Breach of Bail
Lawyer Cairns
Being charged with breach of bail creates an immediate crisis — you are arrested, held in custody, and the onus reverses so that you must convince the court to release you. A breach of bail is also a separate criminal offence that compounds whatever charge you were already facing. Whether the breach was failing to appear, breaking a curfew, contacting a person you were ordered not to contact, or entering a place you were excluded from, the response needs to be immediate and prepared. An unprepared bail application after a breach is almost certain to fail.
The Offences — Bail Act 1980 (Qld)
Breach of bail involves two main offences under the Bail Act 1980 (Qld): Failure to appear — Section 33, Bail Act If you are granted bail and fail to appear in court when required, you commit an offence under section 33 of the Bail Act 1980 . This is a standalone criminal offence carrying its own penalty. A warrant will be issued for your arrest, and you will be taken into custody. A defence is available if you can show a reasonable excuse for the failure to appear — for example, a genuine medical emergency, being unaware of the court date, or a communication error about the listing. But a reasonable excuse must be supported by evidence, not just asserted. Breach of bail condition — Section 29, Bail Act If you are released on bail subject to conditions and breach any of those conditions, you commit an offence under section 29 of the Bail Act 1980 . Common conditions that are breached include: Curfew conditions — not being at your approved residence during specified hours No-contact conditions — contacting the complainant or a witness (including by text, social media, or through a third party) Place restrictions — entering a prohibited area (such as the complainant's residence, workplace, or suburb) Reporting conditions — failing to report to a police station as required Residential conditions — not living at the approved address Substance conditions — consuming alcohol or drugs where prohibited A breach of a bail condition results in arrest and a return to custody. You will not be released until a fresh bail application is heard and determined by the court.
Show Cause — The Reversed Onus
This is the most important practical consequence of a breach of bail. Under section 16 of the Bail Act 1980 , a person who has breached a bail condition or failed to appear is required to show cause why their continued detention is not justified. Normally, bail is the starting position — the prosecution must convince the court there is a reason to refuse bail. Show cause reverses this entirely. The onus is on you to demonstrate to the court that you should be released despite having breached your bail. To meet the show cause requirement, you need: A sworn affidavit — explaining the circumstances of the breach, acknowledging what happened, setting out your personal circumstances, ties to the community, employment, family responsibilities, and why the breach will not be repeated Written submissions — addressing the statutory considerations, the prosecution's specific objections, and the proposed conditions Proposed conditions — often stricter than the original conditions. The court needs to see that the conditions have been strengthened to address the specific failure. If you breached a curfew, the proposed conditions might include GPS monitoring. If you breached a no-contact order, the proposed conditions might include surrendering your phone at night. Walking into a show cause application without this material is effectively consenting to remain in custody. The court will treat silence as a failure to show cause, and bail will be refused.
Common Breach Scenarios
Contacting the complainant The most common breach in domestic violence and assault matters. No-contact conditions are imposed to protect complainants and witnesses. Any contact — a phone call, a text message, a message through a friend, liking a social media post, being in the same location — can constitute a breach. In DV matters, a breach of a no-contact bail condition often results in an additional contravention of a DVO charge as well. Missing a court date Forgetting or confusing a court date is one of the most common reasons for failure to appear. It is also one of the most preventable. Once a warrant is issued, you will be arrested whenever police next encounter you — at a traffic stop, a random check, or when your name comes up in any police interaction. The longer the warrant remains outstanding, the worse the bail application becomes. Breaking a curfew Curfew conditions require you to be at your approved address between specified hours (typically 7pm to 6am or similar). Police conduct curfew checks — they attend your address and confirm you are there. If you are not present during a check, the breach is recorded and an arrest follows. Entering a prohibited area Where bail conditions exclude you from a specific area — a suburb, a street, a business premises — being found in that area constitutes a breach. GPS monitoring conditions make this type of breach particularly easy for police to detect. Using substances Some bail conditions prohibit the consumption of alcohol or drugs. A positive breath test, drug test, or observable intoxication during a curfew check can constitute a breach.
The Impact on Your Underlying Charge
A breach of bail is not just a standalone offence — it has significant flow-on effects for the charge you were originally on bail for: The prosecution will use it at sentencing. When the underlying charge comes before the court for sentencing, the prosecution will point to the breach as evidence that you failed to comply with court orders. This weakens the mitigating case — particularly any argument that you are a responsible person who respects the court's authority and can be trusted with a non-custodial sentence. It makes future bail harder. If your bail is revoked after a breach, any subsequent bail application starts from a worse position. The court has evidence that you did not comply with conditions the first time. It can affect the sentence on the underlying charge. While the breach of bail is sentenced as a separate offence, the fact of the breach provides context for the underlying charge. A person who breached bail conditions while awaiting sentence for assault, for example, is in a weaker position at sentencing than a person who complied with all conditions throughout. It adds a separate criminal charge. The breach itself is a criminal offence. You now have two matters before the court instead of one. Multiple charges from separate incidents compound the sentencing exposure. The strategic response to a breach is to address it honestly, explain the circumstances, demonstrate that the breach was an aberration rather than a pattern, and strengthen the conditions so the court has confidence it will not happen again.
What Changes the Bail Outcome After a Breach
The nature of the breach. A missed court date due to a genuine misunderstanding is treated differently from a deliberate contact with the complainant in a DV matter. The more serious the breach, the harder the bail application. The explanation. A credible, supported explanation — a medical emergency, a genuine error about the court date, a family crisis — helps. An explanation that the court cannot believe, or no explanation at all, is fatal to the application. The underlying charge. The seriousness of the charge you were originally on bail for affects the bail assessment after a breach. A breach on a minor summary charge is different from a breach on a District Court matter involving violence. Your history of compliance. If you complied with all conditions for months before a single breach, that pattern of compliance supports the application. If this is the second or third breach, the court has little reason to believe conditions will be followed. Strengthened conditions. Proposing stricter conditions — additional reporting, GPS monitoring, increased surety, residential rehabilitation — demonstrates that you take the breach seriously and have addressed the specific failure. The quality of the application. A sworn affidavit, written submissions, and proposed conditions that are clearly drafted and address the prosecution's objections make the difference. Show cause is not met by standing up in court and asking for another chance.
Frequently Asked Questions
What happens if I breach my bail conditions?
You will be arrested and returned to custody. A breach of bail is a separate criminal offence under the Bail Act 1980 . You will need a fresh bail application to be released, and the show cause requirement applies — meaning the onus is on you to demonstrate why you should not remain in custody.
What is show cause?
Show cause is the requirement that the accused demonstrate to the court why their continued detention is not justified. Normally, the prosecution must argue against bail. Show cause reverses this — you must convince the court to release you. It is triggered by breach of bail, as well as by certain serious charges (weapons offences, offences committed while on bail for another indictable offence, and others).
Can I get bail after breaching my conditions?
Yes — a breach of bail does not automatically mean bail is revoked permanently. A well-prepared show cause application, with a sworn affidavit explaining the circumstances, proposed stricter conditions, and written submissions, can succeed. The key is preparation — an unprepared application after a breach will almost certainly fail.
Does a breach of bail affect my sentence on the underlying charge?
Yes. The prosecution will refer to the breach at sentencing for the underlying charge as evidence that you failed to comply with court orders. It weakens mitigating arguments about compliance and reliability. The breach itself is also sentenced as a separate offence.
What if I missed court because I didn't know the date?
Failure to appear under s 33 of the Bail Act 1980 has a defence of reasonable excuse. A genuine lack of knowledge about the court date — supported by evidence — may constitute a reasonable excuse. But you need to hand yourself in promptly once you become aware. A warrant outstanding for weeks or months undermines any reasonable excuse argument.