Last updated 29 August 2016
The power of a court to grant bail is set out in s 8 of the Bail Act 1980 (Qld) (Bail Act). Courts of all jurisdictions have power to grant bail in particular circumstances. Section 10 of the Bail Act gives the Supreme Court power to grant bail at any stage to any person in respect of any offence.
The Magistrates Court
Magistrates have the power to grant bail for most offences (s 8 Bail Act). Magistrates also have the power to enlarge (continue on the same conditions), vary or revoke bail that has already been granted. These latter powers may be exercised in relation to bail granted by the police or bail granted by other magistrates.
The starting point is that bail shall be granted or enlarged by magistrates (s 9 Bail Act). This presumption in favour of granting bail is subject to other sections of the Bail Act, particularly the exceptions set out in ss 13, 16(1) and 16(3).
Section 13 of the Bail Act provides that only the Supreme Court may grant bail to persons charged with offences under the Criminal Code Act 1899 (Qld) (Criminal Code) that carry sentences on conviction of imprisonment for life (i.e. murder), which cannot be mitigated or varied under the Criminal Code or any other law. This also applies to indefinite sentences for violent offences under pt 10 of the Penalties and Sentences Act 1992 (Qld).
Section 16(1) of the Bail Act provides that bail should be refused if the court (or the prescribed police officer) is satisfied that there is an unacceptable risk that the defendant, if released on bail, would fail to appear and surrender into custody, or would commit an offence, endanger the safety or welfare of members of the public or interfere with witnesses. In assessing whether the defendant presents such an unacceptable risk, s 16(2) of the Bail Act states that regard should be given to all relevant matters, including the nature and seriousness of the offence charged, the character, antecedents, associations, home environment, employment and background of the defendant, the history of any previous grants of bail to the defendant or the strength of the evidence against the defendant. Bail may also be refused under s 16(1) of the Bail Act if the court (or prescribed police officer) is satisfied that the defendant should remain in custody for their own protection.
Section 16(3) of the Bail Act specifies offences for which the court (or prescribed police officer) should refuse bail, unless the defendant shows cause (i.e. gives good reasons) why their detention in custody is not justified. The offences specified in s 16(3) are those where the defendant is charged with:
- an indictable offence that was committed while the defendant was out on bail, or when the defendant had already been charged and was awaiting committal for or trial of an earlier indictable offence
- an offence referred to in s 13 of the Bail Act
- an indictable offence where the defendant is alleged to have used, or threatened to use a firearm, offensive weapon or explosive substance
- an offence against the Bail Act
- an offence under ss 24 or 38 of the Criminal Organisation Act 2009 (Qld)
- an offence against s 359 of the Criminal Code with a circumstance of aggravation.
If bail is granted for these offences, then the reasons for granting it must be stated. Reasons sufficient to show why bail should be granted are hard to define and will depend on the circumstances of each particular case. Some relevant reasons might be:
- jeopardy to the physical or mental health of the defendant
- specific responsibilities such as children and employment difficulties
- that the prosecution does not oppose the grant of bail
- the age of the defendant.
In seeking bail from a magistrate, the following matters should be noted:
- Bail will almost always be granted if it is not opposed by the police prosecutor.
- If the arresting officer has indicated that bail will not be opposed, then care should be taken to ensure that this fact is noted on the relevant papers and drawn to the attention of the prosecutor.
- If bail is being opposed, details should be obtained of the specific concerns of police so that they can be addressed at the bail hearing.
The District Court and the Supreme Court
Section 8(1)(a)(iii) of the Bail Act makes provision for bail to be granted after the defendant is committed (ordered) to stand trial (s 20). When a person has been on bail and is then ordered to stand trial in the District Court or the Supreme Court, or has been committed for sentence, they will need to apply for bail once again. If bail is granted, a fresh undertaking will normally need to be entered into. It may therefore be necessary for any surety to be at court if it is expected that a person will be committed for sentence or ordered to stand trial.
When bail has been granted by a Supreme Court judge under s 10(1) of the Bail Act, it is usually granted until the commencement of the trial. If so, there is no need for another bail application or undertaking after the committal.
When the trial process of a person has commenced in the Supreme Court or the District Court (upon presentation of the indictment), a judge of that court has power to grant, enlarge, vary or revoke the bail of the accused (ss 8(1)(b), 10, 27 Bail Act).
Once the trial commences, the trial judge has the authority to grant bail, vary the conditions attached to the grant of bail or revoke bail. A decision about bail for the duration of the trial made by a trial judge is final and cannot be appealed (s 10(3) Bail Act).
The trial judge is empowered to grant bail overnight and during other adjournments of the trial. In appropriate circumstances, bail is also available up until the return of the verdict.
Bail after verdict and sentence
Bail may be granted after conviction if the person convicted lodges an appeal. A formal application is required.
Since the presumption of innocence no longer applies after conviction, bail pending an appeal is more difficult to obtain and will usually only be granted in exceptional circumstances.
Where an appeal against a magistrate’s decision is made to the District Court (s 222 Justices Act 1886 (Qld)), bail can be granted by the Magistrates Court under s 8(1)(ia) of the Bail Act.
Relevant factors considered by the courts when deciding whether to grant bail pending an appeal include:
- the nature of the offences being appealed against and the sentences imposed
- the prospects of success on the appeal
- the length of the sentence imposed (i.e. if the sentence is short, there is a real risk that a substantial portion of that custodial sentence will have been served by the time the appeal is determined).
Bail after appeal
If an appeal against conviction is successful and even when a new trial has been ordered, the Court of Appeal has power to grant bail immediately.