If you have been charged with a criminal offence in Queensland, the police in most cases will issue you a notice to appear to start proceedings. Depending on the seriousness of the charges and your prior criminal history, you may be arrested and held in police custody. A police officer will decide whether they will formally oppose your bail or release you, either on your own undertaking or with conditions attached to the bail undertaking.
What happens if the police officer opposes my bail?
If the police officer decides to formally oppose your bail, it will be a decision for the Magistrates as to whether you are granted bail. The arresting officer will prepare an Objection to Bail Affidavit setting out why they oppose your bail. The grounds upon which they can oppose bail, and the relevant provisions for the court when deciding whether to grant bail are contained in the Bail Act 1980 (Qld).
There are certain situations that put an accused in a show cause position for bail, which means the court shall refuse to grant bail unless the accused shows cause why their detention in custody is not justified. They include:
- Domestic violence offences where violence is used, or threatened to be used, or there is property damage
- Offences of violence where it is alleged a weapon was used or threatened to be used
- The offence of Choking, Strangulation, Suffocation in a domestic setting.
- An indictable offence alleged to be committed while on bail for an indictable offence
- An offence against the Bail Act (eg – Breach Bail condition or Fail to Appear)
If you are not in a show cause position, the starting point is that there is a presumption in favour of a grant of bail. The court must grant bail unless they are satisfied you should remain in custody for your own protection, or that there is an unacceptable risk you will:
- fail to appear in court as required
- commit a further offence while subject to bail
- interfere with witnesses or obstruct the course of justice while subject to bail
- endanger the safety and welfare of a victim of the offence/s or anyone else’s safety or welfare
In a bail application, the prosecution will rely upon the Bail Objection Affidavit prepared by the arresting officer and your criminal history (if any). For a bail application that history will include details of any pending charges for which you have not been convicted and any offences you were charged with as a juvenile, even where they were dealt with through police diversion such as a caution and where no conviction was recorded as a juvenile. The objection to bail affidavit will set out the allegations of the offence/s before the court and any details about prior offending or information relevant to the risks outlined above. For a bail application, the Magistrate is not deciding whether you are guilty or not of the offences and they will take the prosecution case at its highest when considering the strength of the evidence against you.
Your lawyer will make submissions in response to the allegations in the objection to bail affidavit. They will also make submissions about the strength of the prosecution case against you, your personal circumstances that are relevant to demonstrate you are of otherwise of good character, are not a flight risk and are not a risk to yourself or any other person. Your Lawyer will also make submissions about conditions that might be imposed upon your bail undertaking to reduce any concern the Court has about a risk you pose to an acceptable risk.
What happens if I am granted bail?
If you are granted bail, you will be required to sign your bail undertaking prior to leaving police custody. If you breach any of your bail conditions, you will be charged with an offence of Breach Bail and may be held in custody for that offence. If you are in custody for breaching your bail conditions, the prosecution can make application to revoke your bail undertaking.
If you fail to appear in court as required in accordance with the undertaking, a warrant for your arrest will issue. You will be charged with an offence of Fail to Appear which carries a maximum penalty of two years imprisonment. It will be difficult for you to persuade a court to again release you on bail if you have not been compliant with your bail undertaking.
What happens if my bail is refused?
Your bail application will be refused if the Court finds that there is an unacceptable risk of any one or more of the factors set out above, or on the basis that you have not shown cause that your detention in custody is not justified. The most common reasons the court will refuse to grant bail is due to an unacceptable risk of failing to appear or committing a further offence. If your bail has been refused you will be transported to a correctional centre until your charges are finalised in court.
You do have the option to apply to the Supreme Court if you are refused bail in the Magistrates Court. The Supreme Court is bound by the same legislation as the Magistrates Court when determining bail. They will require each party to submit affidavit material and a written outline of submissions. Otherwise, you are required to demonstrate a change in circumstances before another application for bail can be made in the Magistrates Court.
This post contains general advice only and is not intended as legal advice.