Bail And Change Of Circumstances (Qld)
When a person is refused bail by a court, they may generally make another bail application only if there has been a material change in their circumstances. This page outlines the situations that may be found to amount to a material change of circumstances for the purposes of a second bail application.
Legislation
Under section 19B of the Bail Act 1980, a person who has been refused bail by a magistrate may apply for a review of that decision by a judge of the Supreme Court.
Change of circumstances
Although the legislation does not use the term ‘change of circumstances’, case law has established that a person may only seek a review of a court decision to refuse bail if they can establish that there has been a material change in circumstances.
A change of circumstances must be established on the balance of probabilities.
What amounts to change of circumstances?
A court may find that there has been a material change of circumstances based on the following:
- the fact that a committal hearing has occurred and has exposed weaknesses in the prosecution case
- the fact that the accused has had difficulty accessing the brief of evidence while in custody
- the fact that there has been an unforeseen delay, taking into account the length and circumstances of the delay
- the fact that the accused was unrepresented when they made their last bail application, and now has legal representation.
What does not amount to a change of circumstances?
A court will not find the following to amount to a material change in circumstances:
- the fact that the accused is putting forward a different bail proposal – for example, proposing to live at a different address
- facts or circumstances that were predominantly within the accused’s knowledge at the time of the last bail application.
Next steps
If a court is satisfied on the balance of probabilities that there has been a material change of circumstances, it will proceed to hear the bail application. This will involve applying the same tests as if a person was applying for bail for the first time.
First, the court will consider whether there is an unacceptable risk that the person, released on bail, will commit an offence, endanger the safety of a person, interfere with witnesses or evidence, failed to attend court to finalise their charges.
Second, if the person is required to ‘show cause’, the court will consider whether they have shown cause as to why they should be granted bail. A person must ‘show cause’ if they are charged with certain offences, or if they have been convicted of certain offences in the past. When a person is required to ‘show cause’, this means that the defence bears the burden of establishing that bail should be granted.
Case law
The test to be applied when a person seeks review of a decision about bail has been discussed in various court decisions.
Ex Parte Edwards
In the 1989 decision of Ex Parte Edwards, the court said:
‘… the question is whether… it can be said that there has been a material change in circumstances (R v Slough Justices, ex parte Duncan); or to use the formula in O.45 r.1, facts have been discovered which, if discovered in time, “would have entitled the applicant to an order in his favour”… A persuasive and satisfying case is therefore required, and not one in which the differences disclosed by the additional material go only to matters of mere detail, or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the granting of bail’.
Sica v DPP
In the 2010 decision of Sica v DPP, the Queensland Court of Appeal said:
“successive applications for bail are made following the refusal of an earlier application the subsequent application will only succeed where the applicant demonstrates that a material change in circumstances has occurred between the two applications.”
Applying to vary bail
In some cases, a person may experience a change in circumstances after they have been released on bail. This may mean that the bail conditions that were imposed are no longer appropriate, or that it is no longer practicable for the person to comply with those conditions.
In this situation, the person should make an application to vary the conditions of their bail. This application should be made to the court that granted bail.
The conditions of bail will generally only be varied if there has been a change of circumstances that makes this appropriate. For example, if the person has gained employment since they were granted bail, they may need changes to their bail conditions if the conditions imposed were very restrictive.
When deciding whether to vary bail, a court will consider the same matters that were considered when deciding whether to grant bail. In other words, it will consider whether an unacceptable risk results from the variation that is being proposed.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.