What is bail? Bail is a promise that an accused makes to return to court pending final determination of charges. It allows the accused their liberty rather than being remanded in custody.
Who can grant bail? The police (Bail Act 1980 (Qld) s 7) or the courts (Bail Act 1980 (Qld) s 8) but note particularly instances where only the Supreme Court can grant bail (Bail Act 1980 (Qld) s 13). Bail is normally heard in Magistrates Court in geographical district or division in which the defendant lives or offence occurred. The Court can taken into account information of any kind it considers credible or trustworthy enough in the circumstances (s 15(1)(e)). Once bail has been refused, an applicant usually requires a 'material change in circumstances' for a second application. Such a change is one that would justify an order in the applicant's favour (Ex parte Edwards [1989] 1 Qd R 139). The change must usually be of an 'external or exterior' nature, however this principle is not absolute (Re Tesic [2015] QSC 205, [20],[21]). When will bail be granted? Generally presumption in favour of bail (Bail Act 1980 (Qld) s 9). As such USUALLY the prosecution have onus to show why bail should not be granted. They must show: Bail Act 1980 (Qld) s 16(1): (a) that there is an unacceptable risk that the defendant if released on bail-- (i) would fail to appear and surrender into custody; or (ii) would while released on bail-- (A) commit an offence; or (B) 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 (C) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or (b) that the defendant should remain in custody for the defendant’s own protection. |
Bail Act 1980 (Qld)
Assessing Unacceptable Risk: Look to factors in Bail Act 1980 (Qld) s 16(2) but note: 'No grant of bail is risk-free…Recognising that there is always some risk of misconduct when an accused person … is free in society, one moves to the consideration of unacceptable risk' per Thomas J in Williamson v DPP (Qld) [2001] 1 Qd R 99 [para 22]. 'The term "unacceptable" has a function similar to that of the term "substantial" in other statutory settings. It imports a requirement that the likelihood of the relevant future conduct or event is not "trivial or transient"' (Van Tongeren v ODPP (Qld) [2013] QMC 16, [39] citing Condon v Pompano Pty Ltd [2013] HCA 7 at [23]) . '"Unacceptable risk" is expected to be established as a fact to a legally sufficient and satisfactory level of certainty; that is to say, as a matter of probability.' (Van Tongeren v ODPP (Qld) [2013] QMC 16, [41] - see this case also for further detail as to the refusal criteria.) |
UNLESS
The defendant is in a 'show cause' position. The defendant will be required to 'show cause' as to why their detention in custody is not justified (i.e. the presumption is reversed) where they are charged:
Bail Act 1980 (Qld) s 16(3):
(a) with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence; or
(b) with an offence to which section 13 applies; or
(c) with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or
(d) with an offence against this Act; or
Note— For this paragraph, a person proceeded against under section 33(3) is taken to be charged with an offence against this Act—see section 33(6).
(e) with an offence against the Criminal Organisation Act 2009, section 24 or 38; or
(f) with an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2).
Bail Act 1980 (Qld) s 16(3A):
With an offence and it is alleged the defendant is, or has at any time been, a participant in a criminal organisation. Note that the type of offence is irrelevant for this provision, as is whether the defendant is alleged to have been a participant in a criminal organisation when the offence was committed; or whether there is a link between the defendant’s alleged participation in the criminal organisation and the offence with which the defendant is charged (s 16(3C)). However, this section does not apply if the defendant proves that, at the time of the defendant’s alleged participation in the criminal organisation, the organisation did not have, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity (s 16(3D)). (Note the special requirements for decision makers when bail is granted in these situations - outlined in s 16(3A)(b) and s 16(3B).)
Van Tongeren v ODPP (Qld) [2013] QMC 16, [113] 'No specific criteria for deciding when detention is not justified is stated in the Act. However, preventable delays or circumstances that might make incarceration unjustified include a weak prosecution case or excessive preventable delay and, personal factors such as urgent or special medical needs or responsibilities.'
Carew v DPP [2014] QSC 001, [5] 'For the applicant to show cause why his detention in pre-trial custody is not justified it is necessary, although not necessarily sufficient, that there not be an unacceptable risk that he would not appear at trial or that he would commit an offence in the meantime’.
The defendant is in a 'show cause' position. The defendant will be required to 'show cause' as to why their detention in custody is not justified (i.e. the presumption is reversed) where they are charged:
Bail Act 1980 (Qld) s 16(3):
(a) with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence; or
(b) with an offence to which section 13 applies; or
(c) with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or
(d) with an offence against this Act; or
Note— For this paragraph, a person proceeded against under section 33(3) is taken to be charged with an offence against this Act—see section 33(6).
(e) with an offence against the Criminal Organisation Act 2009, section 24 or 38; or
(f) with an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2).
Bail Act 1980 (Qld) s 16(3A):
With an offence and it is alleged the defendant is, or has at any time been, a participant in a criminal organisation. Note that the type of offence is irrelevant for this provision, as is whether the defendant is alleged to have been a participant in a criminal organisation when the offence was committed; or whether there is a link between the defendant’s alleged participation in the criminal organisation and the offence with which the defendant is charged (s 16(3C)). However, this section does not apply if the defendant proves that, at the time of the defendant’s alleged participation in the criminal organisation, the organisation did not have, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity (s 16(3D)). (Note the special requirements for decision makers when bail is granted in these situations - outlined in s 16(3A)(b) and s 16(3B).)
Van Tongeren v ODPP (Qld) [2013] QMC 16, [113] 'No specific criteria for deciding when detention is not justified is stated in the Act. However, preventable delays or circumstances that might make incarceration unjustified include a weak prosecution case or excessive preventable delay and, personal factors such as urgent or special medical needs or responsibilities.'
Carew v DPP [2014] QSC 001, [5] 'For the applicant to show cause why his detention in pre-trial custody is not justified it is necessary, although not necessarily sufficient, that there not be an unacceptable risk that he would not appear at trial or that he would commit an offence in the meantime’.
How is bail granted? Bail must be considered as soon as the person is brought before the Court. To leave the Court precinct an accused must sign a bail undertaking (Bail Act 1980 (Qld) s 20):
this is the form providing the accused's guarantee to return on the specified date. In addition, conditions may be attached to the bail (Bail Act 1980 (Qld) s 11) eg. surety, curfew, reporting, residential, non-contact, drug or alcohol counselling. However, these conditions must not be overly onerous on the circumstances (s 11(1). |
Breach of BailFailing to comply with conditions is an offence (Bail Act 1980 (Qld) s 29)
Failing to appear is an offence (Bail Act 1980 (Qld) s 33) unless the accused shows reasonable cause for failing to appear AND for failing to surrender as soon as reasonably practicable afterwards. |
Example Bail Conditions
* The applicant reside at ....[address] unless ...
* The applicant not depart his/her residence between the hours of 7 p.m. and 7 a.m. unless in the company of ... or someone approved in writing by the DPP.
* The applicant shall report to the OC, [Suburb] police station every Monday, Wednesday and Friday between the hours of 8 a.m. and 5 p.m. or such other times as the DPP consents to in writing.
* The applicant not contact directly or indirectly the complainant or any Crown witnesses.
* The applicant not approach within ... metres of ...
* The applicant shall arrange an appont with ? Alcohol and Drug Service, [address] and thereafter attend with a counsellor as directed by ?
* The applicant not depart his/her residence between the hours of 7 p.m. and 7 a.m. unless in the company of ... or someone approved in writing by the DPP.
* The applicant shall report to the OC, [Suburb] police station every Monday, Wednesday and Friday between the hours of 8 a.m. and 5 p.m. or such other times as the DPP consents to in writing.
* The applicant not contact directly or indirectly the complainant or any Crown witnesses.
* The applicant not approach within ... metres of ...
* The applicant shall arrange an appont with ? Alcohol and Drug Service, [address] and thereafter attend with a counsellor as directed by ?