A high profile bar for bail?

Writing from bitter personal experience after spending 1,400 days on remand, STEVEN FENNELL explains why he should have received bail, especially given the High Court’s indignant, virtually instant quashing of his conviction. Perhaps he wasn’t sufficiently high profile – like Ben Roberts-Smith? 

In the world of high-stakes criminal law, the mantra “bail is not punitive” is frequently recited. It upholds the presumption of innocence: a person should not be punished by pre-trial detention before guilt is proven beyond reasonable doubt. Yet, as someone who endured nearly four years on remand for a charge I was ultimately acquitted of, I can attest from lived experience that the “barometer of bail” swings dramatically depending on who stands in the dock.

The recent granting of bail to former SAS soldier Ben Roberts-Smith in April 2026 highlights this disparity. Charged with five counts of murder relating to alleged war crimes in Afghanistan, he was released after just a few days in custody. The judge cited “exceptional circumstances” due to the extraordinary complexity of national security information (NSI) evidence and the likelihood of a trial taking years. Strict conditions were imposed: a $250,000 surety, reporting to police three times a week, use of only one monitored phone and computer, travel restrictions, and prohibitions on interfering with witnesses or evidence.¹

This stands in sharp contrast to my own situation. Charged in November 2012 with the murder of 85-year-old Liselotte Watson on Macleay Island, Queensland, I spent approximately 1,400 days (nearly four years) in high-security remand before my 2016 trial, followed by further time until the High Court quashed my conviction in 2019. My case rested on a weak chain of circumstantial evidence that the High Court later described as “extremely weak” and “glaringly improbable”.³

The Illusion of Bail for Serious Offences

Under the Bail Act 1980 (Qld), there is generally a presumption in favour of bail. However, for serious offences like murder, section 16(3) triggers a “show cause” provision. The onus reverses: the accused must demonstrate that detention is not justified and that they pose no “unacceptable risk” of failing to appear, reoffending, or interfering with the justice process. Relevant factors include the strength of the prosecution case, community ties, criminal history, sureties, and proposed conditions.²

In practice, for murder charges, bail is an illusion for most ordinary accused. Courts demand “exceptional circumstances”, and these are rarely found unless the applicant has significant resources, high-profile representation, or unusual case features. High-profile cases often succeed where others fail.

This two-tiered system wastes court time, Legal Aid funds, and taxpayer resources by dangling a right that is largely unattainable for the average person. The same can be said for the theoretical “right” to elect a judge-only trial is  available on paper but rarely granted, even with strong justifications.

I am not calling for the complete removal of bail in serious cases. Pre-trial detention serves a legitimate purpose in genuine high-risk scenarios. However, the current framework fosters false hope, drains public resources, and inflicts unnecessary punishment on those presumed innocent. A more transparent, streamlined approach focused on objective risk assessment would better serve justice.

My Case: Substantial Sureties and Highly Restrictive Conditions Ignored

I was not a flight risk. I had deep roots on Macleay Island  a family home, a local business, and strong community ties. Two family members were prepared to offer over $300,000 each in mortgage equity as surety, totalling more than $600,000. I willingly proposed the most restrictive conditions imaginable: GPS ankle monitoring, strict curfews, daily reporting to police on the island, and full surrender of my passport. These measures would have significantly mitigated any concerns about flight or reoffending under section 16 of the Bail Act.²

Despite this, I remained in custody for 1,400 days on remand. The primary barrier was not the law or evidence, but my Legal Aid representation’s lack of genuine intent to pursue bail.

I completed extensive legwork myself. I compiled documentation on my jurisdictional ties, prepared detailed outlines of proposed conditions, and identified suitable sureties. I provided clear instructions, including contacts for witnesses who could highlight weaknesses in the police case. My lawyer understood the law but treated the bail process as mere busywork that was busywork for me to stop me giving him instructions on the trial tactics.  He never submitted a serious funding application for a full bail hearing. Later instructions to interview key witnesses were also ignored.

This was not simple oversight or lethargy  it reflected a broader systemic issue. Some practitioners avoid applications that risk denial, viewing them as potential marks against their professional record.⁵

Why I Should Have Received Bail: Comparisons to Other Cases

My case was exceptionally weak, even among circumstantial prosecutions. In Fennell v The Queen [2019] HCA 37, the High Court unanimously quashed my conviction in record time and entered an acquittal. It described the Crown case on opportunity and motive as “extremely weak”, noted that I was in no different position from many other island residents, and found the key hammer identification evidence “glaringly improbable”. Paragraphs 82–85 emphasise that no reasonable jury could convict on such “palpably weak” evidence.³

Stronger circumstantial cases involving ordinary accused routinely result in bail denials or no serious applications. In R v Fennell [2017] QCA 156, the Court of Appeal recorded the absence of DNA or fingerprint evidence linking me to the crime, alongside inconsistencies in witness testimony and issues with the prosecution theory.⁴

High-profile exceptions like Roberts-Smith where complexity and resources created “exceptional circumstances” prove the bar can shift. My four-year wait in a chronically backlogged system was equally extreme, yet no equivalent leniency applied.

A competent early bail application, emphasising the incomplete and contradictory evidence, the biased witness, my strong ties, substantial surety, and strict proposed conditions, had a strong prospect of success. Instead, the absence of aggressive advocacy sealed the outcome.

The High Court’s Verdict and Irreparable Harm

The High Court’s 2019 judgment exposed the prosecution’s foundational failures: prejudicial reliance on my history, an unreliable witness, and an overall unsafe case. I ultimately spent over 2,373 days in custody before full exoneration. Those lost years  time with family, business, and freedom cannot be restored.

This selective application of justice undermines public confidence. The presumption of innocence becomes hollow when bail turns on the vigour of legal representation, public profile, or connections rather than objective assessment of risk.

Time for Honest Reform

Bail for serious offences should not persist as an unattainable procedural promise. Either criteria must be applied consistently and transparently,  including for those with substantial sureties and restrictive conditions or the process should be streamlined to avoid wasting resources on illusory rights. Exceptional circumstances must not be reserved for the elite.

My lived experience reveals the human toll. The scales of justice should balance on evidence and risk, not on the loudest voice or deepest pockets. Until meaningful reform occurs, they rarely do.

Sources & Footnotes

¹ Bail decision concerning Ben Roberts-Smith, Supreme Court (April 2026).
² Bail Act 1980 (Qld) s 16 — show cause provisions and unacceptable risk framework.
³ Fennell v The Queen [2019] HCA 37 — esp. [82–85].
⁴ R v Fennell [2017] QCA 156 — evidentiary record as presented on appeal.
⁵ Based on practices observed in Legal Aid Queensland proceedings.