Will I get Bail? The Concept of 'Show Cause'

12 DEC 2019


What is bail?

In New South Wales, the Bail Act 2013, defines bail as, the authority to be at liberty for an offence, pending a trial or hearing.

If you are charged with a criminal offence, the police can choose to arrest you and take you to the police station or they can issue you with a ‘Court Attendance Notice’. If the police arrest you and take you to the police station for charging, they can either let you go or keep you in custody.

If the police choose to let you go, they will release you on ‘bail’. Bail means being allowed to go free in relation to the offence you are charged with. It is always a requirement of bail that you attend Court on your next Court date. Other bail conditions may be imposed too. When you get bail you have to sign a form acknowledging your bail and its conditions, before you will be released.

If the police refuse to grant you bail, you can make an application to the Local Court for a grant of bail. This is known as a ‘release application’ and it is advisable that you have a lawyer for this process.

Will I get bail?

As a general rule, the more the serious the allegation made against you, the less likely it is that bail will be granted. There are, however, a number of important factors the Court must take into account when determining a release application.

What is show cause?

If you are charged with a serious offence including ones involving sex, violence or firearms, you will have to show cause. In the same way, if you are already on bail or parole and you are charged with a fresh offence, you will have to show cause. If you can’t show cause you will be refused bail.

The term ‘show cause’ is not defined within the Bail Act 2013. If you are required to ‘show cause’ you will need to present evidence to the Court as to why your detention is not justified. Simply put, it is an additional hurdle you must jump in order to be granted bail. The onus is on an accused person to prove why their detention is not justified.

The Court can take into account a combination of factors when considering whether an accused person has ‘shown cause’.

What if I can show cause?

If you are able to ‘show cause’ the Court must then consider whether there are an unacceptable risks. The Court must ask itself the following questions:

Will you attend Court when you have to?

Will you commit serious offences?

Will you endanger any person or the community?

Will you interfere with witnesses or evidence?

If the Court is concerned about any of these questions, they can impose ‘bail conditions’ to mitigate any unacceptable risks.

What type of conditions can be imposed?

The Court can impose conduct requirements, security requirements, character acknowledgements and enforcements conditions.

Some examples of conduct requirements include, conditions that you report to police daily, live at a particular address or surrender your passport.

A security requirement is a bail condition requiring another person (an ‘acceptable person’) to provide ‘security’ to ensure you comply with your bail conditions. This usually means the payment of a sum of money to the Court registry. A security condition is often accompanied by a character acknowledgement. This means the Court will require a person of good character to sign a form saying they believe you are a responsible person who will obey your bail conditions.

Another type of condition that can be made is called an 'enforcement condition'. This is a condition ensuring compliance with other bail conditions. For example, the Court can make it a condition of your bail that you not drink alcohol or take drugs. An enforcement condition would be an additional condition that requires you to submit to regular urinalysis testing to ensure you are not drinking or taking drugs.

A recent success story

Our Senior Associate in the Criminal Department, Madeleine Hughes, recently represented a client at Wollongong Local Court in a ‘show cause’ bail application. Our client was charged with sex offences that have a maximum penalty of life imprisonment. The offences were ‘show cause’ offences which meant that there was an additional hurdle to overcome in obtaining bail.

Madeleine made detailed written and oral submissions on behalf of our client. She submitted that he had no prior criminal history, excellent ties to the community and a substantial surety was offered. Ultimately the Magistrate was persuaded by Madeleine’s submission and our client was able to ‘show cause’ and was granted conditional bail. 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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