Bail applications in Queensland

The four unacceptable risks

Section 16(1) requires bail to be refused where the court is satisfied there is an unacceptable risk that you would:

1. Fail to appear and surrender into custody.
2. While released, commit an offence.
3. Endanger the safety or welfare of a victim or any other person.
4. Interfere with witnesses or otherwise obstruct the course of justice.

Bail can also be refused if you should be kept in custody for your own protection. Section 16(2) lists what the court weighs: the nature and seriousness of the charge, your character, antecedents, associations, home environment, employment and background, your history on previous grants of bail, and the strength of the evidence. For domestic violence offences the court must specifically consider the risk of further violence.

Note that the test is unacceptable risk, not any risk. Almost every defendant presents some risk. The argument is that conditions bring it below the line.

Show cause offences

For the offences in section 16(3) the onus flips. You must show cause why your detention in custody is not justified. The main categories are:

• An indictable offence alleged to have been committed while you were at large on bail or awaiting trial for another indictable offence.
• An indictable offence involving the use or threatened use of a firearm, offensive weapon or explosive.
• An offence against the Bail Act itself, including failing to appear under section 33.
• Contravening a control order or public safety order made in relation to a criminal organisation.
• A relevant domestic violence offence, including strangulation under section 315A, a domestic violence offence carrying more than 7 years, and certain contraventions of a domestic violence order.

Murder and repeat serious child sex offences are different again. Under section 13, only a Supreme Court judge can grant bail for those charges.

What a properly prepared application contains

A bail application succeeds on material, not advocacy. Before the application is made, assemble:

• An address. A confirmed, verifiable place to live, with a letter from the occupant confirming you can live there and that they know what the charges are.
• A surety. A person prepared to deposit or pledge money, with evidence they have it. A surety with real assets carries far more weight than a large number on paper.
• Employment. A letter from an employer holding a job open is one of the strongest pieces of material available.
• Treatment. Where the offending is drug driven, a confirmed rehabilitation bed or an accepted referral changes the risk profile immediately.
• A realistic condition set. Reporting to a police station, a curfew, a no contact condition, surrender of a passport, and where necessary a tracking device. Proposing conditions yourself is better than having them imposed.

A further application to the same court usually requires a material change in circumstances, so an application made unprepared on the first mention date can lock you out.

Watch house, Magistrates Court and Supreme Court bail

Police can grant bail at the watch house. If they refuse, you must be brought before a court as soon as practicable. A Magistrates Court can grant bail for most charges, and the application is usually heard on the first or second appearance.

If a magistrate refuses bail, you can apply to the Supreme Court under section 10. That is a fresh application, not an appeal, and it is heard on affidavit material. It is also where a Supreme Court bail application makes the difference in show cause matters, because the material can be prepared properly rather than assembled at the bar table in a crowded list.

If bail is granted and you then breach a condition, police can arrest you and the court can revoke bail under section 30. Failing to appear is a separate offence under section 33 and is itself a show cause offence next time round.