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What A Court Considers Regarding Bail

When a person is charged with criminal offences in Queensland, they may be granted bail by the police or remanded in custody by the police. If a person is remanded in custody by the police, they must be brought before a court as soon as reasonably practicable so that they can apply for bail if they want to do so. If the person is an adult, this will occur at the Magistrates Court. If they are a juvenile, it will occur at the Children’s Court. 

Is there an unacceptable risk?

Unless the person has been charged with an offence for which a conviction will result in a mandatory term of imprisonment for life (such as murder), a court is obliged to give them bail unless it is satisfied that one of the matters set out in section 16 of the Bail Act 1980 applies.

Section 16 of the Act requires a court to refuse bail if it is satisfied that there is an unacceptable risk that:

  • the person will fail to appear in court at a future date, and/or
  • the person will commit further offences while on bail, and/or
  • the person will endanger the safety or welfare of a victim in the matter, and/or
  • the person will interfere with a witness in the matter.

Section 16 also requires a court to refuse bail if it is satisfied that the defendant should remain in custody for their own protection.

Most often a court will be satisfied of one or more of the “unacceptable risks” on the basis of the person’s past behaviour. If they have failed to answer bail (that is, failed to appear in court when they were ordered to), or if they have committed offences while on bail, a court will be more easily satisfied that it is an unacceptable risk to release them this time.

Bail conditions

Even if a court is satisfied that one of the criteria set down in Section 16 does justify the person’s continued detention, that is not necessarily the end of the matter. In the right circumstances, the court might be persuaded that it can impose conditions on the person which will sufficiently reduce the otherwise unacceptable risk of granting bail. With the correct preparation and negotiation, in some circumstances, the police or prosecution can be persuaded to drop their objection to a grant of bail, particularly if certain bail conditions are accepted, and this will greatly enhance the defendant’s chance of being released.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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