When to apply for bail

How bail is decided

Bail is a court order releasing a person from custody while charges are pending.

The Bail Act 1980 (Qld) requires a court to refuse bail where it is satisfied there is an unacceptable risk that the person would:

• fail to appear and surrender into custody;
• while released, commit an offence;
• endanger the safety or welfare of a person; or
• interfere with witnesses or otherwise obstruct the course of justice.

The court weighs the nature and seriousness of the offence, the strength of the evidence, the person’s criminal history, their history of compliance with bail, and their personal circumstances including ties to the community.

The point that is often missed is that risk is assessed against the conditions proposed. A risk that is unacceptable on unconditional bail may be perfectly acceptable with a residential address, a surety, reporting conditions, a curfew or electronic monitoring.

Show cause offences

For a defined category of offences, the Act reverses the usual position. Instead of the prosecution establishing why you should be held, you must show cause why your detention is not justified.

That category includes offences alleged to have been committed while on bail, certain offences involving weapons, serious drug offences including trafficking, and domestic violence offences.

It does not mean bail is unavailable. It means the material has to be substantially better, and it has to be ready.

Why timing matters more than speed

If watch house bail is refused, the instinct is to apply immediately. Sometimes that is right. Often it is not.

A further application for bail in the same court generally requires fresh evidence or a material change in circumstances since the last refusal. A weak first application does not simply fail. It consumes your best opportunity and raises the bar for the next one.

So the question is what is missing, and how long it takes to get it.

• Accommodation. A confirmed address away from any complainant, with the occupier’s agreement in writing.
• A surety. Someone prepared to pledge money, with evidence they have it.
• Employment. A letter from an employer holding a position open is worth a great deal.
• Treatment. A confirmed place in a rehabilitation program answers several risks at once, and takes time to arrange.
• The prosecution material. The strength of the case is a relevant factor, and you cannot argue it before you have seen the brief.

Two weeks spent assembling that is usually a better investment than an application on day three that fails.

Where to apply

A first application is ordinarily made in the Magistrates Court.

If bail is refused there, an application can be made to the Supreme Court. That is a fresh application rather than an appeal, and the Supreme Court considers the matter afresh.

For some offences, the Magistrates Court has no power to grant bail at all and the application must go to the Supreme Court in the first instance.

See our page on bail applications and our guide to bail conditions, sureties and breaches.

The cost of remand

If bail is refused you remain in custody until the matter is determined, which in the District or Supreme Court can be a year or more.

The consequences run past the inconvenience. People lose employment, housing and contact with their children. Preparing a defence from custody is materially harder, and access to your lawyer is limited to scheduled visits and calls.

Time served on remand is ordinarily declared and counted towards any sentence eventually imposed, which is important but is not much comfort if you are ultimately acquitted.

That asymmetry is the reason to take the bail application seriously and prepare it properly, rather than treating it as a formality on the first mention date.

If bail is granted

Conditions are part of the order and each one is enforceable. Common conditions include reporting to a police station, residing at a stated address, a curfew, surrendering a passport, and not contacting witnesses or complainants.

Failing to comply can result in bail being revoked, a fresh charge of breaching bail, and a significantly harder path to release next time.

If a condition is unworkable, apply to vary it. Do not simply stop complying.