Bail Presumptions (Qld)
Under Queensland law, there are some situations where a person accused of criminal offences has a prima facie right to receive bail. There are also some situations where an accused person will not be granted bail unless they can convince the court that bail should be granted. These are known as bail presumptions. This page outlines how bail presumptions operate under the Queensland Bail Act 1980.
What are bail presumptions?
The term ‘bail presumption’ refers to what the starting point is when assessing whether bail ought to be granted or refused.
When the presumption is in favour of bail, the starting point is that bail should be granted. However, bail may still be refused if there are compelling reasons for refusing it.
When the presumption is against bail, the starting point is that bail should be refused. However, bail may still be granted if there are compelling reasons for releasing the person on bail.
Essentially, the bail presumption that applies determines whether it is the defence or the prosecution that bears the burden of proving that bail should or should not be granted.
Presumption in favour of bail
Under section 9 of the Bail Act 1980, a person charged with an offence has a right to be released on bail until the matter has been finalised. This means that there is a general presumption in favour of bail in Queensland, although this term is not used in the legislation.
When the presumption is in favour of bail and the prosecution does not oppose bail, bail will generally be granted without the need for the defence to make detailed submissions.
When the presumption is in favour of bail, but the prosecution opposes the grant of bail, both parties will need to make submissions, and then the court will decide whether to grant or refuse bail.
Presumption against bail
The presumption in favour of bail is reversed in respect of certain serious offences, and in some situations.
Under section 16 of the Bail Act 1980, a person must ‘show cause’ why they should be released on bail if:
- they are charged with an indictable offence allegedly committed while they were awaiting trial for another indictable offence
- they are charged with an indictable offence involving the alleged use of weapon
- they are charged with an offence for which a sentence of indefinite detention or life imprisonment must be imposed
- they are charged with making a threat under circumstances of aggravation
- they are charged with an offence against the Bail Act 1980
- they have previously been convicted of a terrorism offence
- they have been the subject of a Commonwealth control order.
When a person applies for bail under any of the above-listed circumstances, the presumption is against bail. This means that bail will not be granted unless the defence demonstrates to the court that bail should be granted.
There are a range of reasons why bail may be granted in spite of the presumption being against bail. These include:
- because the prosecution case is not strong
- because the accused is likely to spend a long time in custody on remand if refused bail
- because of the accused’s personal circumstances – for example, because they have poor health or because they are responsible for caring for a child or a parent
- because the court is satisfied that the accused has a lot of support from their family or from the community
- because the accused is unlikely to receive a custodial sentence if found guilty.
Children and bail presumptions
When a person under 18 is charged with criminal offences, the bail presumptions that apply are somewhat different.
The Youth Justice Act 1992 modifies the bail presumptions set out in the Bail Act 1980.
In the past, there was a presumption in favour of bail for a child charged with criminal offences. However, as part of a suite of sweeping amendments to Queensland youth justice laws, bail laws are now significantly tougher when it comes to young persons.
The presumption in favour of bail no longer exists when a child is charged with a prescribed indictable offence such as armed robbery or burglary.
There is also no longer a presumption in favour of bail for a child if they are alleged to have committed an offence whilst on bail for another offence.
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.