Bail in Queensland

Bail under Queensland law in its simplest form is a promise by the defendant to go to the court on another date. In other countries this is often do by providing cash or some other financial surety to ensure the person returns to court though in Queensland that would usually only be done for very serious allegations of crime where the risk of non-appearance is high, in most cases in Queensland bail is just a written promise to attend court on a set date and time.

The idea of bail is simple, if bail didn’t exist then people might ignore their criminal charges and not attend the court or the police would have to keep everyone accused of a crime in jail until they dealt with their charges. Neither of those options society would accept so that is why we have the bail laws we do in Queensland.

Bail can be granted by police or by a court.  We will look at that in more detail below.

If you are reading this article as a family member has been denied bail and you need urgent advice or for us to do an urgent bail application then please contact us.

 

Police Bail

Bail becomes relevant if a person has been charged with an offence. Once charged, police must then decide what to do from the following three options:

1. Serve the person with a notice to appear,
2. Place the person on bail,
3. Refuse to grant bail, place the person in custody, and bring him before a court as soon as possible.

The Police Powers and Responsibilities Act and Bail Act guide the police and courts in how they are to decide which path to follow.

 

Notice to Appear

Serving someone with a notice to appear prevents the need for police to arrest a person and take him into custody. A notice to appear is generally served for traffic offences, such as drink driving and drug driving. A notice to appear will, among other things, state the offence or offences the person is charged with and designate a court and date at which the person served with the notice must appear.

 

Releasing on Bail or Refusing to Grant Bail

Police will generally prefer bail over a notice to appear for serious offences. When a police officer is deciding whether or not to grant bail, the officer must assess whether there is an:

Unacceptable risk that the defendant, if released on bail—

1. would fail to appear and surrender into custody; or
2. would, while released on bail—
3. commit an offence; or
4. endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
5. interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
6. that the defendant should remain in custody for the defendant’s own protection.

In deciding whether there is an unacceptable risk as stated above, the officer must have regard to matters including:

(a)    the nature and seriousness of the offence;

(b)    the character, antecedents, associations, home environment, employment and background of the defendant;

(c)     the history of any previous grants of bail to the defendant;

(d)    the strength of the evidence against the defendant;

(e)    if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community;

(f)      if the defendant is charged with a domestic violence offence or an offence against the Domestic and Family Violence Protection Act 2012, section 177 (2) — the risk of further domestic violence or associated domestic violence being committed by the defendant.

As can be seen, there are many factors to be considered when police are deciding whether they should grant bail. Two examples may help to illustrate what this means in practise. Police may arrest a 20-year-old man with no criminal history for an assault on a stranger outside a bar. Although alcohol-fuelled assaults are taken seriously, given the person is young, with no criminal history, and is unlikely to cause any more trouble with the person allegedly assaulted, police would probably not view him as an unacceptable risk, and it would be a rare day that police would not grant this person bail. By contrast, if police arrest a person for burglary on a liquor store, the person is 44, he has six entries in his criminal history for the same offence and has five entries for failing to appear on bail, police are much more likely to think this person is an unacceptable risk and therefore refuse his bail.

 

Show Cause

In many situations, the ‘unacceptable risk’ test will apply, but there are occasions where a defendant, who is in custody, will have to ‘show cause’ why his continued detention in custody is not justified. A defendant will have to show cause in the following circumstances:

1. When the alleged offence has been committed by the defendant while the defendant was on bail.
2. The defendant is charged:
3. with an indictable offence where he is alleged to have threatened to use a firearm, offensive weapon or explosive.
4. An offence against the Bail Act (for example, fail to appear).
5. Or the person is charged with the following offences in the context of domestic violence:
6. A choking offence,
7. An offence punishable by up to 7 years imprisonment,
8. Threatening violence,
9. Dangerous driving,
10. Deprivation of liberty,
11. Stalking,
12. Injuring animals,
13. Breaching a domestic violence order, if:
14. The offence involved the use, threatened use or attempted use of violence to person or property; or
15. The defendant, within 5 years before the commission of the offence, was convicted of another offence involving the use, threatened use or attempted use of unlawful violence to person or property; or

                                   iii.      The defendant, within 2 years before the commission of the offence, was convicted of another offence of breaching a domestic violence order.

When a defendant is in a ‘show cause’ position, it is customary for police to refuse bail and bring the defendant before a court as soon a reasonably practicable for the Court to make a determination.

 

Court Bail

If police refuse a person’s bail, the person then has the opportunity to apply for bail before a magistrate in the Magistrates Court. The courts must apply the same legal test as police when considering whether to grant bail; see above.

 

Bail Conditions

A lawyer applying for bail on someone’s behalf will often suggest bail conditions. These conditions can be quite broad and are designed to address police concerns around the granting of bail. We have seen a bail condition where a person was excluded from the entire local government area of Caboolture! It is rare, however, for a bail condition to be so extreme. Some examples include:

1. Reporting to a police station one to seven times per week.
2. Prohibitions on contacting or associating with certain people.
3. Prohibitions on using substances such as alcohol or illegal drugs.
4. The requirement for an ankle bracelet.
5. The requirement to live at a suitable address.
6. The (rather obvious) requirement not to commit further offences.
7. Not to attend certain venues or locations.

This is not a complete list, but it gives an idea of the possible bail conditions that can apply.

 

Can a Bail Refusal be Appealed?

In a manner of speaking, yes. If a magistrate refuses a defendant’s bail, he can then make an application to the Supreme Court of Queensland to consider his bail. This will be a hearing ‘de novo’, that is, the Supreme Court will consider the application afresh. The application will be accompanied by written material and affidavits from both the defendant and the prosecution; the judge will also hear oral arguments from each side. This is a complicated process an requires expert legal advice for its merits to be properly considered.

 

Conclusion

As can be seen, there is quite a lot to consider when it comes to bail applications. It can be a complicated process, and it is best to consult with expert solicitors, particularly as one’s liberty is at stake.

We can take on urgent bail applications so if you or a family member need any advice or assistance then contact us for immediate help.

 

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