In Queensland, bail is a legal right that couples with the presumption of innocence until proven guilty. Bail is governed by the Bail Act 1980 (Qld) and it reflects a broader commitment to individual human rights.
In this article, we will look at what bail is and how it works in Queensland.
What is Bail?
Bail is essentially an agreement that allows a defendant to remain in the community whilst the allegations against them are dealt with in Court.
An individual can apply for bail if they are:
- A defendant seeking release from custody while waiting for their charges to be resolved; and
- There are not exceptional circumstances that would make them an unacceptable risk to the courts, the community or themselves.
Presumption of Bail & Presumption of Innocence
Under Queensland law, most offences carry the presumption of innocence (colloquially, innocent until proven guilty) and with this carries alongside the presumption of bail.
This means, the prosecution bears the onus of proving beyond reasonable doubt that the defendant is guilty or must be treated in such a way that might otherwise be against their ordinary rights to freedom.
There are some exceptions to this, such as serious offences (i.e. murder), that can adversely affect an individual’s right to bail despite the presumption of innocence.
DDP v Alexander
The recent case of DDP v Alexander reaffirmed the Court’s stance on the importance of any person charged with a criminal offence not being treated as such until that person’s guilt has been re-affirmed.
This particular case examined the treatment of individuals whilst being held in custody for the duration of their charges. However, the underlying principles of an individual’s human rights and the necessity of the presumption of innocence were clearly considered to be paramount despite the unproven allegations.
It is always desirable to get legal advice to understand your position regarding bail before going to Court. The Court will often determine whether to grant or refuse bail on the first mention. Thereafter, there are limited options to obtain bail once it has been refused and you have been remanded into custody.
How Bail in Queensland Works
In Queensland, bail can be granted by the Police or the Courts. Queensland Police may grant bail shortly after they arrest the defendant while the Courts assess whether to grant bail during a person’s initial court appearance.
How Bail is Determined
In determining whether to grant bail, Queensland Police and the Courts consider a range of factors. These include:
- Nature and seriousness of the offending
- Defendant’s criminal history
- Whether the defendant poses an unacceptable risk to the community
- Personal circumstances
Police can object to bail if they believe there are exceptional circumstances that would make it dangerous to the community for bail to be granted. If the Police object to bail, the matter will ordinarily be heard in a bail hearing in the Magistrates Court.
What if Bail is Granted?
If bail is granted, it is usually subject to conditions that ensure the accused complies with the requirements of the court. These conditions may include:
- Reporting to a police station regularly;
- Providing an undertaking or bond;
- Complying with a curfew or restrictions on movement;
- Non-contact orders prohibiting contact with certain individuals, including victims or witnesses; and
- Surrendering travel documents.
In most cases, particularly where the prosecution or Police do not object to bail, it will likely be granted on the defendant’s signed undertaking (or promise) to return to court on the next occasion.
It is relatively uncommon for a defendant to pay a bond as part of their bail, though there are circumstances where this condition is imposed.
What if Bail is Refused?
If bail is refused, the defendant must remain in custody until the conclusion of their matter. This can take anywhere between a number of weeks to a number of months.
Possible Reasons for Bail Refusal
Bail can be refused in several situations, particularly when the offence is serious, or the accused is seen as posing an unacceptable risk to the community. Such situations may include:
- Serious violent crimes;
- Offences involving weapons;
- Repeat offenders who have committed offences while on bail;
- Serious domestic violence offences; or
- Offenders who have historically failed to appear in Court when required to do so.
In these circumstances, the burden is on the accused to prove why they should be released on bail, rather than on the prosecution to argue for detention. This is called a ‘show cause’ position and it consequently draws a thin line between the presumption of innocence and the need to protect the community.
In circumstances where a defendant is held in custody, and the sentenced imposed for their offending includes a term of imprisonment, then this is generally regarded as ‘time served’ on that sentence.
I Have Been Given a Notice to Appear, Am I On Bail?
In short, no.
You have been instructed to attend a specific Court on a specific date for your matter to be first heard. During that first mention, the issue of bail will be raised for the Court to determine.
Preparing for an Upcoming Court Date
If you are unsure about how to prepare for your Court date and whether bail is likely to be a contentious issue, you should urgently seek legal advice from a Criminal Lawyer.
Understanding the intricacies of bail is crucial, as it lies at the heart of discussions about justice, fairness, and community protection in Queensland. It is desirable to obtain legal advice from the outset as the issue of bail may potentially shape your rights and freedoms whilst the matter is in Court.
Disclaimer:
The information contained in this newsletter is provided for informational purposes only and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting on the basis of any content included in this newsletter without seeking appropriate legal or other professional advice. The content of this newsletter contains general information and may not reflect current legal developments, verdicts, or settlements. We expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this newsletter.
