Last updated 28 August 2019
When deciding whether to grant bail, a police officer or the court will consider whether there is an unacceptable risk (s 16 Bail Act 1980 (Qld) (Bail Act)) that the defendant would:
- fail to appear and surrender into custody
- commit another offence
- endanger the safety or welfare of the alleged victim or any members of the public
- interfere with witnesses or otherwise obstruct the course of justice
- themselves be safer if remaining in custody (s 16(1)(b) Bail Act).
In considering the question of whether there is an unacceptable risk with respect to any of the above matters, regard is had to all matters appearing to be relevant (s 16(2) Bail Act). These include:
- the nature and seriousness of the offence
- the character, antecedents, associations, home environment, employment and background of the defendant
- previous bail history (if any) of the defendant
- the strength of the evidence against the defendant
- if the defendant is an Aboriginal or Torres Strait Islander person, any submissions made by a representative of a community justice group in the defendant’s community.
A defendant seeking release should set out in their affidavit any evidence that addresses these concerns. Evidence that the defendant has a job or a good employment record, has a permanent place to live and/or owns a house, has lived in the area for a long time, is married and has dependants, is undertaking studies or has convincing character referees will show the court that the defendant would be unlikely to abscond if released on bail. Other relevant factors in support of a grant of bail include a lack of opposition by the prosecutor and any risk to the physical or mental health of the accused if they were to be remanded in custody.
While the courts will allow hearsay evidence, it is better to have direct affidavit material from the people who can give the relevant evidence. It is also permissible to obtain letters in support (e.g. from the person the defendant proposes to live with, from any person willing to act as surety expressing that willingness, from a potential employer or from a doctor attesting to a medical condition) and attach those letters as exhibits to the affidavit.