Bail Applications

When charged with a criminal offence in Queensland, an accused person will generally either be remanded in custody, or granted bail into the community, until the finalisation of their matter.  

There are a few different types of bail that can be granted to an accused person. 

Notice to Appear

A Notice to Appear is a document issued by police stating that you have been charged with an offence, and that you need to attend court to answer to the charge. 

If you have been issued with a Notice to Appear, you will need to attend the specified court at the time and date stated on the notice.  At the first mention of your matter, it is likely that the Magistrate will grant you bail, which is a document that must be signed before you leave the courthouse.  A bail undertaking is a promise to come back to court when you are next required to, and can contain other conditions in some circumstances. 

Watch-house Bail

If you are charged with a criminal offence, police have the option of granting you bail from the watch-house where you have been charged.  The bail undertaking will inform you which date you are required to appear in court for your charge, as well as inform you about any other conditions that are required to be complied with.  

Common bail conditions include a reporting condition, where an accused person is required to report to a police station near their residence on specified days for the duration of their matter, and a residential condition, where an accused person is required to reside at a specific address.  Other conditions for more serious offences can be a “no-contact” condition which is generally imposed where the offence has a victim that the accused person is not able to have contact with, and a condition that the accused person is not to leave the state of Queensland without permission.  

Presuming the accused person does not breach their bail undertaking, they are permitted to remain on bail for the duration of their matter.  Often, matters will have more than one court appearance.  An accused person’s bail can be requested to be enlarged at each mention of their matter.  If you have a lawyer, your lawyer can request that your appearance be excused at future mentions of your matter until the matter is finalised. 

If police refuse to grant you bail, you will need to apply to the Court for bail.

How can a criminal lawyer assist with a bail application?

Receiving bail is not an automatic right.  Pursuant to section 16 of the Bail Act, the Magistrate must be satisfied of a number of things to grant an accused person bail.  The court will refuse to grant a person bail if the Magistrate considers that there is an “unacceptable risk” that if granted bail, the accused person would:

• Fail to appear and surrender into custody; or
• Would, whilst on bail:
• Commit an offence; or
• Endanger the safety or welfare of a person who is claimed to be a victim of the offence, or anyone else’s safety or welfare; or
• Interfere with witnesses or otherwise obstruct the course of justice. 

In assessing whether there is an “unacceptable risk” with respect to any of the above events, the court must take into account factors such as:

• The nature and seriousness of the offence;
• The strength of the evidence;
• The accused person’s character, background, employment and home environment;
• Any history of previous grants of bail to the accused person and whether these have been breached;
• Whether the accused person has any criminal history;
• Whether there is a risk of the accused person fleeing the State; and
• Whether there is a risk that the accused person will commit further offences.

Our lawyers know the information, detail and legal arguments that a Magistrate requires to be satisfied of the criteria under the Bail Act.  We will be able to put your case forward in a way that allows you the best chance of receiving bail. 

Speak with one of our experienced criminal lawyers today, who can discuss the intricacies of the law and the facts of your case with you.  We have experience in acting for clients who have made applications for bail before the Magistrates, District and Supreme Courts. 

If the police refuse to grant you bail from the watch-house, the next step is to apply to the Magistrates Court for bail.

Generally, an accused person will be produced from the watch-house to court for the bail application. 

During the application, the Magistrate will need to consider those factors set out in section 16 of the Bail Act when determining whether or not to grant an accused person bail.  

If bail in the Magistrates Court is refused, you will be remanded in custody until the finalisation of your matter. You can only apply to the Magistrates Court again if there has been a “material change in circumstances”.  Otherwise, you will need to make a Supreme Court bail application. 

Supreme Court Bail

If an accused person is refused bail before the Magistrates Court, they are able to apply to the Supreme Court.  The Supreme Court has the power to issue an order granting an accused person to be released on bail, even if bail was refused in a lower court.  This process can happen relatively quickly, you do not have to wait until there has been a “material change in circumstances”.

The same considerations will apply for a Supreme Court Judge to determine a bail application.  You will also need to provide evidence, in the form of an affidavit, about why there has been a change in circumstances since you last applied for bail and any other relevant factors.  We would strongly recommend having an experienced criminal lawyer draft these documents.  The preparation of this material is critical to a successful bail application.  

What happens if I breach my bail?

It is important to comply with any bail conditions that are imposed on you.  Contravening any conditions of a bail undertaking is a criminal offence, known as “breach of bail”.  

The maximum penalty for the offence of breach of bail is 2 years imprisonment or 40 penalty units (1 penalty unit = $137.85 in 2021).  The court is also able to record a criminal conviction on an accused person’s history for this charge, if convicted.   If the breach is relating to the person now showing up for court, the court can issue a warrant for their arrest.  The court also has the power to revoke an accused person’s bail, and remand them into custody, particularly if there have been repeated breaches of bail.  For  those reasons, it is crucial to comply with your bail undertaking. 

A breach of bail places someone in a “show cause” situation, if they are applying for bail again.  This is a more difficult hurdle to overcome during a bail application, as the Magistrate must be satisfied, if granting bail, that the accused person has shown cause as to why their continued detention is not justified.  The onus is on the accused person to prove this.  This consideration does not apply to a bail application where an accused person has not breached their bail, where the police are required to provide why an accused person should not be granted bail.

Remember, bail conditions are able to be varied, either with the consent of the police or by making an “application to vary bail” before the court.  Factors such as work commitments and moving house, mean that an accused person might need to vary their reporting condition, or their residential condition.  Our criminal defence solicitors are able to assist you in any bail variation to minimise disruption to your life.

To discuss your matter with one of our criminal defence lawyers, get in touch with us today on 07 3180 0180 or [email protected].