What is Bail?

When a person is charged with a criminal offence, they will generally be arrested and taken into police custody for a period of time. Even though they have been arrested and charged, they will be presumed innocent until they either plead guilty, or they are convicted of the charge because their guilt has been proved beyond a reasonable doubt in Court by way of a trial.  It can sometimes be a long time between when a person is arrested and charged and when their matter is finalised.  Until then, the police and/or the Courts need to consider whether the person should be released from custody to stay in the community until their guilt of innocence has been determined and their matter is finalised. 

‘Bail’ is the term used to describe the release of a person from custody who has been charged with an offence but has not yet had their matter finalised before the Court. 

In Queensland, bail is governed by the Bail Act 1980 which sets out:

• the powers of the Court and the police to grant a person bail
• the matters a Court must consider when deciding whether to grant a person bail
• the conditions which can be placed on a person’s release of bail
• the offences a person can be charged with if they do not comply with their bail

Bail can be granted to a person by a Court, or, in some circumstances, by the police. 

The Bail Act requires that a decision be made either by a police officer (normally at a watch-house), or a Court, within 24 hours of a person being taken into police custody and charged. Bail decisions are normally made by a Court, except in cases of minor offending for which police bail is often granted shortly after charge.

When The Court May Refuse Bail

At law, the starting point is that a person charged with an offence has a presumption of bail in their favour.  This means that the Court must grant them bail unless the Court believes they present as an unacceptable risk of: 

• committing further offences whilst on bail; or
• failing to come to Court again when they are told to; or
• interfering with witnesses in a matter; or
• endangering the safety of another person

In a bail application before a Court, the Court must assess the risk associated with releasing the person into the community.  If the Court decides the person  presents as an unacceptable risk, the Court can refuse the person’s bail and order that they stay in custody until their matter is finalised, or until there is some material change in the person’s circumstances which makes it safer to release them from custody. 

When The Presumption of Bail is Reversed – Showing Cause

There are certain circumstances, or types of offences a person may be charged with which have the effect of reversing the presumption of bail. These circumstances include but are not limited to:

• Where the person was already on bail and awaiting trial for an indictable offence and are now charged further indictable offences which are alleged to have been committed whilst on bail and awaiting their trial
• Where a person is charged with an indictable offence which involved the use of a firearm, an offensive weapon or an explosive substance
• Where the person is charged with an offence against the Bail Act for not complying with their bail conditions or failing to appear in Court when they were supposed to. 

When these apply, rather than having the presumption of bail in their favour, the starting point is that the Court must refuse bail unless the person “shows cause”.  In these situations, the person, or their lawyer, will need to convince the Court that it would be unjustified to keep them in custody while they await the final determination of their matter and therefore, they should be released on bail.  

Bail Conditions

In some cases, the Court will grant the person bail on certain conditions.  The conditions a Court will consider for bail will often be designed to mitigate the perceived risk associated with that particular person’s release on bail. 

These conditions can include that while on bail, the person:

• must reside at a particular address 
• must not leave an address within certain hours of the day (a curfew)
• must not contact certain people or go to certain places 
• must report to their local police station at regular intervals 
• must not use illicit drugs, and/or must submit to random trust tests

If the person agrees to these conditions, the Court will grant them bail.  Upon their release they will sign a document called a bail undertaking. The bail undertaking is a written promise to attend their next Court date and to comply with the conditions agreed to with the Court. If a person is released on bail and then does not attend Court when they are supposed to or does not comply with the conditions of their bail, a warrant can be issued for their arrest and they may lose their bail and be returned to custody to await finalisation of their matter. 

Do I Need A Lawyer To Get Bail, Or Can I Just Apply Myself?

You can apply for bail without a lawyer; however, bail applications can be incredibly complex and getting bail (particularly when police are opposing bail, or a person must show cause) can be extremely difficult. It requires careful consideration of a person’s charges, criminal history, the provisions of the Bail Act and any objection to bail material police may be relying on.  

If you make a bail application and it is refused, you will often remain in custody for a long time before your matter is finalised or the Court will consider granting you bail again. For this reason, it is strongly recommended you get legal advice and good legal representation before you make a bail application.  

Time is of the essence when your liberty is at stake. At Armstrong Legal, our team of experienced criminal lawyers will help you get the best possible outcome in your bail application, and your legal matter as a whole.  

Call our team today on 1300 038 223 or lodge an online enquiry here to see how we can help.