The issue of bail can be a complex one, and can arise in a number of ways depending upon the circumstances.
If you fall foul of the law in Queensland and you become the focus of police attention, it may result in you being charged with a criminal offence and placed before the Courts.
The police have a number of ways of ensuring you appear before the Court. They may serve you with a Summons or a Notice to Appear to get you before a particular Court on a particular time and date or alternatively, they may arrest you.
Watch-house Bail
If you are arrested and processed through the watch-house, the Charge Sergeant has discretion on whether or not you will be released on bail.
For some minor offences you may be released on cash bail, and, if you fail to appear, the monies will be forfeited and that will be the end of the matter.
For more serious matters, the watch-house keeper can release you on bail on your own undertaking. That means you sign an agreement that you will surrender back into custody at the Court at a particular time and place. If you do not appear at the required time and date at the relevant Court, a warrant will be issued for your arrest and when you are located by police you will be arrested and held in custody until you are placed before the next available Court. You will also be subject to a further charge of “failing to appear” pursuant to the Bail Act 1980. This offence has a maximum penalty of 40 penalty units ($4,554.00) and/or two years imprisonment.
If the police decide that they are not going to release you from custody it is incumbent upon them to take you before the next available Court. That is normally the next morning or, if you are arrested on a weekend, it will be on the Monday morning.
Court Granted Bail
Where a person is in custody in charges, ordinarily the starting position is that the Court should grant you bail. If Police Prosecutions wish to object to you being released, it falls upon them to prove to the Court that you pose an unacceptable risk to the community. Those risks are listed below: –
- That you are going to fail to appear and surrender into custody;
- You are likely to commit further offences;
- Endanger the safety or welfare of any person who is claimed to be a victim of the alleged offence or anyone else’s safety or welfare;
- You will interfere with witnesses or otherwise obstruct the course of justice; or
- That you should remain in custody for your own protection.
However, the Act provides that in particular circumstances you may be in a “show cause” situation where the onus is reversed and the starting position is that you are not entitled to be released on bail.
In that situation, the onus falls upon you to convince the Court that you are not an unacceptable risk in relation to what is outlined above. The following charges will place you in a “show cause“ situation: –
- an indictable offence that has been committed whilst you are on bail;
- an offence that is subject to a penalty of mandatory life imprisonment;
- an indictable offence which is alleged you have used or threatened to use a firearm or offensive weapon or explosive substance;
- an offence against the Bail Act;
- an offence against the Criminal Organisation Act 2009; or
- an offence against the Criminal Code section 359 (stalking).
Depending on your particular situation the Court will take into consideration the following matters when making your application for bail. They are: –
- The nature and seriousness of the offence;
- Antecedents, associations, home environment, employment and background;
- The history of any previous grants of bail;
- The strength of the evidence in the matter;
- Likelihood of jail if found guilty of the offence;
- Employment commitments;
- Personal ties and obligations within the jurisdiction;
- Proposed accommodation for the duration of the bail;
- Mental and physical health; and
- Cultural considerations etc.
In addition it may assist in convincing the Court to release you from custody by managing certain risks by offering to comply with certain conditions of bail, such as: –
- A residential condition;
- A curfew;
- Preventing contact with named persons (such as victims and witnesses);
- Refraining from drug and alcohol use and submitting to random tests;
- Providing a surety etc.
Your liberty is a very serious matter. On that basis, it is the case that any bail application should be taken extremely seriously and be prepared properly. If you fail in your initial attempt with an application for bail, you are unable to make a further application for bail in the Magistrates Court without there being any change of circumstances. However, it is open to you to make an application for bail to the Supreme Court. The same legislation applies as discussed above, however it requires the preparation of detailed Affidavit material and this attracts higher costs.
You will always significantly increase your chances of success when making a bail application if you are represented by an appropriately qualified and experienced lawyer.
If you find yourself in a situation where you, or someone you know, needs assistance in applying for bail please do not hesitate to contact Macrossan & Amiet Solicitors.
