SPECIALIST ADVICE ON RESOLVING BAIL MATTERS

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BAIL

 

Court is fully empowered to enlarge the accused on bail subject to the provisions regarding the grant of bail. Thus, when a bail application is filed by an accused appearing in pursuance to a summons, the Magistrate has to pass a judicial order on the bail application, as he is discharging a judicial function while committing the case. When a judicial order has to be passed, the Magistrate has to apply his mind and pass an order and he is not expected to pass a mechanical order without going into the merits of the case but has to pass an order in accordance with the law regarding the grant of bail. Thus, a distinction has to be drawn between an accused who is “produced before Court” and “appears before Court”, and the same standard of approach cannot be made in remanding the accused to the custody. In cases where the accused appears in pursuance to a summons the bail application has to be considered and disposed of in accordance with the law regarding the grant of bail.

 

The ‘bail’ means as per Wharton’s Law Lexicon, to “set at liberty a person arrested on security being taken for his appearance’. As per the Encyclopaedia Britannica, the bail is a procedure by which a Judge: or Magistrate sets at liberty one who has been arrested, upon receipt of security to ensure the release prisoner’s latter appearance in Court for further proceedings.The Shorter Oxford English Dictionary gives the meaning for ‘Bail Bond’ as security given for his appearance at a time and place assigned. ‘Bail’ means temporary release from imprisonment on finding sureties or security to appear for trial.The meaning of ‘Bail’ as given in the Webster’s Encyclopaedic Unabridged Dictionary of the English Language is “to grant or obtain the liberty (of a person under arrest) on security given for his appearance when required as in Court for trial.

 

Laws related to Bail

 

Queensland Laws- BAIL ACT 1980

  • SECTION 7 Power of police officer to grant bail?
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    (1) This section applies if—
    (a) a person, who has been arrested in connection with a charge of an offence, or under a warrant issued under the Penalties and Sentences Act 1992 , section 33AC , is delivered into the custody of a police officer who is—
    (i) the officer-in-charge of a police station or police establishment; or
    (ii) a watch-house manager; and
    (b) the person is not detained under the Police Powers and Responsibilities Act 2000 ,chapter 15 , part 2 ; and
    (c) a prescribed police officer is satisfied it is not practicable to bring the person before a court promptly.
    (2) The prescribed police officer must investigate whether or not the person may be granted bail under this Act.
    Example:
    1 See section 13 for when only the Supreme Court or a judge of the Supreme Court may grant a person bail.
    2 See section 16 for when the prescribed police officer must refuse to grant a person bail.
    (3) If the prescribed police officer is satisfied the person may be granted bail under this Act, the officer must—
    (a) grant bail to the person and release the person from custody; or
    (b) issue and serve on the person a notice to appear and release the person from custody.
    (4) A person granted bail and released in accordance with this section shall be released—
    (a) pursuant to section 14; or
    (b) on conditions for the person’s release made by the police officer pursuant to section 11.
    Example: For the release of a person on bail subject to a special condition imposed under section 11 (2) requiring the person to surrender the person’s current passport, see section 11AA.
    (5) If the prescribed police officer refuses to grant bail to a person under this section, the officer must write the officer’s reasons for the refusal—
    (a) on the papers relating to the person; or
    (b) on the warrant; or
    (c) in a register or record of persons in custody.
    (6) The keeping of the person in custody is not unlawful only because of a failure to comply with subsection (5).
    (7) A grant of bail to a person under this section, the issuing and serving on a person of a notice to appear and the person’s release from custody thereon discharges the duty of taking that person before a justice to be dealt with according to law.
    (8) A court before which a person granted bail pursuant to this section appears may enlarge, vary or revoke bail so granted.
    (9) This section does not apply if the arrested person is a child.
    (10) In this section—

    “notice to appear” see the Police Powers and Responsibilities Act 2000 , schedule 6 .

    “officer-in-charge” , of a police station or police establishment, includes a police officer nominated by the officer-in-charge of the police station or police establishment as the officer-in-charge of the police station or police establishment during the officer-in-charge’s absence.

    “prescribed police officer”, in relation to a person in custody, means—
    (a) if the person is in custody at a police station or police establishment—the officer-in-charge of the police station or police establishment; or
    (b) if the person is in custody at a watch-house—
    (i) the watch-house manager; or
    (ii) another police officer whose duties include performing functions at the watch-house in relation to persons in custody.

  • SECTION 8 Power of court as to bail
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    (1) A court, subject to this Act—
    (a) may grant bail to a person held in custody on a charge of or in connection with an offence if—
    (i) the person is awaiting a criminal proceeding to be held by that court in relation to that offence; or
    (ia) the court is a Magistrates Court and the person is awaiting an appeal under the Justices Act 1886 , section 222 to be held in the District Court; or
    (ii) the court has adjourned the criminal proceeding; or
    (iii) the court has committed or remanded the person in the course of or in connection with a criminal proceeding to be held by that court or another court in relation to that offence; and
    (b) may enlarge, vary or revoke bail so granted.
    Example:
    1 If the court is a Magistrates Court, see the Justices Act 1886 , part 6A , for provisions about the use of video link facilities or audio link facilities for proceedings, including bail proceedings.
    2 The provisions about the sexual assault counselling privilege in the Evidence Act 1977 , part 2 , division 2A apply in relation to bail proceedings.
    (2) A person in custody on a charge of or in connection with an offence who is not granted bail or released under section 11A must, unless the person has been sentenced for that offence, be remanded in custody.
    (3) Save where this Act or any other Act otherwise provides, an enlargement of bail may, if the court thinks fit, be granted in the absence of the defendant.
    (4) A person to whom bail is granted shall not be released from custody while the person is, for any other cause, being lawfully held in custody.
    (5) The powers of the Court of Appeal with respect to bail may be exercised by a judge of the Supreme Court in the same manner as they may be exercised by the Court of Appeal, but, if the judge refuses an application with respect to bail, the person making the application may apply to the Court of Appeal and that court shall hear and determine the application.

  • SECTION 9 Duty of court to grant bail in certain cases?
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    Where a person held in custody on a charge of an offence of which the person has not been convicted appears or is brought before a court empowered by section�8 to grant bail to the person in relation to that offence, the court shall, subject to this Act, grant bail to that person or enlarge or vary bail already granted to the person in relation to that offence.

  • SECTION 10 General powers as to bail?
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    (1) The Supreme Court or a judge thereof may, subject to this Act, grant bail to a person held in custody on a charge of an offence, or in connection with a criminal proceeding, or enlarge, vary or revoke bail granted to a person in or in connection with a criminal proceeding whether or not the person has appeared before the Supreme Court in or in connection therewith.
    (2) Notwithstanding that a person has been given in charge to the jury in connection with the person’s trial commenced in the Supreme Court or the District Court the trial judge may in the trial judge’s discretion exercise the powers conferred on a court by section 8 (1) to grant bail to that person or to enlarge, vary or revoke bail already granted to the person.
    (3) A decision as to bail made in accordance with subsection (2) by a trial judge shall be final and, notwithstanding this Act, a defendant in respect of whom such decision has been made shall not have the right to make a further application for bail in relation to the custody in which the defendant is then held.

  • SECTION 10A No court fee payable for making application to Supreme Court
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    No fee is payable to an office of the Supreme Court for the making of an application for bail to the Supreme Court or a judge of the court.

  • SECTION 10B No costs order
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    (1) A court may not make any order concerning costs in a bail proceeding.
    (2) It does not matter whether the bail proceeding started, or the relevant offence was committed, before or after the commencement of this section.
    (3) In this section—

    “bail proceeding” includes—
    (a) an application under this Act; and
    (b) an application to grant, enlarge, vary or revoke bail under another Act; and
    (c) an appeal to the Court of Appeal from an order made on an application mentioned in paragraph (a) or (b).

  • SECTION 11 Conditions of release on bail
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    No fee is payable to an office of the Supreme Court for the making of an application for bail to the Supreme Court or a judge of the court.

  • SECTION 10A No court fee payable for making application to Supreme Court
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    (1) A court or police officer authorised by this Act to grant bail shall consider the conditions for the release of a person on bail in the following sequence—
    (a) the release of the person on the person’s own undertaking without sureties and without deposit of money or other security;
    (b) the release of the person on the person’s own undertaking with a deposit of money or other security of stated value;
    (c) the release of the person on the person’s own undertaking with a surety or sureties of stated value;
    (d) the release of the person on the person’s own undertaking with a deposit of money or other security of stated value and a surety or sureties of stated value;
    but shall not make the conditions for a grant of bail more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.
    (2) Where a court or a police officer authorised by this Act to grant bail considers that the imposition of special conditions is necessary to secure that a person—
    (a) appears in accordance with the person’s bail and surrenders into custody; or
    (b) while released on bail does not—
    (i) commit an offence; or
    (ii) endanger the safety or welfare of members of the public; or
    (iii) interfere with witnesses or otherwise obstruct the course of justice whether in relation to the person or another person;
    Example:
    • a special condition that prohibits a person from associating with a stated person or a person of a stated class
    • a special condition that prohibits a person from entering or being in the vicinity of a stated place or a place of a stated class
    that court or police officer shall impose such conditions as the court or police officer thinks fit for any or all of such purposes.
    (3) Without limiting subsection (2) , a special condition may prohibit a person from doing, or attempting to do, any of the following while the person is released on bail—
    (a) entering or remaining in stated licensed premises or a stated class of licensed premises;
    (b) entering or remaining in, during stated hours, a stated area that is designated by its distance from, or location in relation to, the stated licensed premises or stated class of licensed premises mentioned in a special condition imposed under paragraph (a);
    Example:
    • a special condition that prohibits a person from entering or remaining in, between the hours of 10p.m. and 6a.m., an area that is within 10m of stated licensed premises mentioned in a special condition imposed under paragraph (a)
    • a special condition that prohibits a person from entering or remaining in, between the hours of 11p.m. and 5a.m., a stated street, or an area abutting several stated streets, that is located near stated licensed premises mentioned in a special condition imposed under paragraph (a)
    • a special condition that prohibits a person from entering or remaining in, between the hours of 11p.m. and 5a.m., the safe night precinct under the Liquor Act 1992 in which the stated licensed premises mentioned in a special condition imposed under paragraph (a) are located
    (c) attending or remaining at a stated event, to be held in a public place, at which liquor will be sold for consumption.
    (4) A court or a police officer authorised by this Act to grant bail for the release of a person must consider the imposition of a special condition mentioned in subsection (3) if—
    (a) the alleged offence to which the bail relates involved the use, threatened use or attempted use of unlawful violence to another person or property; and
    (b) having regard to the evidence available to the court or the police officer, the court or the police officer is satisfied that the alleged offence was committed in licensed premises or in a public place in the vicinity of licensed premises.
    (4AA) If bail for a person is subject to a special condition mentioned in subsection (3) —
    (a) for bail that is granted by a police officer at a police station, watch-house or police establishment (each a
    “relevant place” )—a police officer may detain and photograph the person at the relevant place for the purposes of the Police Powers and Responsibilities Act 2000 , chapter 19 , part 5B ; or
    (b) otherwise—the court may impose a condition that requires the person to report to a police station within 48 hours after bail is granted to be photographed under the Police Powers and Responsibilities Act 2000 , chapter 19 , part 5B .
    (4A) A court or a police officer authorised by this Act to grant bail for the release of a person who is not an Australian citizen or permanent resident must consider the imposition of a special condition under subsection (2) —
    (a) requiring the person to surrender the person’s current passport; and
    (b) prohibiting the person from applying for a passport.
    (5) Conditions imposed pursuant to subsection (2) shall not be more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.
    (6) If a court that grants bail on an adjournment of a hearing or while the defendant is awaiting trial considers an investigation ought to be made into the defendant’s physical or mental condition, the bail may be made subject to a condition that the defendant undergo medical examination—
    (a) by a doctor at a specified institution or place other than a high security unit under the Mental Health Act 2016 ; or
    (b) by a specified doctor.
    (7) However, bail may be made subject to a condition that the defendant undergo a medical examination only if the proposed examination is an examination the defendant could lawfully be required to undergo if the defendant remained in custody.
    (8) If bail is subject to a condition mentioned in subsection (6) , the court must arrange for a statement containing the following matters to be given to the institution, place or doctor—
    (a) the reasons for the investigation;
    (b) the information before the court about the defendant’s physical or mental condition.
    (9) Without limiting a court’s power to impose a condition on bail under another provision of this section, a Magistrates Court may impose on the bail a condition that the defendant participate in a rehabilitation, treatment or other intervention program or course, after having regard to—
    (a) the nature of the offence; and
    (b) the circumstances of the defendant, including any benefit the defendant may derive by participating in the program or course; and
    (c) the public interest.
    Example:
    1 The defendant does not commit an offence against section 29 by breaking the condition. See section 29 (2)(c).
    2 Section 30 sets out the procedures for varying the defendant’s bail if the condition is broken or is likely to be broken.
    (9A) Section 11AB also provides for a condition requiring completion of a Drug and Alcohol Assessment Referral course that may be imposed on a person’s release on bail in particular circumstances.
    (10) In this section—

    “Australian citizen” see the Australian Citizenship Act 2007 (Cwlth) , section 4 .

    “permanent resident” means—
    (a) the holder of a permanent visa within the meaning of the Migration Act 1958 (Cwlth) , section 30 (1) ; or
    (b) a New Zealand citizen who is the holder of a special category visa within the meaning of the Migration Act 1958 (Cwlth) , section 32 .

  • SECTION 11AB Condition requiring completion of DAAR course
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    (1) This section applies to a court authorised by this Act to grant bail for the release of a person.
    (2) If the person consents to completing a DAAR course, the court may impose a condition for the person’s release that the person complete a DAAR course by a stated day.
    Example:
    1 The person does not commit an offence against section 29 by breaking the condition. See section 29 (2)(c).
    2 Section 30 sets out the procedures for varying the person’s bail if the condition is broken or is likely to be broken.
    (3) In deciding whether to impose the condition, the court must have regard to the following—
    (a) the nature of the offence in relation to which bail is proposed to be granted;
    (b) the person’s circumstances, including any benefit the person may derive by completing a DAAR course;
    (c) the public interest.
    (4) However, subsection (2) does not apply if—
    (a) the person has completed 2 DAAR courses within the previous 5 years; or
    (b) the person is under 18 years; or
    (c) section 11A applies.
    (5) This section does not limit the conditions the court may impose under section 11 .
    (6) In this section—

    “approved provider” means an entity approved by the chief executive (health) by gazette notice to provide DAAR courses.

    “chief executive (health)” means the chief executive of the department in which the Health Act 1937is administered.

    “DAAR” stands for Drug and Alcohol Assessment Referral.

    “DAAR course” means a course provided to a person by an approved provider in which—
    (a) the person’s drug or alcohol use is assessed; and
    (b) the person is given information about appropriate options for treatment and may be offered counselling or education.

  • SECTION 11A Release of a person with an impairment of the mind
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    (1) This section applies if a police officer or court authorised by this Act or the Youth Justice Act 1992 to grant bail considers—
    (a) a person held in custody on a charge of or in connection with an offence is, or appears to be, a person with an impairment of the mind; and
    (b) the person does not, or appears not to, understand the nature and effect of entering into an undertaking under section 20; and
    (c) if the person understood the nature and effect of entering into the undertaking, the person would be released on bail.
    (2) The police officer or court may release the person without bail by—
    (a) releasing the person into the care of another person who ordinarily has the care of the person or with whom the person resides; or
    (b) permitting the person to go at large.
    (3) A person’s release is on condition the person will surrender, at the time and place stated in the notice under section 11B, into the custody of the court stated in the notice.
    (4) If the person surrenders into the custody of the court stated in the notice, the court may release the person again under subsection (2).
    (5) A court authorised by this Act or the Youth Justice Act 1992 to grant bail may revoke a release.
    (6) A person’s release by a police officer discharges any duty to take the person before a justice to be dealt with according to law.
    (7) In this section—

    “person with an impairment of the mind” means a person who has a disability that—
    (a) is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and
    (b) results in—
    (i) a substantial reduction of the person’s capacity for communication, social interaction or learning; and
    (ii) the person needing support.

  • SECTION 13 When only the Supreme Court may grant bail
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    Only the Supreme Court or a judge of the Supreme Court may grant bail to a person charged with an offence under the Criminal Code if, on conviction, the sentencing court will have to decide which of the following sentences to impose on the person—
    (a) imprisonment for life, which cannot be mitigated or varied under the Criminal Code or any other law;
    (b) an indefinite sentence under the Penalties and Sentences Act 1992 , part 10 .

  • SECTION 14 Release of persons apprehended on making deposit of money as security for appearance
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    (1) This section applies if—
    (a) a person, who has been arrested in connection with a charge of an offence, other than an indictable offence or an offence mentioned in the schedule, is delivered into the custody of a police officer who is—
    (i) the officer-in-charge of a police station or police establishment; or
    (ii) a watch-house manager; and
    (b) the person has not first appeared before a justice in relation to the offence; and
    (c) the police officer is satisfied the person cannot be taken promptly before a court.
    (1A) If the police officer considers it appropriate, the police officer may grant bail to the person and release the person from custody on the person making a deposit of money as security for the person’s appearance before a court on the day and at the time and place notified to the person under this section.
    (1B) If either of the following happens, the police officer may release the person without bail—
    (a) a person charged with being drunk in a public place is released into the care of a person at a place of safety under the Police Powers and Responsibilities Act 2000 , section 378 ;
    (b) a person charged with a minor drugs offence within the meaning of the Police Powers and Responsibilities Act 2000 , schedule 6 signs an agreement to attend a drug diversion assessment program under section 379 of that Act.
    (2) The police officer who accepts a deposit of money from a person and grants bail to the person under subsection (1A) or the Youth Justice Act 1992 , part 5 —
    (a) shall cause a bench charge sheet to be completed with the following particulars and kept at the police establishment or watch-house—
    (i) the name, place of residence and occupation of the person;
    (ii) a short statement of the offence;
    (iii) the amount of the deposit of money;
    (iv) the day, time and place appointed for the person’s appearance before the court or justice and the court or justice before which or whom the person is required to appear; and
    (b) must give the person a notice in the approved form that includes the particulars required under a regulation.
    (3) The police officer who accepts a deposit of money from a person and grants bail to the person at a place other than a place for holding Magistrates Courts and thereupon releases the person from custody shall cause the bench charge sheet referred to in subsection (2) (a) to be forwarded to the clerk of the court at the place where that person is required to appear.
    (4) Without limiting subsection (3) , the bench charge sheet may be forwarded by electronic communication.
    (5) Where a person granted bail and released from custody pursuant to this section fails to appear before a court or justice in accordance with the bail, the court or justice shall, subject to subsections (7) and (9), order the forfeiture of the deposit of money made by the person in connection with the bail.
    Example: If an order is made under this subsection, an order may also be made under the Justices Act 1886 ,section 150A to end the complaint in relation to the matter for which the person was granted bail.
    (6) Where a person granted bail and released from custody pursuant to this section appears before a court or justice in accordance with the bail, the court or justice shall order that the amount of the deposit of money paid by the person be refunded to the person unless the court or justice orders that the amount or a part thereof be applied in or towards payment of any penalty or costs imposed or awarded or unless, where the hearing is adjourned and the person is permitted to go at large without bail, the court or justice orders that the amount or a part thereof be applied as security for the person’s appearance at the time and place to which the hearing is adjourned or to be determined (which the court or justice is hereby empowered to do) whereupon, in the latter case, if the person fails to appear at the time and place to which the hearing is adjourned or that has been determined the court or justice shall deal with the deposit of money in accordance with subsection (5) and that subsection shall apply and extend accordingly.
    (7) Where a person granted bail and released from custody pursuant to this section does not appear in accordance with the bail but the person’s lawyer applies to the court or justice for an adjournment of the hearing and the court or justice grants the adjournment, the court or justice may, in lieu of ordering the amount of the deposit of money to be forfeited, order that the amount or a part thereof be applied as security for the person’s appearance at the time and place to which the hearing is adjourned or to be determined or permit the person to go at large without bail.
    (7A) If the person fails to appear at the time and place appointed or determined for the continuation of the hearing in accordance with the bail the court or justice shall deal with the deposit of money in accordance with subsection (5) and that subsection shall apply and extend accordingly.
    (8) Subsections (6) to (7A) apply in relation to the proceedings before a court or justice at all times and places to which the hearing is, from time to time, adjourned.
    (9) Where a person has been granted bail and released thereon after making a deposit of money as security for the person’s appearance and the hearing is adjourned pursuant to subsection (7) to a time and place to be determined and that person does not appear at the time and place so determined, steps shall not be taken to forfeit such deposit of money unless the court or justice is satisfied that reasonable notice of the time and place so determined has been given to the person.
    (10) This section does not prejudice or in any way affect—
    (a) the powers of a court or justice with respect to adjournments or the issue of warrants of apprehension; or
    (b) the operation of any Act relating to the forfeiture of bail.

  • SECTION 10A No court fee payable for making application to Supreme Court
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    No fee is payable to an office of the Supreme Court for the making of an application for bail to the Supreme Court or a judge of the court.

FAQs

  • (1) Where a Magistrates Court adjourns the hearing of a charge of an offence other than an indictable offence or an offence specified in the schedule, the court (whether or not the defendant is already on bail) may—
    (a) grant bail to the defendant and, in lieu of ordering the defendant to enter into an undertaking, order that the defendant be released from custody on making a deposit of money with the clerk of the court as security that the defendant will surrender into custody; or
    (b) permit the defendant to go at large without bail on the condition that the defendant will surrender into custody.
    (2) Where—
    (a) a person accepts a deposit of money from a defendant pursuant to subsection (1) (a), that person; or
    (b) a Magistrates Court permits a defendant to go at large pursuant to subsection (1) (b), the clerk of the court;
    must give the defendant a notice in the approved form that includes the particulars required under a regulation.
    (3) Where a defendant granted bail pursuant to this section and released from custody fails to surrender into custody, the court shall, subject to subsections (5) and (7), order the forfeiture of the deposit of money made by the defendant in connection with the bail.
    (4) Where a defendant granted bail pursuant to this section and released from custody surrenders into custody, the court shall order that the amount of the deposit of money paid by the defendant be refunded to the defendant unless—
    (a) it orders that the amount or a part thereof be applied in or towards payment of any penalty or costs imposed or awarded; or
    (b) where the hearing is adjourned, and the defendant is permitted to go at large without bail, the court orders that the amount or a part thereof be applied as security that the defendant will surrender into custody.
    (4A) In the case specified in subsection (4) (b), if the defendant fails to surrender into custody the court shall deal with the deposit of money in accordance with subsection (3) and that subsection shall apply and extend accordingly.
    (5) Where a defendant granted bail pursuant to this section and released from custody fails to surrender into custody, but the defendant’s lawyer applies to the court for an adjournment of the hearing and the court grants the adjournment, the court may—
    (a) in lieu of ordering the amount of the deposit of money to be forfeited, order that the amount or a part thereof be applied as security that the defendant will surrender into custody; or
    (b) permit the defendant to go at large without bail on the condition that the defendant will surrender into custody.
    (5A) Where an order is made under subsection (5) (a) and the defendant fails to surrender into custody the court shall deal with the deposit of money in accordance with subsection (3) and that subsection shall apply and extend accordingly.
    (6) Subsections (4) to (5A) apply in relation to proceedings before a Magistrates Court at all times and places to which the hearing is adjourned.
    (7) Where a defendant has been granted bail and releasedthereon after making a deposit of money as security that the defendant will surrender into custody and the hearing is adjourned pursuant to subsection (5) to a time and place to be determined and the defendant fails to surrender into custody the court shall not make an order forfeiting the deposit of money unless it is satisfied that reasonable notice of the time and place so determined has been given to the defendant.



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