The NSW government is currently considering bolstering bail laws to afford greater protection to victims of domestic violence. The current law requires accused facing charges committed on bail to show cause, so what are show cause offences and how have the accused been able to show cause that their detention is not justified.
Show Cause Offences
According to Parramatta Criminal Lawyers | AMA Legal, when a person is denied bail by the NSW Police, the accused must be brought before a Court where the accused can make a bail or release application.
If the offence is not a show cause offence, the onus is on the Police Prosecution to convince the Court, on balance of probabilities, that there is an unacceptable risk of one or more of the following:
- The defendant failing to appear at any proceedings before the Court for the offence,
- The defendant committing a serious offence,
- The defendant endangering the safety of the community, individuals, or the victims, or
- The defendant interfering with any prosecution witnesses or evidence.
If the offence for which the accused seek bail is a show cause offence, then the onus is on the accused to show cause why his or her detention is not justified.
The most common show cause offences are if:
- The offence is punishable by imprisonment for life, or
- The offence is a serious indictable offence which is allegedly committed while the accused was already on bail or parole.
A serious indictable offence is any offence which is punishable by 5 years imprisonment or more.
How to show cause
According to Parramatta Criminal Lawyers | AMA Legal, the Bail Act 2013 (NSW) does not specify what can show cause nor is case law of significant authority as the precedential value of a single Judge of the Supreme Court of NSW has been held to be no more than the view of a single Judge as applied to the circumstances of a particular case.
The onus is on the accused to point to a single factor or a combination of factors that support the conclusion that cause has been shown but does not place an onus on the accused to show special or exceptional circumstances.
The Courts have held that the accused’s age, lack of criminal history, ties to the community and family support may amount to showing cause in some cases having regard to the circumstances of the case.
Some Specific Factors to Show Cause
Strength/ weakness of Case against the Accused
The strength or weakness of the prosecution case has been held to have a direct impact on whether cause has been shown. It should be noted that strength of the prosecution case is not determinative but a weak prosecution case which may not lead to a conviction can show cause that the accused’s detention is not justified.
Delay in proceeding being finalised: Time accused will spend in custody
The length of time an accused person has or will spend in custody is a relevant factor which may show cause. The NSW Criminal Justice System endeavours to resolve or conduct the hearing of matters in a timely manner however, the reality of vast caseloads allocated to a particular Court registry means that there may be some delays in resolving matters in some Courts.
Courts will afford delay as much weight as appropriate in considering the circumstances of the case. Where an accused is facing charges which would result in lengthy custodial sentences against a strong prosecution case, delay while a factor may not be afforded great weight.
Is a custodial sentence likely
In circumstances where a conviction will not result in a custodial sentence or a custodial sentence which will not exceed the time spend in custody, the Court can take into account in determining whether cause has been shown.
Hardship to the family of the accused
If the evidence shows that there will be hardship to the family of the accused, then the Courts can conclude that cause has been shown. It is an evaluative judgment exercised by the Court having regard to all the circumstances of the case and the accused.
Accused’s health issues
If an accused is suffering from a significant medical condition which can not be managed in custody, the Court can take it into account in the show cause determination.
According to Criminal Lawyers Parramatta, AMA Legal it is important to note that showing cause is the first step in bail applications for show cause offences. The Court still has to determine whether or not there are unacceptable risks and bail concerns before determining a bail application.
According to Criminal Defence Lawyers Parramatta, AMA Legal, the key to a strong bail application especially an application for a show cause offence is preparation and presenting the Court with material capable of showing cause relying on a sole factor or a combination of factors.
