Bail is a written promise you sign (called an undertaking) to come to Court on the date written on the undertaking to face the charges against you.
To get bail, you may have to agree to conditions, such as:
- regularly reporting to a police station.
- living at a certain address.
- having someone act as a surety.
These are called bail conditions. If you break a condition of your bail, or do not appear in Court when you are supposed to, you are breaking the law.
If you need to change your bail conditions, you will generally have to apply to Court. Sometimes your bail undertaking will allow you to change your bail conditions if, for example, the Director of Public Prosecutions (DPP) agrees to you changing the condition. You will need to get legal advice if you want to change your bail conditions to ensure you do not breach your bail undertaking. Bail is not automatic, the Court must consider a number of factors when deciding whether or not to give you bail.
How to get bail
The police can give you bail at the police watch-house (known as watch-house bail). If the police do not give you bail, they must take you to Court as soon as reasonably practicable and you can apply to the Court for bail.
If you are given bail, you will have to sign a bail undertaking. This is a written promise that you will come to Court when you are supposed to and comply with the bail conditions.
It is very important you read and understand your bail undertaking. You should keep a copy for your records. If you lose your copy, you can go back to the Court or the watch-house (if you were given watch-house bail) and ask for a copy.
Applying to Court for bail
When you go to Court, if your matter is not finished on that day, you can apply to the Court for bail. If the Magistrate gives you bail, you are allowed to leave and come back to Court on another day.
If your matter is not finished and the Court does not give you bail, then generally you will go to jail and stay there until the next Court date. On that date you can again apply for bail if you can show there has been a material change in your circumstances since you last applied for bail. Sometimes you may have to apply to a higher Court for bail.
What the Magistrate or Judge considers for bail
When deciding whether to give you bail, the Magistrate or Judge will consider things like:
- what the police say you have done, how strong the evidence is, and how serious the charge is.
- if you have a place to live.
- if you have a job.
- your criminal record (if you have one).
- if you have missed other Court dates in the past.
- whether they think you are a danger to other people.
- whether they think you will break the law again.
Usually you will be granted bail unless the prosecutors can show there is an unacceptable risk of you committing further offences or failing to appear.
In some cases, you may have to “show cause”—meaning you will not get bail unless you can show the Court your imprisonment is not justified.
If you are in a “show cause position”, it is more difficult to get bail because you have to show the Court why you should get bail and not stay in jail.
There are several things that can put you in a “show cause” position, including (but not limited to):
- if you are charged with a serious offence while you are on bail for a serious offence.
- if it is alleged you used, or threatened to use, a weapon when committing an offence.
- if you are charged with an offence against the Bail Act, (eg if you are charged for failing to appear in Court).
- if you are charged with an offence against Control Order provisions or an offence of breaching a Public Safety Order.
- if you are charged with an offence of threatening a law enforcement officer when or because the officer is investigating the activities of a criminal organisation.
- if you are charged with choking, suffocation or strangulation in a domestic setting under the Criminal Code Act 1899 (Qld).
- if you are charged with an offence punishable by a maximum penalty of at least 7 years imprisonment if the offence is also a domestic violence offence.
- if you are charged with particular offences against the Criminal Code Act 1899 including, but not limited to, threatening violence, stalking, deprivation of liberty if the offence is also a domestic violence offence.
- if you are charged with breaching a Domestic Violence Order and the offence involved violence to a person or property (or threatened or attempted violence) or if you are charged with breaching a Domestic Violence Order and you have been convicted of other certain offences within particular periods in the past.
There are some other reasons that may also put you in a “show cause” position. Your lawyer, or a duty lawyer, will be able to tell you if you are in this position, and how you can show the Court that your imprisonment is not justified.
The Court or police officer who grants you bail may include whatever special conditions they think are needed to make sure you:
- will appear in Court.
- will not commit an offence while on bail.
- will not endanger the safety or welfare of others while on bail.
- will not interfere with witnesses or obstruct the course of justice (whether in relation to your own case or someone else’s).
If you are not an Australian citizen or permanent resident, the Court may Order that you are detained in custody until you surrender your passport.
If you are charged with particular offences involving violence to a person or property, and the alleged offence was committed in licensed premises or in a public place in the vicinity of licensed premises, the Court may make a special bail condition restricting your attendance at licensed premises.
As part of your bail conditions, the Magistrate or Judge may demand a “surety”. A surety is a person who agrees to give an amount or forfeit a sum of money or property if you do not show up at Court when you are supposed to.
A person can only provide surety for you if they:
- are 18 or older.
- have not been convicted of an indictable offence.
- Are not insolvent.
- have decision-making capacity.
- are not an involuntary patient under the Mental Health Act 2016 who is detained or likely to be detained in an authorised mental health service.
- are not a forensic disability client under the Forensic Disability Act 2011.
- are not a person for whom a guardian or administrator has been appointed under the Guardianship and Administration Act 2000.
- have not been, and are not likely to be charged with an offence.
- have money or property equal to or more than the bail amount.
A person can only offer money or property as surety if it belongs to them.
If a person owns property, they can only provide surety for the amount they actually own. If there is still a mortgage, the surety can only cover the amount the person has paid off.
If you fail to appear in Court then the surety will have to pay the amount they put up for you.
Failing to appear
If you have missed your Court date, get immediate legal advice.
You may have a good reason which can be explained to the Court, but you must do this as soon as you can. Even if you were sick on the Court date and you have a medical certificate, you still have to go to Court as soon as you are well and explain. If you do nothing, you will be in more trouble and you could be charged with failing to appear
Changing bail conditions
To change your bail conditions, you will generally need to go back to the Court which granted your bail and explain to them why the conditions need to be changed. You can do this at your next Court date, or if it is urgent, you can contact the Court to see if they can move your Court date forward. If you have a bail condition requiring you to live at a particular address and to, or report to a particular police station at certain times, sometimes your bail condition will allow you to seek approval from the Officer in charge of Police Prosecutions or the Office of the Director of Public Prosecutions to change your address or reporting station or times. Whether you can do this depends on exactly what your bail undertaking says.
You should get urgent legal advice if you need to change your bail conditions to make sure you are not breaching your bail. If you breach your bail conditions, you can be charged with an offence.
If you have multiple charges, you may have bail to more than one Court (eg the Magistrates Court and the District Court)—any changes will have to be made to all bail undertakings.
Bail in the District and Supreme Court
If your charges are committed to the Supreme or District Court, your bail becomes a promise to appear in the District or Supreme Court, rather than the Magistrates Court.
It is very important you continue to meet your bail conditions and let the Court know if you need to change your address. All the notices from the District or Supreme Court will be sent to your address. If you do not let the Court know about these changes, you will not receive notices to attend Court and you may fail to appear. If this happens, the Judge may issue a warrant for your arrest.
Disclaimer: The material presented on this website is an information source only. The information on this website is written for people resident in, or affected by the laws of Queensland, Australia only. Links to other sites from this website are provided for the users’ convenience. The LGBTI Legal Service does not endorse these sites and is not responsible for the information on these sites or the use made of this information. If you have a specific legal problem, you should consult a professional legal advisor.