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WHY BAIL MAY BE REFUSED

Why Bail May Be Refused

Written by Criminal Lawyers Brisbane Group

3 March 2022

If you are arrested for a criminal offence in Queensland, you will be taken into police custody. From then on, you will either be granted bail or remanded in custody. The time you spend in custody can vary greatly, from an hour or two, to until the time of your sentence hearing or trial. Because we have the presumption of innocence in Queensland, the law allows persons charged with criminal offences to be granted bail (meaning they are not withheld in custody). However, some persons are never granted bail if they do not meet specific requirements.

 

WHAT IS BAIL?

Bail, in the simplest form is a signed promise to turn up to Court when you are required to.  Sometimes the Court or police may attach conditions to a person’s bail undertaking. These include:

  • Residential condition- the address where you must reside while you are on bail.
  • Reporting condition- the police station where you must report to and when while you are on bail.
  • Electronic monitoring device- you may be required to wear an ankle bracelet which monitors your movements while on bail.
  • Curfew- you may not be allowed to be away from your home during specific times of the day/night while on bail.
  • No-contact- you may be prevented from contacting a person (e.g. a co-offender, a complainant or a witness in the matter) while on bail.
  • Not leaving the State of Queensland- you may be prevented from leaving Queensland.
  • Passport surrender- you may need to surrender your passport and agree not to apply for a new one while on bail.
  • Alcohol- you may be prevented from consuming alcohol while on bail.  You may also be subject to random breath testing. This condition may require you to go to Queensland Health’s Alcohol, Tobacco and Other Drugs Service (ATODS).
  • Drugs- you may be subjected to random drug testing or being required to attend Queensland Health’s Alcohol, Tobacco and Other Drugs Service (ATODS).
  • Rehabilitation- you may be required to attend a rehabilitation clinic/centre while on bail.
  • Not to approach an airport- you may be prevented from approaching an airport.

 

WHEN WILL YOU BE GRANTED BAIL?

When you are charged with a criminal offence and are in police custody, the police can give you bail. Police can give you bail if it is not practicable for them to get you promptly before a court. However, if you are charged with an offence of murder, police cannot grant you bail. Bail for murder can only be granted by the Supreme Court of Queensland. The police may also decide not to grant you bail if the offence is serious and they believe you should be kept in custody.

 

When you are first arrested by police, the Magistrates Court or the Supreme Court can grant you bail. If your charge is in the Magistrates Court, a Magistrate can grant you bail, vary your bail, or revoke your bail. If you are in custody, a Magistrate may not grant you bail unless you or your criminal lawyer apply for bail. If there are no unacceptable risks, you should be granted bail.

 

If the Magistrate refuses to grant you bail, then you need to apply for bail in the Supreme Court. A Judge of the Supreme Court will decide if you will be granted bail. If your charge is already in the District Court, you can apply for bail in the District Court.

 

WHY MAY BAIL BE REFUSED?

There is a general presumption persons are granted bail. This is unless there is an unacceptable risk of the person:

  • Failing to appear.
  • Committing an offence.
  • Endangering the safety or welfare of a person.
  • Interfering with witnesses.
  • Obstructing the course of justice.

 

Bail may also be refused if the defendant should remain in custody for their own  protection.

 

When deciding if any of above-mentioned things apply, the Court will look at:

  • If you have a criminal history.
  • If you have any entries on your criminal history for similar offences
  • The nature and seriousness of the offence you are charged with.
  • Your character, antecedents, associations, home environment, employment and background.
  • If you have breached bail in the past or failed to appear.
  • The strength of the prosecution case.
  • if you are charged with a domestic violence offence or an offence against the Domestic and Family Violence Protection Act 2012, section 177(2)—the risk of you committing further domestic violence or associated domestic violence.
  • any promotion by you of terrorism.
  • any association you have, or had with a terrorist organisation within the meaning of the Criminal Code (Cwlth), section 102.1(1) or a person who has promoted terrorism.

     

    In some situations, a defendant will find themselves in a “show cause” position. If you are in a show cause position, this means you must show cause why your detention in custody is not justified. Examples of offences where you would be in a show cause position are:

    • an indictable offence during which it is alleged you used or threatened to use a firearm, offensive weapon or explosive substance.
    • an indictable offence alleged to have been committed while you were at large with or without bail between the date of your apprehension and the date of your committal for trial or while awaiting trial for another indictable offence.
    • Murder.
    • an offence against the Bail Act. 
    • An offence of breaching a Control Order. 
    • An offence of contravening a public safety order.
    • An offence of threats under Section 359 of the Criminal Code where the threat is made to a law enforcement officer, or a person helping a law enforcement officer, when or because the officer is investigating the activities of a criminal organisation.

     

    WHAT HAPPENS IF YOU BREACH BAIL?

    If you breach a condition of your bail, you may be charged with an offence of breach of bail under section 29 of the Bail Act. The maximum penalty for this offence is 40 penalty units or 2 years imprisonment.

     

    If you breach your bail by failing to appear in Court, then the Court will likely issue a warrant for your arrest. In such circumstances the police will either arrest you and bring you to court, or you will need to surrender at the Court. When either of these things happen, the issue of you being granted bail again may be raised. You could find yourself in a position where the Magistrate decides not to grant you bail.

     

    WHAT ARE THE OPTIONS AFTER BAIL REFUSED?

     

    If the Magistrates Court refuses to grant you bail, then you can apply to the Supreme Court for bail. The Supreme Court will consider your application for bail afresh. You may be able to make a second application for bail in the Magistrates Court. To do this you would need to show a material change in your circumstances since your first application for bail. For example, a Magistrate may have refused you bail because you didn’t have anywhere to live. At your second bail application if you arranged somewhere to live, then this would be a material change.

     

    THE NEED FOR EXCELLENT LEGAL REPRESENTATION

    If you or someone you know needs to get bail, you need the experience of the Criminal Lawyers Brisbane Group. Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free no-obligation chat. Contacting us may be the best thing you do.

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