When you are arrested or charged with a criminal offence, you will likely be taken into custody. The length of your custody can be as short as a couple hours, to as long as the time until your trial or sentencing. Because Queensland has the presumption of innocence, you can be granted what is known as 'bail' to allow you to be released from custody until a verdict is handed down. However, if you do not meet certain requirements, bail will be refused.
What is bail?
Bail is a release from custody on the promise to appear in court when you are required. Certain conditions may be imposed upon you on the undertaking of bail, such as:
• A requirement to report to a police station on certain days
• A prohibition on contacting certain victims, witnesses, or co-offenders
• A Curfew
• A prohibition on drinking or taking drugs
• Attending a rehabilitation program
• Surrendering your passport
• Prevention on leaving the state or country
• Co-operation in a medical examination
• Only being able to live/reside at a certain address
Often, a 'surety' will be a condition of your bail. This means you must deposit money that will be forfeited in the event that you breach your bail. If you have been arrested for a minor, non-indictable offence, a cash bail may be granted. The breach of a cash bail will only result in the forfeiture of the money.
When will you be granted bail?
When you are arrested, it is imperative that you are taken to court as soon as possible. The police officer who arrested you will be authorised to grant bail if a court date cannot be secured within 24 hours. However, if the charge alleged against you is a serious offence (such as murder) or there is an unacceptable risk, you will be refused bail.
Bail may also be granted by either the Magistrates Court, or the Supreme Court. In the Magistrates Court, bail may be granted, revoked, or varied at the Magistrate's discretion. Bail wont usually be granted unless the defendant or their legal representatives make an application for bail. Unless the police prosecutors can show there is an unacceptable risk, bail is usually granted.
If bail is in relation to a matter already in the District or Supreme Court, been denied by the Magistrates Court, or you have been charged with an indictable offence, the Supreme Court will be responsible for the granting of bail.
Why may bail be refused?
Considerations such as prior criminal history, the seriousness of the charge, the risk of reoffending, previous breaches of bail or if there is a genuine chance that you will not appear at your next court appearance, will all weigh into whether or not bail will be granted.
In some cases, you will have to "show cause". This means, that as the defendant you will have to show that your current imprisonment is unjustified, and that you should be granted bail. Show cause is usually applicable where you have:
• A failure to appear offence recorded
• Breached bail
• Committed a serious or violent offence
• Committed domestic violence offence
• Committed an offence with at least a maximum penalty of seven years
Examples of conditions that may make your imprisonment unjustified include:
• Lack of previous criminal history
• The period of time in which you will be in pre-sentence custody will be longer than the likely sentence that will be imposed
• You are not an unacceptable risk
• Relevant considerations in relation to your character, antecedents, employment, or background
What happens if you breach bail?
If you breach a bail condition, or fail to appear in court, a warrant will be put out for your arrest, and you may be charged with a breach of bail offence. A breach of bail will make it more difficult in the future for you to be granted bail for any further offences. Your bail will most likely also be revoked.
If you breach a bail condition by committing a further offence you will be charged with two offences, the offence itself, as well as the breach of bail. When you breach any bail condition, you will be given the opportunity to present a reasonable excuse for your breach. If you cannot, you will be sentenced for the offence of failure to appear, or breach of bail and face either 40 penalty units or a maximum 2 years imprisonment.
What are the options after bail refusal?
If your bail has been refused by the Magistrates Court, you may appeal it to the Supreme Court. Even where you are refused bail in the Supreme Court, should your circumstances change substantially, you may be able to apply for bail again. In terms of any application for bail, it is best to follow the direction and guidance of your legal representative.
As a leading criminal defence law firm, Russo Lawyers has the experience and dedication to ensure you know your rights and are adequately represented, whether you've received bail before or not, please contact us today for a no obligation initial consult.