Last updated 21 December 2016
If a defendant fails to appear before the court in accordance with their undertaking or otherwise does not comply with their bail conditions, then bail can be revoked and the defendant may also be charged with a breach of bail.
A breach of any of the conditions of a bail undertaking will result in a warrant being issued for the defendant’s arrest. A breach of a bail condition may also lead to a conviction for a breach of bail (s 29 Bail Act 1980 (Qld) (Bail Act)). Defendants should be aware that a conviction for a breach of bail will work against them in being granted bail for any future offences. Judges or police authorised to grant bail would be much more reluctant to do so when defendants have previously shown they are not able to comply with bail conditions, particularly in circumstances where defendants have failed to appear before the court in accordance with a bail undertaking.
It is important for defendants to note that most bail undertakings usually include a condition not to commit further offences. Any offence, no matter how minor, can constitute a breach of bail. If a defendant commits an offence and thereby breaches the condition not to commit further offences, they are then liable to be charged with two offences:
- the offence that constitutes the breach of the bail undertaking
- the offence of breach of bail.
The most serious breach of a bail undertaking is the failure to appear before the court at the appointed time. Police have the power to arrest without warrant any defendant who has left the court precincts without entering into a required undertaking or fulfilling a necessary condition, who has failed to appear or broken any condition of bail, or who the police believe, on reasonable grounds, is likely to break the conditions for appearance or any other condition of the bail undertaking (s 367 Police Powers and Responsibilities Act 2000 (Qld)). Provision also exists under the Bail Act for a court to issue a warrant for arrest for those matters (ss 27A, 28, 28A).
Where a defendant on bail fails to appear before the court in accordance with the undertaking, the court may declare the undertaking to be forfeited (s 31 Bail Act). Where the undertaking contains the deposit of money or other security as a condition of bail, that deposit or other security may also be forfeited (s 32 Bail Act).
Defendants who have failed to appear and who are arrested or surrender themselves into custody are taken before a Magistrates Court and called upon to present a reasonable excuse (show cause) for their non-appearance. If they offer no excuse, they are then sentenced for the offence of failure to appear in accordance with their undertaking (s 33 Bail Act). If the defendant advises the magistrate that they have an excuse, they will be remanded, either in custody or on bail, to the court that issued the warrant. The maximum penalty for the offence of failure to appear is a $4400 fine or two years imprisonment (s 29 Bail Act). If a court imposes a custodial sentence, the sentence is cumulative to any other custodial sentence that may be imposed on the defendant (s 33 Bail Act).