If you have been arrested or charged with a serious criminal offence in Queensland, getting bail is usually the first important issue in your case. Bail determines whether you can remain in the community while your charges are dealt with, or whether you will be held in custody.
For someone with a job, business or family, being refused bail can have immediate consequences. It can also make the practical preparation of a serious criminal case more difficult.
The outcome of a bail application depends on the charge, the prosecution case, your personal circumstances and the risks the court considers would arise if you were released. For this reason, a bail application should be prepared around the particular issues in your case rather than approached as a standard application.
What is bail in Queensland?
Bail allows you to be released from custody while your criminal charge remains before the court. You enter into an undertaking requiring you to return to court when required and comply with any conditions imposed on your release.
Bail in Qld is governed primarily by the Bail Act 1980 (Qld). Under section 9, a court generally has a duty to grant bail to a person who has been charged but not convicted, subject to the other provisions of the Act.
The most important qualification is section 16. A court must refuse bail if it is satisfied there is an unacceptable risk of one of the matters identified in that section.
What is an unacceptable risk in a bail application?
Under section 16(1) of the Bail Act 1980 (Qld), the court must refuse bail if satisfied there is an unacceptable risk that, if released, you would:
- fail to appear and surrender into custody;
- commit an offence;
- endanger the safety or welfare of an alleged victim or another person; or
- interfere with witnesses or otherwise obstruct the course of justice.
Bail can also be refused where the court considers that you should remain in custody for your own protection.
The important question is not whether any risk exists. The court must decide whether the identified risk is unacceptable.
That distinction matters. A properly prepared bail application should identify the prosecution’s concerns and address them directly, including whether appropriate bail conditions can adequately manage the particular risk.
What does the court consider when deciding bail?
Section 16(2) of the Bail Act requires the court to consider all relevant matters when assessing unacceptable risk.
This includes the nature and seriousness of the alleged offence, your character and background, home environment and employment, your history of previous grants of bail and the strength of the evidence against you. Additional considerations apply in particular cases, including domestic violence and terrorism offences.
For many clients, their circumstances outside the allegation are therefore important. Stable employment, family responsibilities, a stable residential address, previous compliance with bail and the absence of a significant criminal history may all be relevant.
The strength of the prosecution case is also expressly relevant. The fact that a charge is serious does not, by itself, determine whether bail should be refused.
What does ‘show cause’ mean for bail in Queensland?
Some bail applications are more difficult because section 16(3) of the Bail Act 1980 (Qld) reverses the usual position.
In an ordinary bail application, the court generally has a duty to grant bail unless satisfied that an unacceptable risk exists. In a show cause application, the defendant must instead satisfy the court why their continued detention in custody is not justified. If they fail to do so, bail must be refused.
Show cause applies in a number of circumstances. These include certain indictable offences allegedly committed while a person is already at large awaiting trial for another indictable offence, offences involving the use or threatened use of a firearm, offensive weapon or explosive substance, and specified domestic violence and other offences.
Whether you are in a show cause position is important because it affects how an experienced criminal lawyer should approach and argue your bail application.
How should a bail application be prepared?
A strong bail application starts with identifying why the prosecution says you should remain in custody.
If the concern is that you may contact the complainant or witnesses, the application should address that risk. If the concern is that you may fail to appear, your residential, employment, family and other ties to Queensland may be important.
The strength of the prosecution case also needs to be considered. Because section 16(2)(d) specifically requires the court to consider the strength of the evidence against you, weaknesses in the prosecution case may be relevant to the bail application.
The proposed conditions then need to respond to the actual risks identified. Simply proposing a long list of restrictive conditions does not necessarily make an application stronger.
This is where early advice from experienced criminal defence lawyers in Brisbane can be important. In a serious case, there may be limited time between arrest and the first court appearance to obtain instructions, consider the prosecution allegations and put together a properly prepared bail proposal.
What bail conditions can the court impose?
Under section 11 of the Bail Act 1980 (Qld), the court can impose conditions on bail. However, the Act also provides that conditions should not be more onerous than necessary, having regard to the nature of the offence, the circumstances of the defendant and the public interest.
Depending on the risks in the particular case, conditions may include requirements concerning where you live, reporting to police, contact with particular people, travel, surrender of a passport or other conduct while the case remains before the court.
The conditions should have a purpose. Where possible, they should address the particular concern that might otherwise cause the court to refuse bail.
What happens if I breach my bail conditions?
Bail conditions must be taken seriously.
Under section 29 of the Bail Act 1980 (Qld), failing to comply with a condition of an undertaking can constitute an offence. Failing to appear in accordance with a bail undertaking is separately dealt with under section 33.
A breach may also result in your arrest and affect the court’s assessment of any future bail application.
If a bail condition becomes impractical or your circumstances change, do not simply ignore it. Section 19 of the Bail Act provides for applications concerning bail previously granted, including applications by a defendant to vary bail.
What happens if bail is refused?
A refusal of bail does not necessarily mean that you must remain in custody until your criminal case is finalised.
The appropriate next step depends on where bail was refused and the circumstances of the case. The Bail Act provides mechanisms for further applications and for applications or reviews involving the Supreme Court.
A further application should not simply repeat the first one. The reasons bail was refused need to be carefully considered, together with whether there is new information, a change in circumstances or a different proposal capable of addressing the court’s concerns.
There are also limits on which courts can grant bail for particular offences. Under section 13 of the Bail Act, only the Supreme Court can grant bail where the punishment is mandatory life imprisonment, including for a person charged with murder.
Ashworth Lawyers regularly acts in serious bail matters, including applications in the Magistrates Court and Supreme Court. You can read more about applying for bail in Qld.
When should I contact a criminal lawyer about bail?
If you know police intend to charge you, or you have already been arrested, you should obtain advice as early as possible.
Police have power to grant bail in certain circumstances. Once a charged person is brought before a court, the court must consider the question of bail.
In a serious case, the time available to prepare can be short. Your lawyer may need to confirm a suitable address, obtain information about your employment and family circumstances, consider the prosecution allegations and identify conditions capable of addressing any alleged risk.
Ashworth Lawyers practises exclusively in criminal defence and represents clients facing serious and complex criminal charges throughout Queensland.
Legal Practice Director Amy Soong is a Queensland Law Society Accredited Specialist in criminal law and leads a team of experienced Brisbane criminal lawyers for serious criminal charges in Queensland.
Frequently asked questions about bail in Queensland
Will I get bail if I have no criminal history?
Having no criminal history may assist, but it does not guarantee bail.
Under section 16(2), your character and background are relevant, but the court must also consider matters including the seriousness of the charge, strength of the prosecution case and any previous history on bail.
Does being charged with a serious offence mean bail will be refused?
No. The seriousness of the offence is relevant under section 16(2)(a), but it is not the only consideration.
The court must assess the particular circumstances of your case and apply the relevant provisions of the Bail Act. Different considerations apply where the charge places you in a show cause position.
What does show cause mean?
Under section 16(3), show cause means that the defendant bears the onus of satisfying the court why detention in custody is not justified.
If the defendant fails to show cause, the court must refuse bail.
Can I apply for bail again if it is refused?
Potentially. The appropriate application depends on which court refused bail and what has happened since that decision.
Before making another application, your lawyer should consider why bail was refused and whether there is further information or a material change in circumstances that can properly address those concerns.
Getting advice about bail in Queensland
Whether bail is granted can have an immediate effect on your work, family and ability to continue your life while defending the charge.
A properly prepared bail application identifies the legal test, the risks relied upon by the prosecution and the evidence or conditions that can properly address those risks. For serious charges, it should also be considered as part of the wider strategy for defending the case.
Ashworth Lawyers is a Brisbane criminal defence firm practising exclusively in criminal law, with a focus on serious and complex charges throughout Queensland.
Its leading criminal defence lawyers are available for confidential and urgent advice about bail for serious and complex charges in Queensland.