Bail Application Brisbane: Tests for Bail in Queensland

If you have been arrested and charged with a criminal offence in Queensland, one of the first questions you may have is whether you can be released from custody while your case is being dealt with by the court.

A bail application in Queensland is a legal process through which an accused person seeks release from custody while their criminal charges remain unresolved. Bail is not automatic. The court must consider the applicable legislation, the circumstances of the alleged offending, the accused person’s background and whether any risks associated with release can be appropriately managed.

The law governing bail in Queensland is principally contained in the Bail Act 1980 (Qld).

For some accused people, the main issue is whether the prosecution can establish an unacceptable risk if bail is granted. In other cases, the accused must first satisfy a more demanding legal requirement known as the show cause test.

Understanding these tests is important when preparing a bail application. A properly prepared application should identify the legal issues, address the concerns likely to be raised by the prosecution and provide evidence supporting the proposed release of the accused.

If you or a family member is in custody, obtaining advice from an experienced Brisbane criminal lawyer may help you understand the applicable test and the material needed to support a bail application.

1. What Is Bail?

Bail is the legal authority for an accused person to remain in the community while awaiting the resolution of their criminal charges, subject to an undertaking and any conditions imposed.

Bail does not mean that the charges have been withdrawn or that the accused has been found not guilty. The criminal proceedings continue, and the accused must attend court as required.

Depending on the circumstances, bail conditions may require an accused person to:

• Reside at an approved address.

• Report to a nominated police station.

• Avoid contacting a complainant or prosecution witness.

• Refrain from entering particular places.

• Comply with a curfew.

• Provide a surety where appropriate.

• Comply with other conditions reasonably directed towards managing an identified risk.

The court must consider the applicable legal requirements before granting bail. Conditions may help manage particular risks, but they cannot guarantee that bail will be granted.

2. What Are the Main Legal Tests for a Bail Application in Queensland?

Under section 16 of the Bail Act 1980 (Qld), two important questions may arise:

1. The show cause test: Is the accused required to show cause why their detention in custody is not justified?

2. The unacceptable risk test: Is there an unacceptable risk that requires bail to be refused?

These tests serve different purposes.

The show cause test applies to specified categories of cases. If it applies, the accused must demonstrate why their detention is not justified.

The unacceptable risk test considers whether releasing the accused would create an unacceptable risk of certain events occurring, including failing to appear in court, committing further offences, endangering someone’s safety or interfering with witnesses.

A bail application must be prepared with the correct test in mind. Where the show cause requirement applies, satisfying that requirement does not necessarily resolve the separate question of unacceptable risk.

3. The Show Cause Test: When Must an Accused Person Show Cause?

The show cause test is one of the most important considerations in a Queensland bail application.

Ordinarily, the court considers whether there is an unacceptable risk if the accused is released. However, section 16 of the Bail Act 1980 (Qld) identifies circumstances in which an accused person must show cause why their detention is not justified.

In practical terms, the accused must persuade the court that remaining in custody is not justified in the circumstances of the case.

When does the show cause requirement apply?

The requirement may arise in several circumstances prescribed by the legislation. Examples include certain cases involving:

• Specified serious offences allegedly committed while the accused was already on bail for another serious offence.

• Certain offences involving the alleged use or threatened use of a weapon.

• Particular offences involving domestic violence, including specified strangulation offences.

• Certain breaches of domestic violence orders involving violence or threatened violence.

• Certain offences against the Bail Act 1980 (Qld) itself.

This is not an exhaustive list. The precise wording of the legislation must be examined to determine whether the requirement applies to a particular charge and the accused person’s circumstances.

The fact that an offence is serious does not, by itself, establish that the show cause test applies. The relevant statutory provision must be identified.

How can an accused person satisfy the show cause test?

The evidence required will depend on the circumstances of the case. The court may need to consider the nature of the alleged offending, the accused person’s personal circumstances, their criminal history, their conduct while previously on bail and the likely period they would otherwise remain in custody.

Material supporting a bail application may include:

• Evidence of stable and suitable accommodation.

• Employment records or evidence of an existing job.

• Information about family responsibilities and other personal circumstances.

• Evidence of treatment, rehabilitation or support arrangements where relevant.

• Details of previous compliance with bail conditions.

• A proposed bail plan addressing the prosecution’s concerns.

• Information about the likely progress and timing of the criminal proceedings.

The court considers the particular circumstances and the applicable legal test. No single factor automatically establishes that an accused person has shown cause.

For example, a person with stable accommodation, employment and strong community ties may be able to rely on those circumstances as part of their application. However, if the charge involves allegations of violence, previous breaches or offending while on bail, those matters will also need to be addressed.

A strong bail application should explain why detention is not justified, rather than simply listing favourable personal circumstances.

4. The Unacceptable Risk Test

Where the show cause requirement does not apply, the court generally considers whether there is an unacceptable risk associated with releasing the accused.

The relevant statutory test is contained in section 16 of the Bail Act 1980 (Qld).

For adult accused persons, bail must generally be refused if the decision-maker is satisfied that there is an unacceptable risk that the accused, if released:

1. Would fail to appear and surrender into custody as required.

2. Would commit an offence.

3. Would endanger the safety or welfare of the alleged victim or another person.

4. Would interfere with witnesses or otherwise obstruct the course of justice.

The legislation also provides for refusal where the accused should remain in custody for their own protection.

The court must assess the circumstances of the individual case. It is not enough to identify a theoretical possibility of a problem. The issue is whether the risk meets the statutory threshold of being unacceptable.

Risk of failing to appear in court

The court must consider whether the accused is likely to attend court as required.

Relevant considerations may include:

• Whether the accused has previously failed to appear.

• Whether they have complied with previous bail undertakings.

• Their residential and employment circumstances.

• Their family and community connections.

• Whether they have a reliable address and practical means of attending court.

• Whether any proposed conditions would adequately address concerns about attendance.

For example, an accused person with a history of failing to appear may need to provide a detailed explanation of those failures and demonstrate what has changed.

A proposed residential address, reporting requirements and other appropriate conditions may assist in addressing the concern.

Risk of committing further offences

The court may consider whether the accused is likely to commit further offences if released.

Relevant matters may include the nature of the current allegations, the accused person’s criminal history, previous compliance with court orders and any other information bearing on the risk of further offending.

Where relevant, evidence of treatment, rehabilitation, supervision or support arrangements may assist in addressing the concern.

However, merely promising not to commit further offences may not be sufficient. The application should identify the actual risk alleged and explain how it can be managed.

Risk to the complainant or another person

This issue can be particularly important in cases involving alleged violence, domestic violence, threats or offences involving family members.

The court may consider the nature of the allegations, the relationship between the parties, any history of alleged violence and the circumstances in which the parties may come into contact.

In domestic violence matters, the legislation specifically directs attention to the risk of further domestic violence or associated domestic violence.

Depending on the circumstances, a proposed bail plan may include:

• No contact with the complainant.

• Restrictions on approaching specified people or places.

• Living at an alternative address.

• Arrangements for collecting personal belongings.

• Restrictions on communicating through third parties.

Where an accused person seeks permission to live with or have contact with a family member, the proposal must be assessed against the particular risks and legal restrictions involved.

A court will not necessarily accept that a proposed arrangement is safe simply because the accused person and the other family members wish to live together.

Risk of interfering with witnesses or obstructing justice

The court may also consider whether the accused is likely to interfere with witnesses, influence their evidence or otherwise obstruct the criminal proceedings.

This may be relevant where the accused and a prosecution witness know each other or have an ongoing personal or professional relationship.

Conditions prohibiting contact with witnesses may help address the concern. However, the proposed conditions must be realistic and sufficiently clear to be effective.

A bail application should explain how the accused will comply with any restrictions and avoid contact that could jeopardise the proceedings.

5. What Factors Does the Court Consider When Assessing Risk?

Section 16(2) of the Bail Act 1980 (Qld) requires consideration of relevant matters, including specified factors.

These include:

The nature and seriousness of the offence

The court considers the allegations and their seriousness. More serious allegations may raise particular concerns, but seriousness must be considered alongside the other relevant circumstances.

The accused person’s character and background

The court may consider the accused person’s character, antecedents, associations, home environment, employment and background.

Stable accommodation, employment and family support may assist an application. Conversely, an unstable living arrangement or relevant history of offending may require further explanation.

Previous grants of bail

The court considers the history of previous grants of bail.

A history of complying with bail conditions may be relevant to the assessment of risk. Previous breaches, failures to appear or alleged offending while on bail may raise concerns that need to be addressed.

The strength of the prosecution case

The strength of the evidence against the accused is another relevant consideration.

The bail hearing is not ordinarily a trial of the charges. The court does not determine guilt or innocence simply by deciding whether to grant bail.

However, the available evidence and the circumstances of the allegations may be relevant to the bail assessment.

Other relevant considerations

Depending on the circumstances, the legislation also directs attention to other matters, including particular considerations relevant to Aboriginal and Torres Strait Islander accused persons and the risk of further domestic violence in applicable cases.

The court considers the relevant matters as a whole. A bail application should therefore be tailored to the actual concerns raised by the prosecution rather than relying on a generic list of favourable personal circumstances.

6. Can Bail Conditions Address the Risks?

Yes. Bail conditions can be an important part of a successful bail application.

Under section 11 of the Bail Act 1980 (Qld), the court must consider conditions in accordance with the statutory framework. Conditions must not be unnecessarily onerous.

The purpose of a proposed condition should be to address a relevant concern, rather than to impose restrictions without a proper reason.

For example:

These are examples only. The appropriateness of any condition depends on the allegations, the individual circumstances and the applicable legislation.

A proposed bail plan should be practical and supported by evidence. A condition that cannot realistically be followed may not assist the application.

7. What Evidence Should Be Prepared for a Bail Application?

A bail application should be supported by material that addresses the legal test and the concerns likely to be raised by the prosecution.

Depending on the case, useful material may include:

• An affidavit or other appropriate evidence about the accused person’s circumstances.

• Confirmation of the proposed residential address.

• A letter from an employer or evidence of employment.

• Information about family responsibilities.

• Details of any proposed surety, where relevant.

• Evidence of treatment or rehabilitation arrangements.

• Information about the accused person’s previous compliance with court orders.

• A proposed set of bail conditions.

• Material relevant to the strength of the prosecution case.

• Information about the likely time until the next significant court event or trial.

The documents required will vary. Not every application requires every type of evidence, and the appropriate form of evidence should be considered in light of the applicable procedure.

The lawyer preparing the application should identify the main risks and gather material that directly addresses them.

A well-prepared application does more than demonstrate that the accused person has a job or a family. It explains why the applicable legal test is satisfied and why any relevant risks can be managed.

8. What Happens If the Court Refuses Bail?

If bail is refused, the accused will generally remain in custody while the criminal proceedings continue, subject to any subsequent release order.

A refusal does not necessarily mean that bail can never be granted.

Depending on the circumstances, another application may be possible. If the accused has already been refused bail, the applicable procedural requirements must be considered, including whether there has been a material change in circumstances and whether the application must be made in a higher court.

A material change may involve new evidence, a change in the proposed accommodation, a revised bail plan, developments in the proceedings or another significant change relevant to the bail assessment.

The appropriate next step depends on the reasons for the earlier refusal and the applicable legislation.

It is important to obtain legal advice before making a further application so that the proposed application properly addresses the issues that led to the original refusal.

9. Can You Apply for Bail in the Supreme Court of Queensland?

In appropriate circumstances, a person may apply for bail in the Supreme Court of Queensland.

The appropriate court and procedure depend on the circumstances of the case, the court in which the proceedings are being dealt with and any previous bail decisions.

A Supreme Court bail application may involve substantial preparation, particularly where the prosecution opposes release or the case involves serious allegations.

The application may require detailed written material, supporting evidence and submissions addressing the applicable legal tests.

Before proceeding, a lawyer should assess the prospects of the application, the reasons for any earlier refusal, the evidence available and the costs involved.

An application to a higher court is not a guarantee that bail will be granted. The same underlying concerns about unacceptable risk, together with any applicable show cause requirement, must be addressed under the relevant law.

10. Why Is Legal Representation Important for a Bail Application?

A bail application can have a significant effect on an accused person’s ability to live in the community while their case is pending.

The preparation required will depend on the nature of the charges, the applicable legal test and whether the prosecution opposes release.

A criminal lawyer can assist by:

• Identifying whether the show cause test applies.

• Assessing the relevant unacceptable-risk considerations.

• Obtaining instructions and supporting documents.

• Preparing a suitable bail plan.

• Considering appropriate bail conditions.

• Responding to the prosecution’s concerns.

• Preparing legal submissions.

• Advising on the appropriate court and procedure.

• Explaining the likely costs and practical steps involved.

The strength of a bail application depends on its circumstances and supporting material. No lawyer can guarantee that a court will grant bail.

However, careful preparation helps ensure that the court has the relevant information and legal submissions needed to assess the application.

Frequently Asked Questions About Bail Applications in Queensland

Is bail automatic in Queensland?

No. Bail is governed by the Bail Act 1980 (Qld). The applicable legal test depends on the circumstances, including whether the show cause requirement applies and whether there is an unacceptable risk if the accused is released.

What is the difference between show cause and unacceptable risk?

The show cause test requires the accused to demonstrate why their detention is not justified in specified circumstances.

The unacceptable risk test considers whether there is an unacceptable risk of events such as failing to appear, committing further offences, endangering a person or interfering with witnesses.

Where the show cause requirement applies, satisfying it does not necessarily mean that bail must be granted. The separate risk assessment must also be addressed.

Can I get bail if I have a criminal history?

A criminal history does not automatically prevent bail. The court considers the nature and relevance of the history, previous compliance with bail, the current allegations and the other circumstances of the application.

Previous offending or breaches may create difficulties, but their significance depends on the individual case.

Can I get bail if the prosecution opposes it?

Yes, it is possible for a court to grant bail despite prosecution opposition. The court must independently apply the relevant legal test and consider the evidence and submissions.

The prosecution’s position is important, but it does not itself determine the outcome.

Can bail conditions be changed after bail is granted?

It may be possible to vary bail conditions. The appropriate procedure depends on the terms of the undertaking and the applicable legislation. You should obtain legal advice before acting on any proposed change. Do not assume that an informal agreement with another person allows you to disregard an existing condition.

How long does a bail application take?

The time required depends on the court, the seriousness and complexity of the case, the availability of evidence and whether the prosecution opposes the application.

Some applications can be dealt with relatively quickly. Others require substantial preparation and a hearing.

What should I do if a family member is in custody?

Seek legal advice as soon as reasonably possible. Gather relevant information about the charges, the next court date, the proposed accommodation and any practical support available.

A lawyer can assess the applicable test, explain the procedure and advise what material may assist the application.

Need a Bail Application Lawyer in Brisbane?

If you or a family member has been refused bail or remains in custody following an arrest, it is important to understand the legal options available.

AJ Faisal can discuss your circumstances, explain the relevant bail tests and advise on the steps that may be available in your case.

Contact AJ Faisal to arrange a free initial consultation. You can discuss the charges, the reasons bail may be opposed, the evidence required and the likely costs of preparing an application.

Every bail application is different. The appropriate approach depends on the allegations, the accused person’s circumstances, the applicable legislation and the evidence available.

Obtaining advice early may help you understand the legal process and make informed decisions about the next steps.

Disclaimer: This article provides general information about Queensland bail law and is not legal advice. The application of the law depends on the facts of each case, and legislation may change. You should obtain advice about your particular circumstances from a qualified legal practitioner.