When someone is charged with a serious criminal offence, bail is not automatically granted. Some charges fall under the category of “show cause offences”. This means that if a person wishes to make a release application (bail application), they must first demonstrate to the Court that their continued detention in custody is unjustified.
If an accused person is not able to satisfy the Court that a cause is shown, then the Court must refuse bail. The show cause requirement for serious indictable offences applies in all NSW Courts, from the Local Court to the Supreme Court.
For more detailed information about how release applications work in the Supreme Court, see our complete guide to Supreme Court bail applications in NSW.
When does ‘show cause’ apply?
There are a number of serious indictable offences for which the show cause requirement applies. There are set out in section 16B of the Bail Act 2013 and include:
- Offences that carry a maximum penalty of life imprisonment
- Supply, manufacture, import, and possession of commercial quantities of drugs
- Serious indictable firearms offences
- Serious crimes committed while the defendant is on bail for another matter
How the defence addresses the ‘show cause’
There is a two-step process in making a release application for a ‘show cause’ offence. The first step is to demonstrate cause – that is, why the continued detention of the applicant is not justified. If the applicant is successful in showing cause, the Court must then consider the ‘unacceptable risk’ test. Section 17(2) of the Bail Act sets out a number of factors that the Court must consider in determining whether there is an unacceptable risk to granting bail.
Unlike the unacceptable risk test, the requirement to show cause does not have a checklist against which submissions can be made. The way in which cause might be shown will vary from case to case and can take into account a lot of different factors – some of which may also be relevant to the unacceptable risk test.
Some examples of things that the Court might have regard to in the ‘show cause’ test include:
- The length of time the person may spend in custody waiting for trial
- That it is the person’s first time in custody
- The strength of the prosecution case
- The likely penalty that might be imposed if found guilty, that is, whether or not a term of imprisonment is likely
- Any medical conditions that may make time in custody on remand particularly difficult
The ‘unacceptable risk’ test
The Bail Act sets out four “bail concerns” that the Court must consider. They are whether the person is likely to:
- Fail to appear at court
- Commit a serious offence
- Endanger the safety of victims, individuals, or the community
- Interfere with witnesses or evidence
If the Court determines that there is no unacceptable risk, the person must be released. If there is an unacceptable risk that any one of the bail concerns may occur, bail must be refused. If there are bail concerns but the risk is not unacceptable, the Court may consider imposing bail conditions to address those concerns and then grant bail with conditions attached.
Some of those conditions may include:
- Reporting to the police
- Lodging a surety
- Abiding by a curfew or a place restriction
- Surrendering a passport and not approaching airports or other places of international departure
- Restrictions on the use of the internet or mobile phones
What happens if you cannot show cause?
If the Court is not satisfied that cause has been shown, then bail will be refused, and the person will remain in custody until their matter is resolved or until a further release application is made. A person whose bail has been refused can apply again if there are grounds for a further release application, such as new evidence, changed personal circumstances, or the person was not legally represented when the first application was made.
Why early legal advice matters
Show cause bail applications are complex and require careful preparation. An unsuccessful application can result in months spent in custody awaiting trial. Experienced legal representation ensures that all available arguments and evidence are properly presented. A skilled lawyer will know what the court needs to hear and how to present your circumstances in the most effective way possible.
If you or someone you know is charged with a show cause offence, contact Kingston Fox today. Our experienced criminal defence lawyers understand the complexities of bail law and can provide the strategic advice and representation needed to achieve the best possible outcome.
The above information is general only and does not constitute legal advice.
