum penalty for failing to comply with this direction is $10 000 or 2 years imprisonment [s 11A(2].
Further conditions that may be imposed in relation to a grant of bail are constituted by the Bail Act 1985 (SA) ss 11 (1d) and 11(2). These conditions are:
- to reside at a specific address [see s 11(2)(a)(i)]
- home detention or curfew [see s 11(2)(a)(ia)]
- supervision by a community corrections officer [see s 11(2)(a)(iii)]
- conditions for the physical protection of a victim [see s 11(2)(a)(ii) and s 11(2a)]
- regular reporting to a local police station [see s 11(2)(a)(iv)]
- surrendering a passport [see s 11(2)(a)(v)]
- written assurances [see s 11(2)(b)]
- forfeiture [see s 11(2)(c) and s 19]
- cash surety [see s 11(2)(d)]
- guarantors [see s 11(2)(e)]
- security provided by guarantor [see s 11(2)(f)]
- any other conditions regarding the applicant’s conduct [see s 11(2)(vi)]
- not to leave the State for any reason without the permission of the appropriate authority [see ss 11(6) and 11(12) whereby a bail condition can relate to a place or circumstances outside the State]
- surrender any firearm, part of a firearm or ammunition owned or possessed by the person (without criminal liability) [s 68A].
Further conditions can be imposed on serious and organised crime suspects [see s 11(2aa)], and suspects of child-sex offences[see s 11 2(ab)].
All conditions imposed have to be written in the bail agreement [s 11(7)].
Conditions about the payment of money should not be imposed unless the bail authority is of the opinion that there is no other way to make sure that the applicant will comply with the agreement [s 11(5)].
Arrest on non-compliance
When it appears to a court that a person has broken a term or condition of bail the Court can: revoke the bail agreement [s 18(1)(a) Bail Act 1985 (SA)]; and issue a warrant for the person's arrest [s 18(1)(b)].
A member of the police force who has reasonable grounds for believing that a person intends to abscond or is contravening or failing to comply with (or has contravened or failed to comply with) a bail agreement, can arrest the person without a warrant [s 18(2)].
Arrest of terror suspect
Where a person has been released under a bail agreement, and subsequently becomes a terror suspect (as defined in section 3(1) of the Bail Act 1985 (SA)), they may be arrested without warrant and their bail may be revoked [s 19B].
Penalty for non-compliance
A person who, without reasonable excuse, breaches, or fails to comply with, a term or condition of their bail agreement is guilty of an offence.
Maximum penalty: $10 000 or 2 years imprisonment
[s 17(1) Bail Act 1985 (SA)]
However the penalty imposed must not be more than the maximum penalty that can be imposed for the offence for which the person is charged. For example, the person may be charged with disorderly conduct under section 7 of the Summary Offences Act 1953 (SA) , which carries a maximum penalty of $1 250 or 3 months imprisonment, then the maximum penalty that can be imposed for a breach of bail in relation to this offence is $1 250 or 3 months imprisonment [s 17(2) Bail Act 1985 (SA)].
The penalty for a breach of bail is in addition to any penalty for the original offence and any order for the forfeiture of an amount of money that may have been specified in the bail agreement [s 17(3) Bail Act 1985 (SA)].
When a bail agreement has been breached, an order for forfeiture can be made whether or not the person in breach of bail is charged with a bail offence [s 19(1)]. An order for forfeiture may also be made against a guarantor in respect of any amount of money specified in the guarantee [s19(1)]. These orders for forfeiture are known as estreatment orders.
A person against whom an estreatment order has been made may apply to the court for the reduction of the amount or for the order to be rescinded [s 19(3)].