By Michael Kelly, Director FMLAW

Bail is a written undertaking that you sign, promising to appear in court on the date written on that undertaking.

Sometimes you must make additional promises, known as bail conditions. Common examples include a reporting condition (where you must sign in at a police station on certain days of the week) and a residential condition (where you must reside at a stated address and cannot move without prior permission of the court or police).

Importantly, it is a condition of bail that you do not commit any further offences (that attract jail time) while on bail.

If you are arrested and charged with an offence, the police may grant you watch house bail, where you are allowed to remain at liberty within the community, provided you sign a bail undertaking agreeing to appear before the court at a specific day and time.

Alternatively, the police may give you a notice to appear in court on a particular date. In those circumstances, the court will determine your bail when you appear.

Once you sign the bail undertaking, the police will release you. You must then attend court on the date stated on the bail undertaking and comply with any further conditions of your release. 

If you are issued with a Notice to Appear requiring you to appear in court and you have your matter adjourned to be heard on another day, the court will often order that you sign a bail undertaking requiring you to appear at the next court day. If this occurs, you cannot leave the courthouse until you sign that bail undertaking. To do so is an offence and may result in a warrant being issued for your arrest. 

If the police do not grant you bail, then the court determines whether to grant you bail. You should engage experienced representation if you are required to make an application for bail to the court.

Pursuant to section 16 of the Bail Act Queensland, you will only be granted bail if the Court does not feel custody is required for your own safety, and if you are not considered an unacceptable risk of:

1.      Failing to appear and surrender into custody; or

2.      While released on bail: 

o   (a) committing an offence; or

o   (b) endangering the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or

o   (c) interfering with witnesses or otherwise obstructing the course of justice, whether for the defendant or anyone else.

The Court will look at several circumstances in deciding whether to grant bail, including:

• The type and seriousness of the offence you have been charged with.
• The strength of evidence against you.
• Whether you have a place to live.
• Whether you have a job.
• Whether you have a criminal record.
• Whether you have children.
• Whether you have failed to turn up for other court dates in the past.
•  Whether you are capable of fleeing and are likely to flee.
•  Whether you have someone to provide a surety (a sum of money to the court, which will be forfeited if you breach bail).
• Whether the court believes you are a danger to other people.
• Whether the court believes you will break the law again.
• Whether the imposition of various conditions will be enough to ensure you do not flee, present a danger to others, or commit further offences.
• Whether you are capable of complying with any conditions imposed.
• Whether you are in a ‘show cause position’.

If you are not in a ‘show cause position’ the burden is on the police to give the court a reason not to grant you bail.