Legal studies-
Term 1
Name: Andriea Sara Abraham
Teacher’s name: Mrs.Vallis
Table of Contents
1.0 Introduction.......................................................................................................................................2
2.0 Nature and scope..............................................................................................................................2
2.1 Bail in Queensland.........................................................................................................................2
2.2 Bail laws across different jurisdictions...........................................................................................2
3.0 Area of Law........................................................................................................................................3
3.1 Relevant legislation (Acts & Bills)...................................................................................................3
3.2 Principles and procedures.............................................................................................................3
3.2.1 Watch-house Bail........................................................................................................................3
3.2.2 Bail granted by courts.................................................................................................................3
3.3 Current Law & its effects on stakeholders.....................................................................................3
3.4 Need for reform.............................................................................................................................4
4.0 Viewpoints.........................................................................................................................................4
4.1 Viewpoint of stakeholder 1- Accused............................................................................................4
Case Law: MBB V Director of public prosecutions (Supreme Court Library Queensland , 2000).........4
4.2 Viewpoint of stakeholder 2 – Judicial officer.................................................................................4
Case Law: The Queen V Tighe Raymond Wren. (Supreme Court Library Queensland , 1999).............4
5.0 Alternatives.......................................................................................................................................5
6.0 Recommendations.............................................................................................................................5
References...................................................................................................................................................6
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1.0 Introduction
Bail plays an important role in the criminal justice system. Decisions regarding it, is a crucial subject
because of its nature that is inherently intertwined with a defendant’s right to innocence until proven
guilty. The Queensland bail laws aim for a balanced system that protects the society, an individual’s right
to liberty and ensures justice is reinforced.[CITATION Kel00 \l 1033 ] But many members of society
doubt the effectiveness of the law and argue that Queensland has failed to provide just and equitable
outcomes and made bail readily available for the accused, due to the lack of specificity of the duties of
law enforcement, allowing offenders to escape criminal responsibility. This inquiry report aims to
analyse the issues that arise from bail laws, specifically those with granting or refusal of bail to the
accused and the responsibilities of police/judicial officers to appropriately enforce the law, examine
viewpoints of previously mentioned stakeholders and recommend some legal alternatives.
2.0 Nature and scope
2.1 Bail in Queensland
Bail, a matter that pertains to criminal law, sentencing and punishment, is a procedure that allows a
person who is arrested to be released from custody until he/she stands trial.[ CITATION And19 \l 1033 ].
In Queensland, matters relating to this criminal subject are dealt with The Bail Act 1980 (Qld). The Act is
a state legislation that governs Queensland and is applicable to multiple courts. The magistrate court
(original court) and district court can grant bail whereas the supreme court (court of appeal) can
enlarge, vary or revoke granted bail. The Act aims to provide a detailed outline of the criteria,
conditions and procedure of bail but lacks description regarding the principle or standard by which the
grant of bail may be judged or decided. This leads to an unjust and unfair judgement made by the
police/court regarding accused. This includes an unjustified release of potential criminals or detention of
an innocent accused.
2.2 Bail laws across different jurisdictions
When compared to other jurisdictions, the lack of specificity of the Act is highlighted. States like Victoria
and NSW provide additional criteria for crimes involving juveniles and domestic violence respectively.
On the contrary Queensland’s bail laws drastically differs in comparison. When considering the
probability of a defendant appearing for trial, the Queensland courts considers criteria listed in section
16 and external relevant matters whereas the ACT[ CITATION Law194 \l 1033 ] and NT [ CITATION
Law202 \l 1033 ] Acts restrict the listed matters as the only criteria taken into consideration, thereby,
narrowing the scope of the court’s inspection.
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3.0 Area of Law
3.1 Relevant legislation (Acts & Bills)
First and foremost, inspecting The Bail Act 1980 (Qld) plays a significant role in further bettering the bail
laws and evaluating the possible legal recommendations. The Act outlines the criteria and conditions for
bail application, grant and refusal in Queensland. In the following Act, sections 7 and 8 summarizes the
powers of police and courts concerning bail respectively and play prime importance in this inquiry
report. Consequently, The Police powers and responsibilities Act 2000 (Qld)[ CITATION Law20 \l 1033 ]
that provides briefs on the nature and extent of the powers and responsibilities of police officers and
The Penalties and sentencing Act 1992 [ CITATION Law191 \l 1033 ] that define the nature of offences
(minor or indictable) are used extensively in this report. The Queensland Criminal Code section 349 and
592 that discuss the subjects of rape and adjournment of trial respectively are referenced through the
report.
3.2 Principles and procedures
3.2.1 Watch-house Bail
A watch house can be defined as an establishment where suspects of a crime are held under arrest.
According to The Bail Act 1980, the police of such establishments have the authority to grant bail for
serious offences like manslaughter, rape and armed robbery. These indictable offences have a maximum
term of punishment of life imprisonment. The police in charge of station/establishment or the watch
house manager are permitted to make this decision. The only condition concerning the decision is if the
prescribed officer is ‘satisfied’. Additionally, they are permitted to refuse bail but must record the
reason. They are permitted to grant bail to a defendant where it is uncommon for them to summon the
accused to court within 24 hours of being taken into custody. On the other hand, when practicable, the
defendant must be brought to court within 24 hours of being in custody.
3.2.2 Bail granted by courts
A defendant that has been refused watch house bail, may apply to a court for bail. Queensland courts
have power to grant, enlarge, vary or revoke bail. to the defendant who has been charged, but not
convicted of the particular offence. Section 8 lists the conditions to grant bail. These include accused
awaiting criminal proceeding, an appeal to the district court under The Justice Act 1886 (Qld) s 222
[ CITATION Law203 \l 1033 ] (appeal to a single judge) and a court appointed remand. Although, few
offences like treason, murder, piracy or menaces upon government agencies can only be granted bail by
the Judges of the supreme court.
Both the court and police are sanctioned to refuse bail if they believe that granting bail would lead to an
unacceptable risk of the defendant failing to appear for trial, surrender into custody or endanger the
safety and welfare of community or pose as a risk to themselves. (Section 16).
3.3 Current Law & its effects on stakeholders
In order to propose changes regarding the current law, its important elements and factors that provides.
The four principles considered to provide its structure are maintenance of the presumption of
innocence, protection of the public from harmful behavior, protection of people from unlawful
deprivation of liberty and effective administration of the criminal justice system.[ CITATION Kel00 \l
1033 ] This clearly demonstrates the intention of the law. The last two principles are of utmost
importance in this report as they are relevant to the stakeholder impacts studied in the report. But after
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analyzing the nature of scope and area of law it can be understood the laws intentions are not met.
When applying the law to stakeholders, it does not perform its aim to ensure liberty and effective
administration of the criminal system, due to the law’s lack of specificity in criteria’s and conditions for
bail. This can lead to the unfair detainment or release of accused and the lack of confidence of society in
the law enforcement. Regarding stakeholder relationship, the law identifies bail as a ‘duty’ on members
of the police to grant bail. This implies that the grant of bail is not recognized as an ‘entitlement’ or
‘right to bail’ even regarding minor offences. The law also lacks an in-depth analysis on behalf of the
judicial officer’s investigation of grant/refusal of bail. The often fairly shallow, material or information
available to assist judge/police to make the bail decision may act as a hindrance to justice.
3.4 Need for reform
The legal outcomes for both stakeholders are unjust and inequitable due to the law’s negative impacts
on them. As a result of the law the accused often are left to deal with a loss of liberty whereas the
judicial officers must deal with obstacles to providing justice to the society.
4.0 Viewpoints
4.1 Viewpoint of stakeholder 1- Accused
Case Law: MBB V Director of public prosecutions [ CITATION Sup00 \l 1033 ]
The following case law discusses about the accused, charged with four counts of rape between 7 th July
2000 and 5th August 2000. The police officer in charge objected to bail during the first mention in the
magistrate’s court. This follows an additional refusal of bail in the supreme court taking in consideration
the unacceptable risk that a release on bail would lead to the committal of another offence. The charges
are, of course, most serious but did not involve weapons and fortunately the complainant was not
seriously physically injured. But it is to be noted that the appellant's absence of convictions since his
release from prison in 1993 strongly suggests that he is able to resist offending. Also, he is in
employment and has met his prior grants of bail.
But it can be agreed that it is considerably difficult to accurately predict whether someone will, if
released on bail, commit an offence. As Thomas JA noted in Williamson v DPP [1999] QCA 356; Appeal
No 7123 of 4 1999, 27 August 1999: "No grant of bail is risk free. A grant of bail however is an important
process in civilized societies which reject any general right of the Executive to imprison a citizen upon
mere allegation or without trial. It is a necessary part of such a system that some risks have to be taken
in order to protect citizens in those respects.”
This is a clear example of a situation where the Judge erred in placing too much emphasis on the
appellant's prior convictions in order to reach an ‘appropriate’ conclusion. The Bail Act 1980 (Qld) allows
judges/ police to consider condition listed in section 16 and ‘external factors. The external factors
considered may vary. This provides an unfair advantage/disadvantage to various accused. Therefore, the
law must either consider only analyzing factors in section 16 or provide a detailed outline of external
factors. This would ensure more appropriate judgments to be made.
4.2 Viewpoint of stakeholder 2 – Judicial officer
Case Law: The Queen V Tighe Raymond Wren.[ CITATION Sup99 \l 1033 ]
The following case law specifies how the court dismissed an appeal "against dismissal of application for
bail". Bail had been refused initially by Judge Howell DCJ and then by Judge White J. The appellant
initially plead guilty to two counts before Judge Howell DCJ. However, his Honor expressed the view
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that a further report from a psychiatrist was desirable therefore the trial was adjourned and remanded
the appellant in custody. His Honor refused an application for bail. The appellant then applied to White
J under s19 of the Bail Act 1980 (Qld). Her Honor held that she had no jurisdiction to entertain the
application and accordingly dismissed it. The Bail Act Amendment Act 1982 was later referred and the
last paragraph of s10 manifests the intention of entrusting to a trial judge the question of bail until such
time as an accused is discharged or sentenced. It precludes both appeals and further applications for
bail.
This can be regarded as a limitation on behalf of the judicial officers to exercise powers and grant bails
regarding cases linked with the court of appeal. The bail Act 1980 (Qld) therefore requires considering
the replacement of sections that act as a barrier to law enforcement to make appropriate decisions.
5.0 Alternatives
The bail laws in all other Australian jurisdictions also sets out criteria to guide the bail decisions of the
authorized police and judicial officers. However, some jurisdictions provide for some additional criteria
or limit provided conditions to be the only one considered. Such a layout of conditions can be seen in
the ACT an NT Bail Acts. Implementation of such laws would provide a more detailed outline of the
conditions regarded to grant/refuse bail, which in turn would lead to a more effective administration of
law.
According to the NSW Bail laws, there is a presumption in favour except cases with respect to certain
drug offences, domestic violence offence and violent offences under the Crime Act. The NT Bail laws also
provide a ‘right to bail’ except in cases with involvement of treason, drug offences, murder or offences
with a violent or sexual nature. Enforcing laws with such an outline may allow people accused of minor
offences escape bail when compared to those who commit serious offences
6.0 Recommendations
The adoption of criteria outlined in the ACT and NT bail legislation are recommended as this would limit
the conditions to the granting/ refusing bail, as a result making such decisions more efficient and
unbiased. The adoption of the NSW and NT bail legislation conditions that specify considering the
possibility of the accused committing an offence of rather serious nature than a regular minor offence
would lead to keeping in mind the best interests of the accused.
The abolition of police or watch house officer powers to grant bail for serious offences is also
recommended. Currently the Bail Act 1980 (Qld) allows police officials to grant bail for serious indictable
offences such as murder, rape or manslaughter. These offences have a maximum sentencing of life
imprisonment. Statistics from the Criminal Justice system show that 66% of police officers are senior
constable rank and below. [ CITATION Que93 \l 1033 ] Various Queensland police stations or watch
houses are led by junior officers. This may cause unfair judgments to be made when compared to those
made by senior officers with added training and experience. Therefore, either the law should be
amended to provide this power to senior officers or all members of police services must be provided
with appropriate training in order to make suitable judgments or decisions regarding the granting or
refusal of bail.
References
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Anderson Fredericks Turner. (2019). Retrieved from https://www.aft.legal/resources/publications/bail-
applications/
Collins, K.-A. (2000). Queensland Bail Laws. Retrieved from Queensland Parlliment Library :
https://www.parliament.qld.gov.au/view/publications/documents/research/researchBulletins/2
000/rb0100kc.pdf
Lawlex. (2019, June 5). Bail Act 1977 No. 9008 (VIC). Retrieved from
https://lawlex.com.au/Legislation/CDHP/235
Lawlex. (2019, April 11). Bail Act 1980 No. 35 (QLD). Retrieved from Lawlex:
https://lawlex.com.au/Legislation/CDHP/12787
Lawlex. (2019, December 3). Bail Act 1992 (ACT). Retrieved from
https://lawlex.com.au/Legislation/CDHP/33990
Lawlex. (2019, May 31). Bail Act 2013 No. 26 (NSW). Retrieved from
https://lawlex.com.au/Legislation/CDHP/140241
Lawlex. (2019, April 11). Penalties and Sentences Act 1992 No. 48 (QLD). Retrieved from
https://lawlex.com.au/Legislation/CDHP/12546
Lawlex. (2020, March 2). Bail Act 1982 (NT). Retrieved from
https://lawlex.com.au/Legislation/CDHP/26805
Lawlex. (2020, January 1). Bail Act 1982 No. 86 (WA). Retrieved from
https://lawlex.com.au/Legislation/CDHP/14971
Lawlex. (2020, February 13). Justice Act 1886 (Qld). Retrieved from
https://lawlex.com.au/Legislation/CDHP/12685
Lawlex. (2020, February 26). Police Powers and Responsibilities Act 2000 No. 5 (QLD). Retrieved from
https://lawlex.com.au/Legislation/CDHP/24304
Queensland Law Reform Commision. (1993, June). Bail Act 1980 (Qld) Report No. 43. Retrieved from
file:///C:/Users/tom/Desktop/Andriea/Legal%20studies/Bail%20issues%202.pdf
Supreme Court Library Queensland . (1999, March 26). R v Wren [1999]. Retrieved from
https://www.sclqld.org.au/caselaw/QCA/1999/82
Supreme Court Library Queensland . (2000, December 14). MBB v Director of Public Prosecutions (Qld).
Retrieved from https://www.sclqld.org.au/caselaw/QCA/2000/515
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