Representing Mentally Ill and Intellectually Disabled Clients in QLD

14.0 - Bail Applications

Section 11A of the Bail Act 1980 (Qld) allows a police officer or Court to release an intellectually impaired person without bail by releasing him or her into the care of another person who ordinarily cares for the person; or to a person with whom the person resides; or by permitting the person to go at large upon condition that the person will surrender at the time and place stated in a notice under section 11B.

Lawyers must be aware of the assistance that advocates and social workers can contribute to a client's bail application under the Bail Act 1980 (Qld). A defendant may be unlikely to be granted bail where there are insufficient social support services in place. Moreover, if the Court initially refuses bail they are likely to be refused again at a subsequent application in the absence of such social supports.

Before a Court or police officer can release a person on bail, they must consider whether there is an 'unacceptable risk' as set out in section 16(1). Thus, a Court must refuse bail where satisfied there is an unacceptable risk, that if released:

  • the defendant would fail to appear at the next Court date and/or surrender into custody; or
  • the defendant would either commit an offence; or
  • the defendant would endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged; or
  • the defendant would endanger the safety or welfare of another; or
  • the defendant would interfere with a witness; or
  • the defendant would otherwise obstruct the course of justice whether for the defendant or anyone else; or
  • that the defendant should remain in custody for the defendant's own protection.

Section 16(2) sets out the matters the police officer or Court must consider when determining whether there is an unacceptable risk, and, lawyers should concentrate on the items in this section. 

In assessing whether there is an unacceptable risk, the Court or police officer, shall have regard to:

  • the nature and seriousness of the offence; and
  • the character, antecedents, associations, home environment, employment and background of the defendant; and
  • the history of any previous grants of bail to the defendant; and
  • the strength of the evidence against the defendant.

Section 19B allows the review of bail decisions and section 30 allows applications to vary or revoke bail.