What is Bail?
Bail is a written undertaking that you sign, promising to appear at Court on the date written on that undertaking. Sometimes you must make additional promises, known as bail conditions. Common examples include a reporting condition (where you must sign in at a police station on certain days of the week) and a residential condition (where you must reside at a stated address and cannot move without prior permission of the Court or Police).
It is also important that you understand it is a condition of all bail undertakings that you do not commit any further offences (that attract jail time) while on bail.
The law that governs Bail in Queensland, is the Bail Act Queensland.
Types of Bail
Watchouse Bail
If you are arrested and charged with an offence, the Police may grant you watchouse bail. Once you sign the bail undertaking the Police will release you. You must then attend Court on the date stated on the bail undertaking and comply with any further conditions of your release. You are entitled to remain in the community until the date of the Court appearance, at which time you may apply to have your bail enlarged or varied.
Court Bail
If the Police refuse to grant you watchouse bail, you may apply to the Court to grant you bail. If you are granted Court bail while you are still in the custody of the Police, the Police must release you once you sign the bail undertaking. Note; it can be a couple of hours before you are released.
If you are issued with a Notice to Appear or a Complaint and Summons requiring you to appear at Court and you have your matter adjourned to be heard on another day, the Court will often order that you sign a bail undertaking requiring you to appear at the next Court day. If this occurs, you cannot leave the Court house until you sign that bail undertaking, to do so is an offence and may result in a warrant being issued for your arrest. You may have to wait a short time outside a designated sign-out room until your name is called, while your undertaking is prepared
Bail Enlargements
It is not uncommon for there to be more than one Court date when a person is charged with an offence, even where the offence is minor. If your matter is adjourned to another Court date for any reason, you may request the Court to enlarge your bail to that date and time. This will entitle you to remain in the community while your matter is progressing through the Court system.
You will not need to sign a new bail undertaking if your bail (that was previously granted) is merely enlarged and not altered in any way. You will be subject to the same conditions as the original bail undertaking you signed until the next Court date, at which time your bail may be enlarged again.
What will the Court look at in Deciding whether to Grant me Bail?
Pursuant to section 16 of the Bail Act Queensland, you will only be granted bail if the Court does not feel custody is required for your own safety and if you are NOT considered an unacceptable risk of:
- failing to appear and surrender into custody; OR
- while released on bail:
- (a) committing an offence; or
- (b) endangering 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
- (c) interfering with witnesses or otherwise obstructing the course of justice, whether for the defendant or anyone else; or
The Court will look at a number of circumstances in deciding whether to grant bail, including:
- the type and seriousness of the offence you have been charged with.
- the strength of evidence against you.
- whether you have a place to live.
- whether you have a job.
- whether you have a criminal record.
- whether you have children.
- whether you have failed to turn up for other Court dates in the past.
- whether you are capable of fleeing and whether you are likely to flee.
- whether you have someone to provide a surety (a sum of money to the Court, which will be forfeited if you breach bail).
- whether the Court believes you are a danger to other people.
- whether the Court believes you will break the law again.
- whether the imposition of various conditions will be enough to ensure you do not flee, present a danger to others or commit further offences.
- whether you are capable of complying with any conditions imposed.
- whether you are in a ‘show cause position’.
If you are not in a ‘show cause position’ the burden is on the Police to give the Court a reason not to grant you bail.
Breach of Bail
It is important that you read your bail undertaking carefully and understand the conditions that you must comply with, as failure to comply is an offence under section 29 of the Bail Act Queensland and may result in your bail being revoked. Further, breach of your bail will likely result in a warrant being issued for your arrest.
It is also important to keep a copy of your bail undertaking, however if you do misplace it you can go to the Court house and get another copy.
If you fail to turn up on the Court date stated in your bail undertaking or do not comply with one of the conditions (even just once) you should seek legal advice immediately. Even if you have a reasonable excuse (for example you have a medical certificate), you will still have to appear before the Court and explain this.
It is in your interest to attend to your police station yourself, rather then have the Police come find you and arrest you. However, you should speak with a lawyer and get some advice prior to handing yourself in, so that you know your rights.
If you hand yourself in or are arrested after breaching your bail, you will be held in the watchouse and taken to Court on the next Court day. When you are taken to Court, you will have the opportunity to provide an explanation for the breach. If the explanation is reasonable the Court may excuse the breach and re-grant bail.
If the Court does not accept your explanation as reasonable, you will be sentenced for the breach. Section 29 of the Bail Act Queensland states that the maximum penalty is 40 penalty units ($100 = 1 penalty unit) or 2 years imprisonment. If you are not a repeat offender, you will like get a fine and it is possible you will have no conviction recorded. After you are sentenced you may apply for bail again.
Certain types of breaches of bail, will place an individual in a ‘show cause position’, making it more difficult to get bail again.
Breach of Bail – What is a Show Cause Position?
It is important that you are aware, that a breach of your bail may place you in a ‘show cause position’ when you next apply for bail.
This means that the ‘burden of proof’ will be on you rather than the Police, thus making it more difficult for you to get bail. Having the ‘burden of proof’ on you, means that it will be up to you to show the Court why your detention is not justified and that you should be granted bail pursuant to section 16 of the Bail Act Queensland.
Section 16(3) of the Bail Act Queensland, states that an individual will be in a ‘show cause position’ if they have breached their bail by way of:
- (a) a failure to appear at Court;
- (b) being charge with an indictable offence which is alleged to have occurred after you were granted bail for another offence;
- (c) being charged for an indictable offence involving weapons or a threat of violence committed whether the offence alleged to have occurred before or after bail was granted; OR
- (d) being charged with an offence that has a maximum penalty of life or indefinite imprisonment, whether the offence is alleged to have occurred before or after bail was granted.
Can I Change the Conditions of my Bail?
Yes. There are two possible ways to vary the conditions of your bail. Either by application to the Court under section 30 of the Bail Act Queensland or by application to the Police.
You may only apply to the Police to have a condition of your bail varied if your bail undertaking states that the Police may make variations to your bail. This is common where you have been imposed with a residential condition requiring you to reside at a specified address, to enable you to apply to the Police if you intend to move rather then having to wait until your next Court date.
If you bail undertaking does not state that Police may make variations, then you must apply to the Court to have your bail varied. Common variations include changing the police station that you must report at, the days you must report, the number of days that you must report, and to change your residential address.
Note that the Court will usually not consider a reduction in the number of days you are required to report until your matter progresses past the committal stage. However, they may vary the time and days of the week you are required to report to fit in with other commitments, such as work.
Criminal Law Article written by Bill Potts (Queensland criminal defence lawyer who is experienced in Bail matters).
If you have any questions about the conditions of bail or about an impending court appearance, get the right advice from an experienced lawyer. Contact us on (07) 5532 3133 for qualified advice today.