Bail is a process whereby an arrested person is released from custody while awaiting trial or during the course of a trial. In Queensland, bail is covered by the Bail Act 1980 (Qld) (“the Act”).
Whilst bail cannot be refused as a means of punishment or coercion, authorities may take into consideration other factors as protection of the community from the individual committing further offences. There is a balance which must be exercised between ensuring there is a protection of individuals rights and freedoms, as well as the presumption of innocence of an accused person until proven guilty for the alleged offence.
Who has the power to grant or refuse bail?
Police officers have power to grant bail under section 7 of the act in certain circumstances where a person cannot be taken promptly before a court within 24 hours after the person is taken into custody. The officer after investigating whether or not bail should be granted may:
- grant bail to the person and release the person from custody; or
- issue and serve on the person a notice to appear and release the person from custody.
If the prescribed officer refuses to grant bail, the officer must state their reasons for the refusal in writing in accordance with section 7(4) of the Act.
The court has broader powers to grant bail for any persons appearing on charges before it under section 8 of the Act. The court or police officer authorised under the Act to grant bail may refuse to grant bail if they are satisfied:
- that there is an unacceptable risk that the defendant if released on bail—
- would fail to appear and surrender into custody; or
- would while released on bail—
- commit an offence; or
- 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
- interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
- that the defendant should remain in custody for the defendant’s own protection.
When assessing whether there is an ‘unacceptable risk’ – the court or police officer must have regard to all matters appearing to be relevant and particular. Some relevant considerations may include:
- The nature and seriousness of the offence;
- Defendants personal history, home environment, employment and background;
- History of any previous grants of bail;
- Strength of evidence against the defendant; and
- If the defendant is an Aboriginal or Torres Strait Islander, any submissions made by a justice group representative (for example cultural considerations.
In more serious offences such as murder, bail may only be granted by the Supreme Court in exceptional cases. Section 13 of the Act states:
Only the Supreme Court or a judge of the Supreme Court may grant bail to a person charged with an offence under the Criminal Code if, on conviction, the sentencing court will have to decide which of the following sentences to impose on the person—
- imprisonment for life, which cannot be mitigated or varied under the Criminal Code or any other law;
- an indefinite sentence under the Penalties and Sentences Act 1992, part 10.
In the circumstances where the court or police grants bail to a person, the court or police officer may impose certain conditions upon the grant.
Can conditions be imposed on the grant of bail?
Section 11 of the Act allows for the police officer or court to impose conditions when releasing a person on bail. Certain conditions may include:
- maintaining regular contact with a legal representative;
- paying a cash surety, deposit of money or other form of security which will be released to the person if the bail conditions are adhered to;
- surrendering passport to ensure the person doesn’t leave the country;
- limiting contact with particular person(s); and
- undergo drug test or similar police direction.
The purposes of the conditions are to ensure the person attends his/her next appearance and will not commit any further offences or endanger the welfare of others while on bail. The court or police officer must not make the conditions for a grant of bail more onerous for the person than are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.
What if I breach my conditions?
Breaching your bail conditions is an offence under section 29 of the Act and can carry a maximum penalty of 40 penalty units or 2 yeas imprisonment. If you breach any of your conditions, or you leave the precincts of the court without complying with one of your conditions before leaving court (such as paying a cash surety), the court may issue a warrant for your arrest. If you have missed your next court date or are unsure if you have wholly complied with your bail conditions, you should seek legal advice as soon as possible.
Need to apply for bail?
Our criminal defense lawyers can give you advice and appear in court to make an application. Contact us today for an appointment.