Bail is a written promise you sign (called an undertaking) to come to court on the date written on the undertaking to face the charges against you.
To get bail, you may have to agree to conditions, such as:
- regularly reporting to a police station
- living at a certain address
- having someone act as a surety.
These are called bail conditions. If you break a condition of your bail, or don’t appear in court when you’re supposed to, you’re breaking the law. Get immediate legal advice.
If you need to change your bail conditions, you’ll generally have to apply to court. Sometimes your bail undertaking will allow you to change your bail conditions if, for example, the Director of Public Prosecutions (DPP) agrees to you changing the condition. You'll need to get legal advice if you want to change your bail conditions to ensure you don’t breach your bail undertaking. Bail isn’t automatic, the court must consider a number of factors when deciding whether or not to give you bail.
How to get bail
The police can give you bail at the police watch-house (known as watch-house bail). If the police don’t give you bail, they must take you to court as soon as reasonably practicable and you can apply to the court for bail.
If you’re given bail, you’ll have to sign a bail undertaking. This is a written promise that you’ll come to court when you’re supposed to and comply with the bail conditions.
It’s very important you read and understand your bail undertaking. You should keep a copy for your records. If you lose your copy, you can go back to the court or the watch-house (if you were given watch-house bail) and ask for a copy.
Applying to court for bail
When you go to court, if your matter isn’t finished on that day, you can apply to the court for bail. If the magistrate gives you bail, you’re allowed to leave and come back to court on another day.
If your matter isn’t finished and the court doesn’t give you bail, then generally you’ll go to jail and stay there until the next court date. On that date you can again apply for bail if you can show there has been a material change in your circumstances since you last applied for bail. Sometimes you may have to apply to a higher court for bail.
What the magistrate or judge considers for bail
When deciding whether to give you bail, the magistrate or judge will consider things like:
- what the police say you’ve done, how strong the evidence is, and how serious the charge is
- if you have a place to live
- if you have a job
- your criminal record (if you have one)
- if you’ve missed other court dates in the past
- whether they think you’re a danger to other people
- whether they think you’ll break the law again.
Usually you’ll be granted bail unless the prosecutors can show there is an unacceptable risk of you committing further offences or failing to appear.
In some cases, you may have to “show cause”—meaning you won’t get bail unless you can show the court your imprisonment isn’t justified.
If you’re in a “show cause position”, it’s more difficult to get bail because you have to show the court why you should get bail and not stay in jail.
There are several things that can put you in a “show cause” position, including (but not limited to):
- if you’re charged with a serious offence while you’re on bail for a serious offence
- if it’s alleged you used, or threatened to use, a weapon when committing an offence
- if you’re charged with an offence against the Bail Act, (eg if you’re charged for failing to appear in court)
- if you’re charged with an offence against control order provisions or an offence of breaching a public safety order
- if you’re charged with an offence of threatening a law enforcement officer when or because the officer is investigating the activities of a criminal organisation
- if you’re charged with choking, suffocation or strangulation in a domestic setting under the Criminal Code Act 1899 (Qld)
- if you’re charged with an offence punishable by a maximum penalty of at least 7 years imprisonment if the offence is also a domestic violence offence
- if you’re charged with particular offences against the Criminal Code Act 1899 including, but not limited to, threatening violence, stalking, deprivation of liberty if the offence is also a domestic violence offence
- if you’re charged with breaching a domestic violence order and the offence involved violence to a person or property (or threatened or attempted violence) or if you’re charged with breaching a domestic violence order and you have been convicted of other certain offences within particular periods in the past.
There are some other reasons that may also put you in a “show cause” position. Your lawyer, or a duty lawyer, will be able to tell you if you’re in this position, and how you can show the court that your imprisonment is not justified.
The court or police officer who grants you bail may include whatever special conditions they think are needed to make sure you:
- will appear in court
- won’t commit an offence while on bail
- won’t endanger the safety or welfare of others while on bail
- won’t interfere with witnesses or obstruct the course of justice (whether in relation to your own case or someone else’s).
If you’re not an Australian citizen or permanent resident, the court may order that you are detained in custody until you surrender your passport.
If you’re charged with particular offences involving violence to a person or property, and the alleged offence was committed in licensed premises or in a public place in the vicinity of licensed premises, the court may make a special bail condition restricting your attendance at licensed premises.
As part of your bail conditions, the magistrate or judge may demand a “surety”. A surety is a person who agrees to give an amount or forfeit a sum of money or property if you don’t show up at court when you’re supposed to.
A person can only provide surety for you if they:
- are 18 or older
- haven’t been convicted of an indictable offence
- aren’t insolvent
- have decision-making capacity
- aren’t an involuntary patient under the Mental Health Act 2016 who is detained or likely to be detained in an authorised mental health service
- aren’t a forensic disability client under the Forensic Disability Act 2011
- aren’t a person for whom a guardian or administrator has been appointed under the Guardianship and Administration Act 2000
- have not been, and are not likely to be charged with an offence
- have money or property equal to or more than the bail amount.
A person can only offer money or property as surety if it belongs to them.
If a person owns property, they can only provide surety for the amount they actually own. If there’s still a mortgage, the surety can only cover the amount the person has paid off.
If you fail to appear in court then the surety will have to pay the amount they put up for you.
If you’re considering providing a surety for someone, get legal advice.
Failing to appear
If you’ve missed your court date, get immediate legal advice.
You may have a good reason which can be explained to the court, but you must do this as soon as you can. Even if you were sick on the court date and you have a medical certificate, you still have to go to court as soon as you are well and explain. If you do nothing, you will be in more trouble and you could be charged with failing to appear
If you are unsure about your bail, or your bail conditions, get legal advice.
Changing bail conditions
To change your bail conditions, you’ll generally need to go back to the court which granted your bail and explain to them why the conditions need to be changed. You can do this at your next court date, or if it’s urgent, you can contact the court to see if they can move your court date forward. If you have a bail condition requiring you to live at a particular address and to, or report to a particular police station at certain times, sometimes your bail condition will allow you to seek approval from the Officer in charge of Police Prosecutions or the Office of the Director of Public Prosecutions to change your address or reporting station or times. Whether you can do this depends on exactly what your bail undertaking says.
You should get urgent legal advice if you need to change your bail conditions to make sure you're not breaching your bail. If you breach your bail conditions, you can be charged with an offence.
If you have multiple charges, you may have bail to more than one court (eg the Magistrates Court and the District Court)—any changes will have to be made to all bail undertakings.
Bail in the District and Supreme Court
If your charges are committed to the Supreme or District Court, your bail becomes a promise to appear in the District or Supreme Court, rather than the Magistrates Court.
It’s very important you continue to meet your bail conditions and let the court know if you need to change your address. All the notices from the District or Supreme Court will be sent to your address. If you don’t let the court know about these changes, you won’t receive notices to attend court and you may fail to appear. If this happens, the judge may issue a warrant for your arrest.
Do I need legal advice?
You may need legal advice if you:
- have been charged and you are going to court
- have missed your court date
- have broken a bail condition
- are unsure about being in a "show cause" position or you need help to understand what this means
- don't understand your bail conditions
- want to change your bail conditions
- think a warrant has been issued for your arrest.
How to get legal advice
We may give advice about bail.
If you’ve been charged with a serious offence or have an urgent matter, you should apply for legal aid or get a private lawyer, rather than wait for a legal advice booking.
The following organisations may be able to give you legal advice.
Sisters Inside has a Supreme Court Bail program to help women on remand in Queensland find out if they are eligible for bail, and to assist with bail applications. They may also provide advocacy and support at bail hearings.
Community legal centres may give free legal advice and information on some criminal law matters. Most centres don’t provide legal representation. Contact them to find out if they can help with your matter.
Queensland Law Society can refer you to a specialist private lawyer for advice and representation.
If you’re charged with an offence, you should ask police prosecutions for a copy of your Queensland Police form 9 (QP9)—this is a written summary of the police version of why you were charged and what happened. You should get your QP9 before getting legal advice. You can get your QP9 from the police prosecutor on your first court date (the duty lawyer may be able to help you). If you can’t collect it on your first court date you’ll need to apply to police prosecutions for a copy. You’ll need to apply in writing and show photo ID.
Who else can help?
These organisations may also be able to help you. They don’t give legal advice.
Queensland Courts has information about:
- Supreme Court
- Court of Appeal
- District Court
- Magistrates Court
- Coroners Court
- Childrens Court of Queensland
- Mental Health Court
- Land Court.