How to Overcome Show Cause in Bail Applications in NSW

There are certain circumstances where an accused faces additional significant hurdles to persuade a court to grant bail after being arrested and charged by the Police. These are called show cause events. Where an accused is subject to a show cause event, the onus is on the accused person to show cause as to why their continued detention is not justified. Should a show cause requirement not be overcome by an accused person, an application for bail will be refused and the accused remanded in custody awaiting trial or sentence. Even if a show cause event is overcome, this does not necessarily mean that an accused will be granted bail. Instead, a court will also need to be satisfied that any bail concerns or unacceptable risks are capable of being addressed by the imposition of suitable bail conditions before an accused can be granted bail.

What is the Show Cause Requirement?

Section 16A(1) of the Bail Act 2013 (NSW) states that where an offence is a show cause offence, the onus is on the accused to establish why their detention is not justified. Show cause offences are set out under Section 16B of the Bail Act 2013 (NSW) and include:

  • Offences punishable by life imprisonment.
  • Child sexual assault offences.
  • Serious personal violence offences (offences punishable by imprisonment of 14 years or more) or an offence involving wounding or the infliction of grievous bodily harm if the accused has previously been convicted of a serious personal violence offence.
  • Serious indictable offences against a person or public order (being offences carrying a maximum sentence of 5 years imprisonment or more) involving the use of a firearm.
  • An indictable offence involving the unlawful possession of a pistol or prohibited firearm in a public place.
  • A serious indictable offence under the Firearms Act 1996 involving the acquisition, supply, manufacture or giving possession of a pistol, prohibited firearm or a firearm part that relates solely to a prohibited firearm.
  • A serious indictable offence against a person or public order or under the Weapons Prohibition Act 1998 (NSW) involving the use of a military style weapon.
  • An indictable offence involving the unlawful possession of a military style weapon.
  • A serious indictable offence under the Weapons Prohibition Act 1998 (NSW) that involves buying, selling or manufacturing a military-style weapon or selling on 3 or more separate occasion, any prohibited weapon.
  • Drug offences involving the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant.
  • Drug offences under Part 9.1 of the Commonwealth Criminal Code involving the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug.
  • A serious indictable offence committed by an accused person whilst on bail or whilst on parole.
  • An indictable offence, or an offence of failing to comply with a supervision order, committed by an accused while subject to a supervision order.
  • A serious indictable offence committed while an accused is the subject of an arrest warrant.

Does the Show Cause Requirement apply to Juveniles?

Under section 16A(3) of the Bail Act 2013 (NSW) the show cause requirement does not apply to accused persons who were under the age of 18 years at the time of the alleged offence. A court will still need to determine whether any bail concerns can be addressed by the imposition of appropriate bail conditions before a person who was aged under the age of 18 years at the time of the offence can be granted bail.

How can Show Cause be Overcome?

The Bail Act 2013 (NSW) does not contain a definition or list of factors which an accused needs to establish to show cause. A single, or combination of several factors may be sufficient to satisfy a court that cause has been shown. Some of the common factors are:

  • A weak prosecution case. A case which on its face appears to be a weak case against an accused can satisfy a court that an accused’s detention is not justified on the basis that the accused may not be convicted of the offence.
  • The Need to Prepare a Defence. In certain circumstances, where it can be shown that an accused remaining in custody will result in significant difficulties in the preparation of a defence.
  • Significant health issues of an accused. An accused may overcome show cause if an accused can provide evidence of a significant or life-threatening medical issue which is unable to be appropriately medically treated in custody or whether such health issues will make custody more onerous for an accused person.
  • The Availability of a Rehabilitation Program. Being assessed and accepted into a suitable residential rehabilitation program can overcome the show cause requirement, particularly if an accused can demonstrate a willingness to participate in rehabilitation.
  • Whether a sentence of imprisonment is a likely outcome. In some cases, it may be arguable that based on the nature and circumstances of an offence, that an accused, even if convicted may not be likely to face a sentence of imprisonment.
  • Undue delay in proceedings. A significant delay in the progression of an accused’s proceedings may give rise to cause being shown as to why an accused’s continuing detention is not justified. Submissions as to undue delay can be especially significant where an accused is likely to spend more time in custody awaiting trial or sentence than what would ordinarily be expected to be the case on sentence having regard to the nature of the offence before the court had the accused either pleaded guilty or been found guilty of the offence.
  • Family vulnerability or hardship. Presenting compelling evidence of significant family vulnerability or hardship to others should an accused be remanded in custody may be sufficient to overcome the show cause requirement.
  • Overcoming the cycle of deprivation and disadvantage in Indigenous communities. A lengthy period on remand and separation from a child in the context of disadvantage and deprivation within an Indigenous community has been considered as a significant factor overcoming show cause.

Practical Implications

The intention of the show cause provisions in the Bail Act 2013 (NSW) and the cases which have been decided by appellate courts demonstrate that the show cause requirement establishes a significant hurdle to an applicant seeking bail when the show cause provisions of the Act are applied. Given the prospect of an accused facing many months or even years in prison refused bail awaiting their court date, it is important that the circumstances and evidence of each case be carefully examined by an experienced criminal defence lawyer to determine the likely prospects of success of any bail application and the best approaches to be undertaken to maximise the chances of an accused being granted bail. It is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been charged with an offence and refused bail by a court.

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The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.

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