When a person is charged with criminal offences, they may be granted bail by the police or by a court. If a person is not granted bail, they are remanded in custody until the matter is finalised or until bail is granted. This page deals with bail in Queensland.
Legislation
In Queensland, decisions about bail are made under the Bail Act 1980. When a young person applies for bail, provisions set out in the Youth Justice Act 1992 also apply.
Applying for bail
If a person is charged with offences and not granted bail by the police, they must be taken to a court and given the opportunity to apply for bail as soon as reasonably practicable. This usually occurs on the same day or on the next business day.
A person may also apply for bail at a later stage in their criminal proceeding – such as after the prosecution has served the brief of evidence or after a hearing date has been set.
When a person applies for bail, the court must consider whether there is an unacceptable risk that if released the person would:
- commit an offence
- fail to appear at court
- endanger a person’s safety or welfare
- interfere with witnesses or obstruct the course of justice.
In assessing this, the court will look at the offences the person is charged with and the strength of the case against them, their past criminal and bail record and their personal circumstances including where they live and whether they are employed.
When a person applies for bail, the prosecution will tell the court whether it has any concerns about the person’s release and the reasons for those concerns. For example, if the accused has made threats to harm a person or has failed to attend court while on bail in the past, these would be outlined as bail concerns.
The defence may tender evidence in support of the bail application. This may consist of character references and evidence of their employment and accommodation arrangements. If there are concerns about releasing the person, the defence may propose bail conditions that could be imposed to alleviate these concerns. For example, if the accused is considered a flight risk, the defence may propose a bail condition that they must surrender their passport and report to police regularly while on bail.
Show cause offences
Under section 16 of the Bail Act 1980, when an adult is applying for bail, they may be required to ‘show cause’ why their detention is not justified. This means that there is a presumption against their release, which the defence will have to overcome to obtain bail.
Situations where an applicant for bail must show cause include where they are charged with an indictable offence committed while on bail and where they are charged with an indictable offence involving the use of a firearm or offensive weapon.
Bail conditions
When a person is granted bail, they are conditionally released from custody. The person will always be subject to conditions that they appear before the court in answer to the charges when required to do so and refrain from committing any further offences.
Additional conditions may be attached to a person’s bail where the court has specific concerns about their relief. These conditions are tailored to the accused’s situation and usually relate to the allegations against them and the causes of their alleged offending.
Common bail conditions include:
- that the accused refrain from consuming drugs or alcohol
- that the accused refrain from having contact with specified persons such as alleged victims and witnesses
- that the accused refrain from attending specified premises
- that the accused abide by a curfew
- that the accused or another person agrees to forfeit a sum of money (known as a bail surety) if the bail conditions are breached
- that the accused must report to the police at specified times during each week
Bail in the Children’s Court
When a young person applies for bail, they do so in the Children’s Court.
A young person will not be granted bail if there is an unacceptable risk that:
- the young person will commit an offence that endangers the safety of others (and there is no way of mitigating that risk through the imposition of conditions) (Youth Justice Act, section 48AAA)
- the young person would not surrender into custody or would interfere with a witness or the course of justice if released (Youth Justice Act, section 48AAA)
A young person will not be released on bail if releasing them would endanger their safety because of the circumstances of the offence and there is no reasonable way of ensuring their safety other than keeping them in custody (Youth Justice Act, section 48AE).
A young person who is granted bail may have additional conditions attached to their bail if there are concerns about releasing them. If the young person is over 16, is charged with a serious indictable offence and has previously been found guilty of an indictable offence, these conditions may include a condition that they wear an electronic monitoring device.
Bail in the Supreme Court
Under some circumstances, where a person has been charged with a serious indictable offence, they must apply for bail in the Supreme Court. Unlike a bail application in the lower courts, a Supreme Court bail application must be made in writing using a Form 2 – Application For Bail in the Supreme Court and a Form 11 – Affidavit of Justification.
Remand
If a person is refused bail, they will be remanded in custody until their criminal matter has been finalised or until a court grants them bail.
If the person is an adult, they will be remanded in a prison. If they are a juvenile, they will be remanded in a youth detention centre.
If a person is remanded for a very short period (for example, over a weekend) until their next court date, they may be held in police custody for that time.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
