Making Bail

Due to a variety of reasons, persons charged with an offence will often seek to be granted bail. It may be that bail will allow a defendant to continue to work and support their family, or that bail will avoid a defendant having to spend an excessive amount of time in custody whilst they await their trial.

2 Types of Bail

The Police

In Queensland, after having arrested and charged a person, may grant that person bail until their upcoming court date. After which the defendant will be required to apply to the court to have the bail varied or enlarged (continued until your next court date).

If refused bail by police, a defendant will be required to apply to the court for bail.

The Courts

If you are applying for bail in a lower court, you may appeal a bail decision to the Supreme Court. In some cases a bail hearing may only be heard by the Supreme Court. For example, where a person charged with an offence carrying a penalty of life imprisonment that may not be varied, or an indefinite sentence a person may only be granted bail by the Supreme Court, or by a judge of the Supreme Court.

The Process

Under the Bail Act 1980, there is generally a presumed entitlement to bail where a person in held in custody and faces criminal charges. However this presumption is capable of being rebutted by the prosecution. A presumption to bail does not entitle any person to automatic bail.

Show Cause

It is not always the case that a defendant will have a presumed entitlement to bail, some charges reverse this presumed entitlement, and require the defendant to prove why bail should be granted.

Show Cause Due to the Nature of the Offence

An example of where the presumed entitlement is rebutted, and the defendant is required to show cause as to why custody is not justified is where a defendant has been charged with an indictable offence in which the defendant is alleged to have used or threatened the use of a firearm, offensive weapon or an explosive.

Show Cause Due to the Nature of the Defendant

Other examples of show cause applications include where a person is a participant in a declared criminal organisation. Section 16 (3A) requires that a defendant that is or has been at any time a participant in a criminal organisation be refused bail unless the defendant is able to show cause as to why custody in unjustified. If bail is granted to a defendant who falls under the scope of 16 (3A), the defendant is required to surrender their current passport, and will be held in custody until it is surrendered. It is not relevant for the purposes of 16 (3A) what offence the defendant is charged with (be it indictable, summary or regulatory), nor whether the defendant was a participant in the organisation at the time of the alleged offence or even if there is a link between the offence and the alleged participation in a criminal organisation.

Considerations

Upon receiving an application for bail, the court is capable of making investigations on oath that concern the defendant, but may not cause the defendant to be examined or cross-examined in regards to the offence. The court will often take into account various factors in regards to the defendant, some of which relate to prior criminal convictions, other which relate to the standing of the defendant in society.

Considerations the court is likely to take into account include:

Any prior criminal record by the defendant, with particular relevance to offences regarding the breaching of bail, or interfering with a witness;
The charge;
The reliability of the defendant;
Whether the defendant has a job and a stable place of residence;
Whether it is likely that the defendant will break the law whilst on bail;
Whether the defendant is likely to endanger the safety or welfare of the public.

Conditions and Varying Your Bail

If a person is granted bail, the court may place conditions on the grant of bail. These conditions must be adhered to if the defendant wishes to retain the grant of bail. Conditions can be changed by the police if the bail undertaking states that the police may vary your bail, otherwise a defendant is required to apply to the court to vary their bail.

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