Last updated 29 August 2016
When a person is arrested for an offence, they should be taken to a court as soon as possible. If that is not practicable, the defendant is taken to and held at the police watch-house. Section 7 of the Bail Act 1980 (Qld) (Bail Act) gives particular police officers power to grant bail in certain circumstances. The police officer in charge or the watch-house manager at that particular time are authorised to grant bail. The prescribed police officer has a duty to investigate whether bail should be granted (s 7 Bail Act, s 394 Police Powers and Responsibilities Act 2000 (Qld) (PPR Act)), and that decision is subject to the provisions of ch 15 pt 2 of the PPR Act, which permit detention for the purposes of questioning and investigating matters. Police bail cannot be granted to persons charged with the most serious offences (e.g. murder). Only the Supreme Court can grant bail for these offences (s 13 Bail Act). Alternatively to a grant of bail, the prescribed police officer may issue a notice to appear (s 7 Bail Act). In other particular cases, a person may be released without bail on certain conditions (e.g. where the person is charged with being drunk in a public place (s 378 PPR Act) and in the case of minor drug offences (s 379 PPR Act).
In most cases, police will be able to take a defendant before a Magistrates Court within 24 hours of arrest. In these circumstances, it is up to the prescribed police officer whether or not bail is granted.
There is no right to bail. However, if it is not practicable to bring a defendant before a Magistrates Court within 24 hours of arrest, the presumption is that bail will be granted (s 7 Bail Act). Nevertheless, bail may be refused if the prescribed police officer is satisfied that there is an unacceptable risk in granting bail (e.g. that the defendant will not appear in court). The prescribed police officer refusing to grant bail in these circumstances is required to note the reasons for the refusal of bail on the papers relating to the defendant (i.e. the charge sheet or warrant). However, the failure to note these reasons for refusal does not, in itself, render the custody unlawful.
In most cases, a person released from police custody after being granted bail will be required to sign a bail undertaking (Form 7). The defendant will also receive a notice in the prescribed form (Form 8) (both forms are available from the Queensland Courts website) setting out their obligations and the consequences of failing to comply with those conditions.
The bail undertaking will include:
- a promise by the defendant to appear at a particular court at a specified time
- the conditions of bail regarding the defendant’s conduct while on bail, for example obligations to report to a police station regularly, not to contact the person making the allegations (the complainant) and to live at a particular address
- an acknowledgement that if the defendant fails to appear or to observe any condition imposed, then a certain sum of money will be payable to the Crown, and that the person will have committed an offence and be liable to imprisonment for a period of up to two years.
Dealing with police
In dealing with the police at the watch-house or police station, defendants should remember certain things:
- All conversations with police at any stage will be treated as being on the record and can be used against the defendant.
- Bail will not be granted unless a defendant gives the police their correct name and address, and the name of a person who can verify these details. Defendants should not give any other information nor make any comment about the alleged offence to the police.
- Care should be taken in discussing the circumstances leading to the charge with anybody else (including other civilians). Sometimes undercover police are put into the holding cell with tape recorders in the hope that defendants might make admissions. Other prisoners sometimes give evidence in the hope that their own charges might be dropped or their sentences reduced.
- If defendants have been injured, threatened, badly treated by police or are in need of medication, they should make a formal complaint and ask to be examined by a Government Medical Officer. If a police officer is not being cooperative, defendants should politely ask to speak to the senior officer.
- It is important to stay calm and remain polite.
- If it has not been possible for the defendant to make contact with a lawyer, they should call a trustworthy person to let them know where they are and ask for a lawyer.