A Bail undertaking is a promise to continue to appear when required at court after you have been charged with an offence. Prior to being convicted of an offence, a person in a civilised society enjoys the presumption of innocence and a bail undertaking is a formalised manner to balance the competing needs for the preservation of liberty of the individual and the execution of the criminal justice system with each being features of the administration of justice.

Why and how is bail granted?

Section 9 of the Bail Act confers upon any person who is brought before a court a prima facie right to bail ¹. This right is subject to the ‘further provisions of the Bail Act’ and these further provisions which provide for circumstances where bail must be refused are found in section 16 of the Bail Act where an unacceptable risk is identified to exist or the defendant is deemed to be in a prescribed ‘show cause’ position.

It is often the case that bail will be granted on an individual’s own undertakings and conditions. This phrasing is the court’s indication that the onus remains on the individual to ensure that they will abide by any lawful direction of the court or other authority and return to court at the next court date either personally or through legal representation. This is the least stringent manner in which bail can be granted and is granted in accordance with the presumption of innocence and the presumption of the court that the individual will appear at the next hearing date of their matter.

Conditions of Bail

Bail is also often granted with conditions in accordance with section 11 of the Bail Act. The imposition of any condition on an individual granted bail is at odds with the presumption of innocence and involves weight being attributed to countervailing considerations required for the due administration of justice. Where a condition is imposed, it is deemed that the condition which limits the liberty of the individual is required to duly administer justice despite it being arguably unjust to impose restrictions on the liberty of an individual presumed innocent of an offence. Conditions can be imposed as a means of offsetting an unacceptable risk and returning the nature of the risk to the realm of acceptability.

Along the spectrum towards circumstances where an application for bail may be refused exist circumstances for which an unacceptable risk can be cured by the imposition of bail conditions. Section 11 of the Bail Act provides a list of specified and special conditions which address the circumstances where unacceptable risk can be said to be cured by conditions.

Section 11(1) of the Bail Act provides specific conditions relating to the deposit of security and sureties and states:

“A court or police officer authorised by this Act to grant bail shall consider the conditions for the release of a person on bail in the following sequence—

(a) the release of the person on the person’s own undertaking without sureties and without deposit of money or other security;

(b) the release of the person on the person’s own undertaking with a deposit of money or other security of stated value;

(c) the release of the person on the person’s own undertaking with a surety or sureties of stated value;

(d) the release of the person on the person’s own undertaking with a deposit of money or other security of stated value and a surety or sureties of stated value;

but shall not make the conditions for a grant of bail more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.” (Emphasis added)

The requirement of this sequence of consideration is consistent with the final part of the paragraph which provides that a court or police officer shall not make the conditions for a grant of bail more onerous than are necessary. This sort of condition is often reserved for more serious offences and typically no security or surety will be required by the court when granting bail. While the conditions dealt with in section 11(1) are limited to the imposition of deposits of money and surety assurance, section 11(2) deals with the sorts of conditions which are imposed to more specifically address and cure identified unacceptable risks.

Section 11(2) of the Bail Act deals with what are referred to as ‘special’ conditions and provides:

“Where a court or a police officer authorised by this Act to grant bail considers that the imposition of special conditions is necessary to secure that a person—

(a) appears in accordance with the person’s bail and surrenders into custody; or

(b) while released on bail does not—

(i) commit an offence; or

(ii) endanger the safety or welfare of members of the public; or

(iii) interfere with witnesses or otherwise obstruct the course of justice whether in relation to the person or another person;

Examples of special conditions for paragraph (b)(ii)—

• a special condition that prohibits a person from associating with a stated person or a person of a stated class

• a special condition that prohibits a person from entering or being in the vicinity of a stated place or a place of a stated class

that court or police officer shall impose such conditions as the court or police officer thinks fit for any or all of such purposes.”

The threshold for justifying the imposition of special conditions is lower than that for section 11(1) conditions and the discretion is exercised as the court or police officer ‘thinks fit’ for any or all of such purposes of securing against the unacceptable risk of the occurrence of the circumstances stated at section 11(2)(a) and (b) of the Bail Act. Some typical conditions which one might have included in their bail undertaking will be a requirement to not go to a place, to not communicate with a person, to abide by a curfew, to not consume alcohol or illicit substances and in some circumstances, where the court ‘thinks fit’ to wear an ankle monitor.

Learn more about refusal of bail and show cause situations in part 2 in the next edition of the RMO quarterly. Need bail advice? Call one of our experienced criminal lawyers for legal advice today.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

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¹ Williamson v Director of Public Prosecutions (DPP) (Qld) [2001] 1 Qd R 99.