When you are charged with a criminal offence, the prosecution may argue against you being granted bail.
BAIL – KNOWING THE RISK
If you are charged with a criminal offence, you will either be held in custody or released subject to a bail undertaking. There are usually two ways in which someone who has been charged may be granted bail:
- The watch house officer may grant bail and may impose whatever conditions they deem appropriate; or
- The defendant appears before a Court and applies for bail.
When applying for bail, the police and/or the Court will consider several factors, some of which are:
- The nature of the offence – particularly if violent, domestically violent or involving a weapon;
- Criminal history – Particularly offences against the Bail Act such as breach of bail offence;
- Current bail status – if the defendant is on bail already, can they continue to comply with bail or enter into a new bail undertaking?
- The risk of reoffending – does the defendant have a high risk of committing further offences if left in the community
In most instances, bail is as of right and the prosecution has the onus of proof, meaning they have to explain to the Court why a defendant is an unacceptable risk to the community should they be released on bail. In certain circumstances, this position can be reversed and the Magistrate must refuse bail unless the defendant can demonstrate why ongoing detention is not justified. This is called a show cause bail application, it typically applies where the defendant is already on bail for an Indictable offence, a weapon has been alleged to have been used, it is a domestic violence offence or the defendant is alleged to have committed an offence against the Bail Act 1980.
It is advisable to engage a lawyer in any situation where a contested application for bail is before the Court. It is critical at this time to investigate all aspects including proposed conditions and/or any documents available to the defendant. It can require an experienced hand when applying for bail to consider all the aspects deliberated in negotiating a bail undertaking. It is important to remember that a defendant typically only has one attempt to make an application for bail in the Magistrates Court, meaning, if bail is refused the defendant is held in custody pending the Court proceedings.
In order to make a subsequent application, the defendant must demonstrate a material change of circumstances from when they made the first application. This is not a straightforward process however circumstances that may amount to a material change may include a significant change to the charge/s, provision of a surety, a revised address to reside at to name a few.
If bail has been refused, the defendant may apply to the Supreme Court for a further hearing however this is a detailed process and therefore it is very important to make sure the initial application is done properly.
Bouchier Khan Lawyers has extensive experience in assisting clients with all aspects of applying for bail whether in Supreme Court at Brisbane or Toowoomba or your local Magistrates Court such as Ipswich, Toowoomba or Brisbane or any other in Queensland.