Bail Review SA: Supreme Court and Magistrate Reviews of Bail Decisions
Bail reviews in South Australia
A refusal of bail is not the end of the matter. Talon Legal prepares and argues bail reviews before magistrates and in the Supreme Court, including reviews for prescribed applicants who must show special circumstances. If you or someone you know has been refused bail, book a same-day free 30-minute consultation or call (08) 7094 2021 now.
Bail review key facts
| Issue | Position in South Australia |
|---|---|
| Governing law | Sections 14, 15, 15A and 16 of the Bail Act 1985 (SA), version in force from 16 February 2026. |
| Who can apply | The Crown, the person applying for bail, or, for a child, the child or a guardian (section 14(2)). |
| Reviewing authority | A magistrate for a decision of a police officer or justices; the Supreme Court for a decision of any bail authority other than the Supreme Court (section 14(1) and (2)). |
| Review of a magistrate's review | The Supreme Court, with its permission, which should only be granted if there may have been an error of law or fact (section 15A). |
| What the reviewing court does | Reconsiders the application and makes the decision it considers should have been made (section 14(3)). The applicant does not have to show an error. |
| Speed | The reviewing authority must hear and determine the application as expeditiously as possible (section 14(5)). |
| Crown review | If the Crown immediately indicates a review, release is deferred for up to 72 hours or a longer fixed period (section 16). |
| Telephone review | Available in limited cases where no magistrate is immediately available (section 15). |
| Prescribed applicants | Bail is refused unless the applicant establishes special circumstances (section 10A). |
| After a review | A further application is not precluded by a refusal (section 12(2)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Bail refused? How bail reviews work in South Australia
A bail review is the main way to challenge a decision to refuse bail, or a grant of bail on conditions that cannot be met. Reviews are governed by sections 14 to 16 of the Bail Act 1985 (SA). This page states the law current to 5 November 2026.
This guide sits under our Bail SA page, which covers the presumption in favour of bail, conditions and home detention bail. If bail has been granted and a condition broken, see breach of bail. Many reviews arise from domestic violence charges and intervention order contraventions, where the presumption is often reversed.
Free Consultation. We can usually tell you in one call whether a review is worth filing and what it needs. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- Who can review a bail decision?
- What does the reviewing court do?
- Can the prosecution seek a review of a grant of bail?
- What is a telephone review?
- How do reviews work for prescribed applicants?
- What changes the result on review?
- What happens if the review fails?
- How similar reviews tend to play out
- How we run a bail review
- Bail review case law
- Frequently asked questions
Who can review a bail decision?
A decision of any bail authority other than the Supreme Court is subject to review (section 14(1)). The review can be sought by the Crown, by the person applying for bail, or, if that person is a child, by the child or a guardian (section 14(2)).
| Decision made by | Reviewed by | Section |
|---|---|---|
| A police officer or justices | A magistrate, or the Supreme Court | 14(2)(a) and (b) |
| A magistrate, the Magistrates Court, the Youth Court or the District Court | The Supreme Court | 14(2)(a) |
| A magistrate on review of a police or justices decision | The Supreme Court, with its permission | 15A |
| The Supreme Court | No review under section 14 | 14(1) |
Permission for a review of a magistrate’s review decision should only be granted if it appears there may have been an error of law or fact (section 15A(3)). That makes the direct Supreme Court review under section 14(2)(a) the usual route after a refusal in the Magistrates Court.
What does the reviewing court do?
On a review, the reviewing authority reconsiders the application for bail and may make any decision it considers should have been made in the first instance (section 14(3)). The original bail authority must provide any relevant material it holds (section 14(4)), and the application must be heard and determined as expeditiously as possible (section 14(5)).
The applicant does not have to identify an error in the first decision (R v K [2017] SASC 6 at [4], [31]). The Supreme Court has described a review as a hearing de novo rather than an appeal (Palmieri v The King [2024] SASC 153 at [3]). In practice the review is decided on the material put before the reviewing court, so new evidence of an address, guarantors, treatment or likely delay can change the result.
Can the prosecution seek a review of a grant of bail?
Yes. The Crown has the same right to seek a review as the applicant (section 14(2)). If a police officer or counsel for the Crown immediately indicates that a review will be sought, the person’s release is deferred (section 16(1)). The deferral ends when the review is completed or after 72 hours, whichever comes first, unless the reviewing authority fixes a longer period for proper reason (section 16(2)).
Crown reviews succeed where the risk is high. In R v Lombardi [2013] SASC 61, a Director’s review in a serious firearm case was allowed and the bail granted in the Magistrates Court was set aside. In R v Brooker [2020] SASC 169, home detention bail granted on very serious child sexual offence charges was revoked, the Court noting that further charges were a distinct possibility ([10], [12]).
What is a telephone review?
Section 15 provides a quick review by telephone. If an arrested person applies to a police officer or justices, is dissatisfied with the decision, and no magistrate is immediately available nearby, the police officer or justices must, on the person’s written application, contact a magistrate by telephone to review the decision (section 15(1)).
It is not available to an adult refused police bail who can be brought before a magistrate by 4 pm on the next day, or to an adult prescribed applicant refused police bail (section 15(2)). For a child, a guardian can apply (section 15(3)). On the call the magistrate hears the police officer or justices, then the applicant or their lawyer, and the decision on review is then given effect (section 15(6)).
How do reviews work for prescribed applicants?
For a prescribed applicant under section 10A, bail is not to be granted unless the applicant establishes special circumstances justifying release (section 10A(1)). The list in section 10A(2) includes choking in a domestic setting, intervention order contraventions involving violence or threats, serious firearm offences and threats against witnesses; the Bail SA page sets out the categories.
Single judges of the Supreme Court have stated the test consistently:
- the words carry their ordinary meaning and call for a wide and flexible approach, read with the presumption of innocence (R v Buhlmann [2010] SASC 123 at [23]);
- the primary consideration is whether the applicant’s circumstances place them outside the risk Parliament had in mind for the class (R v Lombardi [2013] SASC 61 at [22], [24] to [25]; R v Kooyman [2016] SASC 200 at [20]);
- for an intervention order contravention involving threats, the risk contemplated is further defiance of the order with violence, and conditions that merely address that risk are not themselves special circumstances (R v Fox [2017] SASC 5 at [19], [40]).
A person is taken into custody for section 10A each time police apprehend them on suspicion of an offence (Question of Law Reserved No 3 of 2023 [2024] SASCA 29 at [56]). So a later arrest on a listed offence can make a person a prescribed applicant even if they were already in custody.
Special circumstances have been found on these combinations:
| Case | What was decisive |
|---|---|
| R v Ravesi [2016] SASC 128 | Risk confined to one person, premises about 20 km away, three months already in custody, treatment needs for a brain injury ([13], [19]) |
| R v Sumner [2020] SASC 231 | The complainants had moved interstate, reducing the risks so that the combination was capable of amounting to special circumstances ([31]) |
| Homsi v The Queen [2020] SASC 242 | Relationship over, complainant's whereabouts unknown, no trial expected until 2022 ([39] to [40]) |
| R v Gawel [2021] SASC 67 | Some 15 months on remand that might exceed any sentence; delay Parliament could not have anticipated ([27] to [28]) |
| R v Webb [2019] SASC 8 | Delay, caregiving, work and a limited record, in a case the judge considered finely balanced, where Aboriginal over-representation in custody is likely to tip the scales ([26], [30] to [31]) |
Delay arguments need care. In R v Allsopp [2019] SASC 112, Peek J explained that earlier decisions on delay arose under the serious and organised crime regime in section 3A and must be read in that context ([26], [29]). Delay helps most when it is likely to approach or exceed the sentence the applicant would face if convicted, as in Gawel.
What changes the result on review?
Because the reviewing court decides the application afresh, the strongest reviews bring something the first court did not have. The details that move judges are concrete:
- a suitable address, ideally away from any complainant, with occupants who agree to the conditions;
- a guarantor who knows the applicant and will supervise;
- home detention with electronic monitoring, where the Crown will apply for or consent to it (section 11(3));
- treatment, work or study that will continue on release;
- a realistic estimate of when the trial will be heard, compared with the likely sentence.
In Souris v The Queen [2020] SASC 171, bail was granted on review on strict home detention conditions despite the gravity of a trafficking charge alleged to have been committed while on parole ([20] to [22]). In Palmieri, the prospect of remand outlasting any likely non-parole period carried the review ([27], [31]).
What happens if the review fails?
A refusal does not prevent a further application (section 12(2)), and a change of circumstances can support a fresh one. In Webster v South Australia [2003] SASC 347, a majority of the Full Court held that a single judge’s bail decision on review is final and not open to appeal, while the judges noted that a fresh application remains available. A review of a magistrate’s review decision under section 15A needs the Supreme Court’s permission.
How similar reviews tend to play out
Three illustrations of how sections 10, 10A and 14 apply on ordinary facts. They are not predictions. The result depends on the charge, the record, the evidence filed and the judge.
Lower range. A man refused bail in the Magistrates Court on a theft and breach of bail file applies for a Supreme Court review. He files an affidavit from his mother offering her home and a guarantee, and a letter from an employer. The section 10 presumption applies, and with a firm address and supervision a grant on conditions is a realistic outcome.
Middle range. The Crown indicates a review when a magistrate grants bail to a woman charged with trafficking. Her release is deferred under section 16. On the review, evidence of home detention at her parents’ house, electronic monitoring and her child’s care arrangements is put before the Supreme Court, which decides afresh.
Upper range. A man charged with choking his former partner is a prescribed applicant. He has been on remand for nine months and the trial will not be heard for over a year. Evidence that the relationship has ended, that she lives in another state and that his remand may exceed any sentence can amount to special circumstances, as in Sumner, Homsi and Gawel.
How we run a bail review
A review is decided on affidavits and argument, often within days. We build the evidence first, then the argument.
| Stage | What happens | What we do |
|---|---|---|
| Refusal | Bail is refused, or granted on conditions that cannot be met. | Obtain the reasons and the prosecution's material, and identify what the first court lacked. |
| Preparation | The review application is filed with supporting affidavits. | Prepare affidavits from the applicant, guarantors and the household, and arrange home detention assessments where needed. |
| Crown review | The Crown seeks review of a grant, deferring release under section 16. | Respond within the deferral period with evidence that the conditions meet the risk. |
| Hearing | The reviewing court decides the application afresh. | Argue the presumption, or special circumstances for a prescribed applicant, with the conditions that answer each risk. |
| After the decision | Release on conditions, or a further application when circumstances change. | Advise on compliance, and prepare a fresh application if something material changes. |
We cannot promise that a review will succeed, and no lawyer can. We can make sure the court decides it on the best evidence available.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Bail review case law
These are the Supreme Court and Court of Appeal decisions this guide relies on. The case notes state what each court decided.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| R v K [2017] SASC 6 | Supreme Court | No need to show error on review; presumption as to bail | [4], [31], [33] |
| Palmieri v The King [2024] SASC 153 | Supreme Court | A review is a hearing de novo; remand that may exceed any non-parole period | [3], [27], [31] |
| Webster v South Australia [2003] SASC 347 | Full Court | No appeal from a single judge's bail decision on review (majority) | Prior J [83]; Debelle J [98] |
| R v Lombardi [2013] SASC 61 | Supreme Court | Special circumstances: outside the contemplated risk | [22], [24] to [25] |
| R v Buhlmann [2010] SASC 123 | Supreme Court | Ordinary meaning; wide and flexible approach | [23] |
| Question of Law Reserved No 3 of 2023 [2024] SASCA 29 | Court of Appeal | Taken into custody on each apprehension | [56] |
| R v Kooyman [2016] SASC 200 | Supreme Court | Circumstances typical of the class do not suffice | [20] |
| R v Fox [2017] SASC 5 | Supreme Court | Risk of further defiance of an order; conditions alone not special circumstances | [19], [40] |
| R v Ravesi [2016] SASC 128 | Supreme Court | Confined risk and personal circumstances: home detention bail | [13], [19] |
| R v Sumner [2020] SASC 231 | Supreme Court | Complainants moved interstate: special circumstances | [31] |
| Homsi v The Queen [2020] SASC 242 | Supreme Court | Relationship over and trial delay: special circumstances | [39] to [40] |
| R v Gawel [2021] SASC 67 | Supreme Court | Remand that may exceed any sentence | [27] to [28] |
| R v Webb [2019] SASC 8 | Supreme Court | Finely balanced case; Aboriginal over-representation | [30] to [31] |
| R v Allsopp [2019] SASC 112 | Supreme Court | Earlier delay decisions arose under section 3A | [26], [29] |
| R v Brooker [2020] SASC 169 | Supreme Court | Crown review: home detention bail revoked | [10], [12] |
| Souris v The Queen [2020] SASC 171 | Supreme Court | Review allowed on strict home detention conditions | [20] to [22] |
Case notes
R v K [2017] SASC 6
Hinton J said that on a section 14 review the court reconsiders the application under section 14(3) and the applicant does not need to show error ([4], [31]). His Honour restated that section 10(1) creates a presumption as to bail ([33]), but refused bail given the applicant’s record and history of non-compliance.
Palmieri v The King [2024] SASC 153
Livesey ACJ described a bail review as a hearing de novo rather than an appeal ([3]). With no trial expected before 2027, the applicant might spend longer on remand than under any likely non-parole period, and home detention bail was granted despite a risk of reoffending ([27], [31]).
Webster v South Australia [2003] SASC 347
By a 3 to 2 majority, the Full Court held that a single judge’s decision on bail, including on a section 14 review, is final and not open to appeal (Prior J at [83]; Debelle J at [98]). The judges noted that a fresh application remains open, and all five would have dismissed the appeal on its merits.
R v Lombardi [2013] SASC 61
On a Director’s review, Kourakis CJ accepted that special circumstances cannot be exhaustively defined ([22]) and held that the primary consideration is whether the applicant’s circumstances place them outside the risk posed by the class of prescribed applicants ([24] to [25]). The bail granted in the Magistrates Court was set aside.
R v Buhlmann [2010] SASC 123
A prescribed applicant charged with breaching a victim-protection bail condition was released on review. Sulan J gave special circumstances their ordinary meaning, called for a wide and flexible approach and read the section with the presumption of innocence ([23]).
Question of Law Reserved No 3 of 2023 [2024] SASCA 29
The Court of Appeal held that a person is taken into custody for section 10A on each occasion police apprehend them on suspicion of an offence. The availability of bail depends first on the nature of the charges on which the person is in custody ([56]).
R v Kooyman [2016] SASC 200
Stanley J held that the critical consideration is whether the applicant’s circumstances place him outside the risk posed by the class of prescribed applicants ([20]). A loaded handgun hidden with methylamphetamine was typical of serious firearm offending, and the review was dismissed.
R v Fox [2017] SASC 5
The applicant was a prescribed applicant for an intervention order contravention involving a threat of violence. Hinton J held the risk Parliament contemplated was further defiance of the order with violence ([19]), and that bail conditions addressing that concern did not amount to special circumstances ([40]). The application was refused.
R v Ravesi [2016] SASC 128
The applicant was charged with contravening an interim intervention order by assaulting his half-brother. Nicholson J found his risk was confined to that person and further reduced by premises about 20 km away, and that refusing home detention bail would cause unintended hardship and injustice ([13], [19]). Home detention bail was granted.
R v Sumner [2020] SASC 231
The applicant was a prescribed applicant for alleged choking in a domestic setting. Bleby J found that the complainants’ move to Queensland reduced the risks so that the combination of circumstances was capable of amounting to special circumstances ([31]), and granted strict home detention bail.
Homsi v The Queen [2020] SASC 242
Another choking charge. Livesey J relied on the end of the relationship, the applicant not knowing where the complainant lived, and the prosecution’s acceptance that no trial was likely before the first half of 2022 ([39] to [40]), and granted strict home detention bail.
R v Gawel [2021] SASC 67
The applicant faced some 15 months on remand that might exceed the sentence if convicted ([27]). Parker J found that delay of that extent could not have been anticipated by Parliament ([28]), and bail was granted on strict home detention conditions.
R v Webb [2019] SASC 8
The applicant was charged with threatening a witness. Hinton J said that where the question is finely balanced, the over-representation of Aboriginal people in custody is likely to tip the scales ([30]), and found special circumstances in the combination of delay, caregiving, work and a limited record ([31]).
R v Allsopp [2019] SASC 112
Peek J explained that earlier decisions finding special circumstances in delay arose under the serious and organised crime regime in section 3A, where a determination lapsed after six months without trial, and must be read in that context ([26], [29]). The review was dismissed.
R v Brooker [2020] SASC 169
On a Director’s review of home detention bail granted on serious child sexual offence charges, Livesey J noted that over 50,000 messages were yet to be reviewed and further charges were a distinct possibility ([10]). Bail was revoked ([12]).
Souris v The Queen [2020] SASC 171
The applicant was charged with trafficking methylamphetamine while on parole. Livesey J, “not without some hesitation”, allowed the review and granted bail on strict home detention conditions ([20] to [22]).
Frequently asked questions
Can you appeal a refusal of bail in South Australia?
Yes, by review. A decision of a police officer or justices can be reviewed by a magistrate, and a decision of any bail authority other than the Supreme Court can be reviewed by the Supreme Court (section 14 of the Bail Act 1985).
How quickly is a bail review heard?
The reviewing authority must hear and determine the application as expeditiously as possible (section 14(5)). In practice the timing depends on how quickly the affidavits are ready.
Does a bail review mean the magistrate made a mistake?
No. The reviewing court reconsiders the application and makes the decision it considers should have been made (section 14(3)). The applicant does not have to show error.
Can new evidence be used on a bail review?
Yes. A review is decided afresh on the material before the reviewing court, so a new address, a guarantor, a treatment plan or a delay estimate can be put forward.
Can the prosecution stop someone being released?
The Crown can seek a review of a grant of bail. If it immediately indicates a review, release is deferred until the review is decided or for 72 hours, whichever is sooner, unless a longer period is fixed for proper reason (section 16).
What are special circumstances for bail?
For a prescribed applicant under section 10A, special circumstances are circumstances that place the applicant outside the risk Parliament had in mind for that class of applicant. Courts give the words their ordinary meaning and a wide and flexible approach.
Can delay before trial be a special circumstance?
It can, especially if time on remand may approach or exceed the likely sentence. Delay has been relied on in successful reviews, though decisions on delay under the serious and organised crime regime must be read in their context.
What is a telephone bail review?
A review by a magistrate over the phone where no magistrate is immediately available nearby (section 15). It is not available to an adult who can be brought before a magistrate by 4 pm the next day, or to an adult prescribed applicant refused police bail.
Can a parent apply for a bail review for their child?
Yes. If the person applying for bail is a child, the child or a guardian can apply for a review (section 14(2)).
What if the Supreme Court refuses bail on review?
A further application can be made, particularly if circumstances change (section 12(2)). A majority of the Full Court has held there is no appeal from a single judge’s bail decision on review.
Do I need a lawyer for a Supreme Court bail review?
A review is decided on affidavits and legal argument, and it is often the last realistic chance of release before trial. We prepare the evidence and appear on the review. Call (08) 7094 2021.
South Australian courts we attend for bail reviews
We appear on bail reviews in the Supreme Court in Adelaide and before magistrates in the courts listed below.
Courts we attend
Book a same-day free 30-minute consultation or call (08) 7094 2021.