Last updated 27 August 2019
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 including at the conclusion of the committal if the accused is committed for trial, during trial and at the conclusion of the trial, pending sentence (ss 8,10 Bail Act). Court bail is the usual form of bail in Queensland, where the accused enters into an undertaking (s 6 Bail Act), which is effectively a contract or promise to appear in court at a later date with or without conditions imposed (ss 11, 20 Bail Act).
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 or indefinite sentences (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.
According to s 16(2)(f), if a defendant is charged with a domestic violence offence or contravenes a domestic violence order, the risk of further domestic violence or associated offences under the Domestic and Family Violence Protection Act 2012 (Qld) is ‘a relevant matter’. The court may also consider any sympathies the defendant holds for terrorism and any association the defendant has with a terrorist organisation or another person who has promoted terrorism. A person has promoted terrorism if the person has carried out an activity to support the carrying out of a terrorist act, made a statement in support of carrying out a terrorist act or has advocated for the carrying out of a terrorist act. A terrorist act can include terrorist acts that have not happened and is not limited to a specific terrorist act.
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 against s 161ZI of the Penalties and Sentences Act 1992 (Qld) or s 32 of the Peace and Good Behaviour Act 1982 (Qld)
- an offence against s 359 of the Criminal Code with a circumstance of aggravation
- a relevant offence, which is defined as an offence of:
- choking, suffocation or strangulation of another person with whom the offender is in a domestic relationship without that person’s consent
- domestic violence with a maximum penalty of at least seven years imprisonment
- threatening violence with the intention to intimidate or annoy, by words or conduct, to enter a house or other premises. It also includes threatening to discharge a loaded gun or any other act that is likely to cause any nearby person to fear bodily harm or damage to property where these offences are also domestic violence offences
- dangerous operation of a vehicle whereby a person operates or interferes in the operation of a vehicle in a way that is dangerous and the offence is also a domestic violence offence
- deprivation of liberty whereby a person unlawfully confines or detains another person against their will if the offence is also a domestic violence offence
- stalking whereby person unlawfully stalks another if the stalking occurs as a domestic violence offence
- unlawfully harming an animal whereby a person wilfully or unlawfully kills or otherwise injures any animal that is capable of being stolen and the offence is a domestic violence offence
- contravening a domestic violence order if that offence involved the use, threatened use or attempted use of unlawful violence to a person or property, or where the defendant was convicted of that offence within five years of the order, or the defendant was convicted of another offence against the Domestic and Family Violence Protection Act 2012 (Qld)
- a terrorism offence or is subject to a control order. A terrorism offence includes planning, financing or committing a terrorist act, providing or receiving training connected with terrorist acts, or possessing things or documents connected to a terrorist act.
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.