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You are charged with a criminal offence. What happens next? Are you held in custody till your trial?

Well, not quite. The state of Queensland, by the virtue of s9 of the Bail Act 1980, provides an accused to a prima facie “right” to bail. Bail is not a “get out of jail free card”, as it is merely a undertaking you enter in, to attend Court to deal with your charges. What this means is that you are usually allowed to go at large, on your own recognizance or on a surety of another person or an amount of money; till your case is ready to be heard by the Court. This again, is not absolute, as the Magistrate or Judge who hears your application for bail is the one who weighs your situation in its entirety before making a decision as to whether to grant you bail or not.

Bail usually comes with a certain number of conditions, which may include no contact orders, Police monitoring and that you attend Court as required. It must be noted that breaching of a bail condition is considered very serious in nature and will almost definitely affect not only your current suitability for being at large, but also any future grants of bail. For this reason, much care must be taken when entering into a bail undertaking.

Adrian J. Carter, Australian Lawyer

Breaching bail is a serious offence and an additional criminal charge in itself.

An exception to the “right” to bail, is when a “show cause” situation occurs. This can happen in a whole number of circumstances, where basically the onus of proof is reversed, and now the accused has to show why they should be let out on bail.

Something like this happened this past week at the Townsville Magistrate’s Court where Adrian J. Carter appeared as Prosecutor and was able to successfully oppose bail for two accused in a widely publicised Break and Enter case. This was a show cause situation as the allegations stated that dangerous weapons had been used in the commission of the offences. The Defence lawyer addressed the Court in relation to the show cause and proposed that the risk to the community by reoffending and failing to appear could be minimized by stringent conditions placed on the accused. The Prosecution emphasized the nature and seriousness of the offences alleged, that they were said to have occurred at night in the company of others and whilst armed, which were serious aggravating factors to be considered by the Court. Most importantly, Carter, in his submissions to the Court, was able to expose significant discrepancies in the submissions of the accused, which demonstrated their lack of credibility. The Magistrate was satisfied that cause had not been shown that releasing the accused into the community was a safe option, and they were held in custody.

As you can see, much goes into a determining an accused’s suitability for bail and it is not a blanket approach.


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