Bail

This file last saved 11 August, 2019 10:47

Introduction

  1. Bail involves the release from custody of an individual awaiting determination of a charge. There is a general presumption in favour of granting bail unless there is an unacceptable risk that the defendant will:
    1. fail to appear on the adjourned date;
    2. commit further offences;
    3. endanger other people;
    4. be a danger to him/herself; or
    5. intefere with witnesses.

    Powers in relation to bail

  2. The following powers are generally exercised in conjunction with another JP:
      3. hear applications for bail;
    1. seek information about the defendant to enable you to decide whether or not bail should be granted;
    2. decide on any bail conditions; and
    3. hear show cause applications, where the onus is on the defendant or their representative to demonstrate why bail should not be refused.

    deciding on suitability for bail

  3. The following factors may be taken into account when deciding the defendant's suitability for bail:
    1. nature and seriousness of the offence;
    2. the defendant's character, antecedents, personal history, criminal history, associations, home environment, employment and background;
    3. the defendant's age;
    4. history of any previous grants of bail;
    5. the strength of evidence against the defendant;
    6. the defendant's criminal history, if any;
    7. whether a surety or cash deposit is necessary;
  4. You should refuse bail if, on any of these grounds, the defendant seems unsuitable, or if there has been insufficient time for the relevant information to be obtained.

    5. refusing bail

  5. If you refuse to grant bail, you must have the defendant remanded in custody, and a Remand Warrant must be prepared and signed by both you and the other JP who sits with you. This warrant authorises the police to deliver the defendant to the nearest remand centre, where they will be held until the date of the next court hearing.

    6. imposing bail conditions

  6. If you decided to grant bail you may impose certain conditions. The Bail Act 1980 allows many types of conditions to be a part of the bail undertaking. Some examples are:
    1. Reporting condition - defendant has to report to a police station at set times.
    2. Residence condition - defendant must reside at a particular location.
    3. No-contact condition - defendant not to have contact with certain people.
    4. Surrender passport - defendant ordered to surrender passport to the court.
    5. Cash bail - the defendant is ordered to pay cash into the court.
    6. Surety - a third party is ordered to guarantee that the defendant will appear in court on the due date.

    show cause

  7. A show cause situation is where a defendant is charged with an offence:
    1. while on bail for another offence;
    2. that involves the use of firearms, offensive weapons or explosives; and/or
    3. against the Bail Act 1980 (for example, failing to appear in court).
  8. In this situation the onus is on the defence to prove that the defendant is not an unacceptable risk for bail.
  9. In the court proceedings, the defendant or legal representitive speaks first, followed by the prosecutor. It may be more difficult for the defendant to obtain bail in these circumstances.

    10. limitation of power

  10. The powers of a JP are limited to taking or making a procedural order. A JP can therefore only:
    1. determine bail for a person charged with an offence; or
    2. adjourn a matter to another date.

    hearing a bail application

  11. The procedural steps for hearing a bail application are as follows:
    1. Tell the prosecutor or clerk that you and your fellow JP are ready to commence.
    2. The prosecutor or clerk will open the court.
    3. Take your seat after bowing slightly.
    4. The prosecutor or clerk will invite people in the courtroom to sit.
    5. Greet the parties before the court and ask them to announce themselves.
    6. Thank the parties and ask the prosecutor for the matter to be dealt with.
    7. Check you have the relevant bench charge sheet or bench complaint sheet.
    8. Read the charges to the defendant to ensure the defenedant understands the charge.
      1. If the defendant has legal representation, they can waive the right to read the charge.
      2. If the defendant does not have legal representation, you must read the charge out loud in full and check that they understand it.
    9. Announce the matter will be adjourned to a date when a magistrate is available.
    10. As the defendant if they wish to enter a plea, and note the answer on the court file.
    11. Determine if the defendant is presently on bail.
    12. Ask the prosecutor if bail is opposed or if you have the power to grant it.
    13. If the aprosecutor does not oppose bail, grant bail with termsand condition you believe are suitable for the offence and the defendant's character.
    14. If the prosecutor opposes bail, ask why.
    15. As the defendant or their legal representative to explain why bail should be granted.
    16. Adjourn with your fellow JP to consider the submissions. It is common practice to continue bail if bail has already been granted.
    17. Remand the defendant to the next available court date and announce your decision regarding bail. If you decide not to grant bail, you must issue a warrant remanding the defendant in custody, note your reasons and invite the defendant to apply to a magistrate.
    18. Note on the court record all of your actions and note submissions if bail was opposed.
    19. Unless there are more defendants, the prosecutor or clerk should close the court.
    20. Enter the relevant details in your logbook.

    References

  12. The Duties of Justices of the Peace (Qualified) Handbook, Queensland Government (Jun 2017) Ch 6.4 and 6.5.