Bail and Show Cause Offences

A ‘show cause’ offence is an offence for which the accused must ‘show cause’ why their continuing detention is not justified. This means that instead of the prosecution bearing the onus of showing that the person poses an unacceptable risk if released on bail, the defence must show cause for why the person should be released. ‘Show cause’ is a relatively new concept in New South Wales, which was introduced in 2015.

Who does the show cause requirement apply to?

The show cause requirement only applies to adults. Juveniles who are charged with serious offences do not have to show cause why they should be granted bail.

How does the requirement work?

If an adult is charged with a show cause offence and is applying for bail, there is a two-step process for bail to be determined. The first step is to show cause why their detention is not justified. If the applicant is successful in showing why their detention is not justified, the court must then assess whether there are bail concerns and determine whether there is an unacceptable risk, or whether appropriate bail conditions can be imposed to mitigate the risk.

How to show cause

Unlike the assessment of unacceptable risk, where the Act provides a list of factors to consider, no guidance is given to courts as to how to assess whether someone has ‘shown cause’. This is determined on a case by case basis, taking into account any number of relevant considerations.

The Court of Criminal Appeal has stated that cause could be shown by a single powerful factor or a combination of factors. There will often be an overlap in the factors relevant to the assessment of an unacceptable risk and the factors relevant in assessing whether cause is shown.

Examples of matters that the court could consider in determining whether cause has been shown as to why a person should not be detained are:

• That this is their first time in custody.
• Their need to be at liberty to prepare their defence, maintain employment or provide and care for family;
• That custody would be harder for them than for the average person for medical reasons;
• The length of time they are likely to spend in custody pending trial.
• The strength of the prosecution case.
• The likely penalty if they were to be found guilty on the charges.

These last three points often intersect with one another. The length of time a person will spend awaiting trial is especially relevant if the court is of the view that:

• The prosecution case is not a strong one;
• If the person were to be found guilty they would not necessarily be sentenced to imprisonment; or
• If the person was to be found guilty, the time you spend in custody awaiting trial would exceed the sentence imposed.

Which offences are show cause offences?

The offences that attract the show cause requirement are listed in section 16B of the Bail Act 2013.

They are:

• Any offence that carries life imprisonment.
• Any serious indictable offence involving sexual intercourse with a person under the age of 16;
• Any serious personal violence offence if the accused has already been convicted of a serious personal violence offence.
• Any serious indictable offence involving a weapon.
• Any offence that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or plant.
• Any offence that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug.
• Any serious indictable offence committed by an accused who is on bail or parole.
• Any indictable offence committed while accused is subject to a supervision order, or the offence of failing to comply with a supervision order.
• Attempting to commit, assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit any of the above offences.

If you require legal advice or representation in relating to applying for bail or in any other legal matter, please contact Armstrong Legal.