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Director of Public Prosecutions

16. Bail guidelines

16.1 General

Prosecutors are to comply with the following guidelines when dealing with bail applications.

A person in custody has the right to apply to the Supreme Court for bail in the following circumstances:

  • via s7A of the Bail Act 1994 where a person has been committed to the Supreme Court in respect of an offence and has appeared in that court in respect of the offence
  • an appeal from an order of a magistrate refusing bail pursuant to s21A of the Bail Act 1994

Please note, unless the offence the person is charged with is a crime there is no jurisdiction for the Supreme Court to hear a bail application unless a magistrate at first refused an application (other than on appeal to the Court of Criminal Appeal).

An appeal from an order of a magistrate under s21A of the Bail Act 1994 may only be made by a person in custody if an application for bail was made either orally or in writing and submissions were made in support of the application (s21A(3)(a)) of the Bail Act 1994). The appeal must be filed within 21 days after the order to which the appeal relates was made or refused (s21A(3)(b)) of the Bail Act 1994).

Except where the provisions of s12 of the Family Violence Act 2004 or the provisions of s35(2) of the Justices Act 1959 apply (see below), the principles regarding the granting of bail are those of the common law. Please note the Bail Act 1994 does not prescribe any tests for the granting of bail.

The common law is that an accused person is presumed to be innocent and therefore there is a general presumption that an accused person should be granted bail, with the onus being on the prosecution to show that a person should not be granted bail.

In The Matter of S and The Matter of Section 304 of the Criminal Code (2005) TSSC 89, Slicer J said:

Bail is a form of conditional, not absolute, liberty (see generally Griffiths v R (1977) 137 CLR 293) and has long been a method of accommodating the presumption of innocence, the impact of prolonged detention before trial with the ensuring of receiving attendance at trial and potential risk to the community of the State.

In R v Fisher (1964) 14 Tas R 12, Crawford J at [3] said:

... that prima facie every accused is entitled to his freedom until he stands trial ... Simply because a man is charged with a serious crime (not being a capital case) that of itself is not a strong ground for refusing bail. In many cases bail is allowed, although a man is charged with a serious crime.

Crawford J set out the following factors in determining the question of bail:

  • the probability or otherwise of the accused appearing at the trial. In connection with this, there are three subsidiary factors:
    • seriousness of the crime
    • probability of conviction
    • severity of the punishment that may be imposed
  • his ties with his family
  • his character and antecedents
  • the likelihood of interference with witnesses
  • whether the prosecution opposes the application
  • whether a refusal of bail would prejudice the preparation of his defence
  • the delay before trial
  • the protection of the public

The common law exception is that with a charge of murder the onus is on the accused to satisfy the court that there should be a grant of bail. Bail will only be granted in exceptional circumstances (see R v Clarkson [1981] VR 165; Lim v Gregson [1989] WAR 1).

Thus, although the protection of the public is a factor the court takes into account, it is not the paramount factor, except for two exceptions where the common law has been modified by statute.

Section 12 of the Family Violence Act 2004 provides:

(1) A person charged with a family violence offence is not to be granted bail unless a judge, court or police officer is satisfied that release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.

(2) Without limiting the matters to be taken into account in considering whether or not to grant bail to a person, a judge, court or police officer must have regard to the following:

  • (a) any available risk screening or rehabilitation program assessment;
  • (b) the person's demeanour;
  • (c) the result of any available safety audit;
  • (d) the availability of suitable accommodation for the person and any affected person or affected child;
  • (e) any other matter the judge, court or police officer considers relevant.

(3) Section 34 of the Justices Act 1959 does not apply to a person charged with an offence under section 35 of this Act.

Thus, where a person is charged with a family violence offence as defined by the Family Violence Act 2004 (ss4 & 7), securing a person's attendance at trial is not the paramount consideration but the applicant, not the prosecution, has to satisfy the court that their release on bail would not be likely to adversely affect the safety, well being and interests of an affected person or affected child. The Act therefore reverses the common law and creates a presumption against bail, the onus being on the applicant to displace the onus (see R v S (2008) 157 A Crim R 451; Olsen v Tasmania [2005] TASSC 40; DPP (Acting) v JCN [2015] TASFC 13 per Pearce J at [18]).

The other statutory provision that alters the common law for bail is s35(2) of the Justices Act 1959 which covers a person who is in custody charged with an offence which would be in breach of a restraint order. Section 35(2) provides:

In determining whether to refuse to bail or to admit to bail a person who is a prescribed person within the meaning of section 34A or a person referred to in section 34A(1) who has been taken into custody in respect of an offence constituted by a breach of a restraint order, interim restraint order or telephone interim restraint order, the justice –


(a) must consider the protection and welfare of the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made to be of paramount importance; and

(b) must take into account any previous violence by that person against the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made or against any other person whether or not that person was convicted of an offence, or had a prior restraint order made against him or her, in respect of that violence.

Thus, although the onus is not reversed, the protection of the person who had the benefit of the restraint order is of paramount importance.

Apart from the above two exceptions, the common law principles for bail, as set out above, apply.

In assessing whether or not to oppose a bail application for serious offences (even where s12 of the Family Violence Act 2004 or s35(2) of the Justices Act 1959 do not apply) although at common law protection of the public is not the paramount consideration, it is still a consideration. A court will refuse bail where an accused person poses such a risk that, notwithstanding the presumption of innocence, the protection of the community requires his or her detention until trial (see DPP (Acting) v JCN [2015] TASFC 13 per Pearce J at [16]).

Prosecutors need to carefully consider whether the general public or specific individuals would be at risk if the person in custody is granted bail. If a prosecutor is of the view that the person poses a significant risk to the safety of the public or specific individuals then the bail application should be opposed.

However, bail applications should not automatically be opposed. One of the factors that a judicial officer has to take into account in determining a bail application is whether the prosecution opposes the application. If the prosecution opposes applications for no good reason the fact that an application is opposed would have little meaning for a judicial officer.

If a prosecutor is of the view that a bail application should not be opposed he or she should seek authorisation from a member of the Committee or a Level 3 practitioner, and where the charge is murder, attempted murder or another charge where a complainant has suffered life-threatening injuries, the Director's consent should be obtained.

Where a bail application is not to be opposed clear, brief, written reasons should be made in order to provide a record as to why the decision not to oppose bail was made.

Where it is likely that bail would be granted, careful consideration will need to be given to determine which of the following conditions are required:

  • an acceptable surety condition
  • a residential condition
  • a curfew condition
  • a reporting to police condition
  • a condition that the applicant does not approach, directly or indirectly, the complainant or other specified persons, including witnesses
  • a condition that the applicant does not leave the State
  • a condition that the applicant surrender to the registrar his or her passport
  • a condition that the applicant or the surety pay an actual recognisance to the registrar

Of course, the appropriate conditions would be dependent on the circumstances of the case.

Information concerning the outcome of bail applications should be promptly relayed to any concerned persons, e.g. police and complainants.

16.2 Bail on appeal

Section 415(2) of the Criminal Code provides that the Court of Criminal Appeal may admit a person to bail pending the determination of the appeal. Section 418(1)(c) allows a single judge to exercise that power.

Bail should only be granted when a person is serving a sentence of imprisonment but has appealed their sentence in exceptional circumstances (see Chamberlain v R (No. 1) (1983) 153 CLR 514).

Where a prosecutor considers there are exceptional circumstances, authority should be sought from a member of the Committee to not oppose such an application.

16.3 Crown appeal of a magistrate's decision to allow bail

Section 21A of the Bail Act 1994 allows an aggrieved person to appeal an order of a magistrate granting bail, or a condition of bail. Section 21C of the Act makes the appeal by way of a venire de novo.

Despite this, an appeal should only be considered where the magistrate's decision is clearly unreasonable or further relevant information becomes known after the decision has been made. Where a prosecutor is of the view that an appeal should be considered, authorisation is required from a member of the Committee.

16.4 Crown appeal of a judge's decision to allow bail

Section 21B of the Bail Act 1994 allows a Crown Law Officer to appeal a decision of a judge of the Supreme Court to admit a person to bail, to the Full Court. Where a prosecutor is of the view that an appeal should be considered, authorisation is required from the Director.

16.5. Bail notices

The following guidelines are designed so prosecutors and defence counsel understand the Office’s position regarding bail notices.

Section 7(3A) of the Bail Act 1994 provides that a Crown Law Officer may advise a person who has been admitted to bail to appear in the Court of Criminal Appeal or the Supreme Court on a particular date, in writing, that they are not required to appear in court at the time and place specified in an order until a later date as specified in the notice.

Bail notices are issued where there is no prospect of the matter being progressed on a particular date and defence counsel request a notice be provided in circumstances where it is unnecessary for the accused to appear.

Bail notices will generally not be issued for CCML listings unless

  • defence counsel have requested the next date from the Associate Judge, and we have no issue with the proposed date, or
  • the Court requests a bail consent be raised (for example when a judicial officer is unable to deal with a matter), or
  • the request has been considered by a supervisor or Crown Law Officer within the Office

No bail notice will be issued for a CCML list unless a request has been made by defence counsel at least three business days prior to the listing unless there are exceptional circumstances.  The reason for this is that late bail notices place enormous pressure on the administrative staff of the Office and the staff of the Supreme Court with responsibility for organising judges’ files and advertising the court list.

Bail notices will generally not be given in the following circumstances:

  • If it is the first appearance of an accused person in the Supreme Court as he or she will need to receive warnings from the court in relation to alibi and opinion evidence.
  • If a matter is listed for a trial during the course of a sittings a bail notice will not be given for the call over of that sittings, unless there are exceptional circumstances.  This is to allow for any issues with the listing of the trial to be discussed on that day.  If the trial is not reached on a subsequent day during the sittings to which the accused has been bailed, then a bail notice will be issued

Defence counsel should not assume that a bail notice will be given simply because one has been issued previously. A bail notice is more likely to be granted where there have been active discussions between defence counsel and the Office thereby eliminating the need for a directions hearing.

Where a matter is listed as a trial or backstop trial during the course of a sittings no prosecutor should agree for that matter to be adjourned to the next sittings of the Supreme Court without the permission of the Director or the Deputy Director.

Last updated: 31 July 2026

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