What is it?
In criminal law matters you will often see that a person charged with a criminal offence has been granted bail or is applying to the Court.
Bail is a written promise to the Court (in the form of an undertaking) that you will attend to face the charges against you.
In other circumstances this undertaking can include a number of conditions or rules which you must abide by. Some of the conditions a Court may impose in granting Bail are;
- Curfew condition
- Reporting to the local police station
- Must reside at a specific residential address known to the Police
- Not contacting specific people or witnesses
- Not consuming alcohol or drugs
- Submitting yourself to weekly or random drug tests
- Not using the internet
- Providing a surety
- Or any other conditions the Court would deem necessary.
In this article we go through Queensland’s Bail Laws and how to prepare the best possible bail application.
How do I get it?
In Queensland there is a “prima facie” right to bail. Section 9 of The Bail Act 1980 (Qld) says:
“The court has an obligation, subject to the Act, to grant bail or enlarge bail where the person is before the court charged with an offence but has not been convicted.”[1]
What this means is that the starting position for the Court is to grant a person bail unless the Court is satisfied of two (2) things:
- That there is an unacceptable risk of the person:
- Failing to appear at Court or surrender into custody
- Committing further offences
- Endangering the safety of the victim, or themselves, or any other person.
- Interfere with witnesses or obstruct the course of justice. (Footnote)
OR
2. The person should remain in custody for their own protection.
What does the Court look at?
When considering whether or not someone is an unacceptable risk, the Court considers a broad range of issues such as:-
- The strength of the case against them;
- The criminal history or previous grants of bail to the defendant;
- The character and antecedants (background);
- Any associations or affiliations in the community;
- Home environment and;
- Employment
Onus of Proof
The starting point in Queensland is that an accused person has a right to bail and it is for the Prosecution to prove that that the person is an unacceptable risk. This means that it is for the Police to satisfy the Court why you should not be granted bail.
However this position changes when you charged with certain serious charges which will place you in a show cause situation. Section 16 (3) of the Bail act says;
“A defendant charged with an offence listed in s.16(3) must be refused bail unless he or she shows cause why their detention in custody is not justified. This provision places the onus of proof on the defendant on the balance of probabilities and sets aside the presumption in favour of bail in s.9”[2]
In these occasions the onus shifts, and you must show to the Court why it is unjust for you to be in custody. It is important that you get our expert advice before you make this application as it could be the difference in you being sent to jail or being granted bail.
What happens when Bail is refused?
When a Judge or Magistrate refuses Bail you are remanded in custody.
You only get one proper shot at a Bail application and if you are unsuccessful on the first attempt it is quite difficult to apply for bail again. This is because before the Court can consider a second application the Court has to be satisfied that there has been a material change in the circumstances from when the first application was made.
It is often difficult to establish a change in the circumstances, however a common example has been when there is a substantial delay in the charges progressing in Court.
If you are unsuccessful in an application for Bail in the Magistrates Court a further application for Bail can be made to the Supreme Court. This type of bail application does take more time as it involves preparation and filing of material to the Court.
Whats the best way?
It is important that you seek legal advice before you make an application for Bail. It is not difficult in getting a date in Court for a Bail Application, but getting a date in Court doesn’t always mean you are going to get Bail.
It is extremely important to get the best advice so you can have the best preparation for an application for Bail.
If you ever end up in a position where you are being charged by the Police, make sure you remember your rights to silence and call us immediately. Our criminal law team has experience in these matters and are ready to help you along the way.
[1] Section 9 Bail Act 1980 Queensland
[2] Ibid (1) Section 16