Bail allows a person charged with a criminal offence to remain in the community rather than being held in custody while waiting for their day in court. The RMB Lawyers Criminal Division explains how the law applies to Show Cause Offences.
In NSW, bail is governed by the Bail Act 2013 (NSW). For certain serious offences, an accused person must satisfy an additional statutory threshold known as the show cause requirement. In those matters, bail must be refused unless the accused shows cause as to why detention is not justified.
The question is therefore not merely whether conditions can be imposed, but whether release from custody is justified at all in the particular circumstances.
Meaning and Operation of the Show Cause Requirement
Sections 16A and 16B identify when the show cause requirement applies. In practical terms, a bail application in such a matter proceeds in two stages. First, the accused must establish why continued detention is not justified. If that threshold is not met, bail must be refused. If cause is shown, the court then considers whether the accused presents an unacceptable risk if released, including risks of failing to appear, committing a serious offence or endangering others.
When the Requirement Applies
The categories of show cause offences are set out in section 16B. They include offences punishable by life imprisonment, certain serious firearms and other types of serious offences. Whether a charge is a show cause offence depends upon the precise allegation, the applicable statutory provision, and the accused person’s status at the time of the alleged offending.
Establishing Cause and Addressing Risk
There is no exhaustive checklist for showing cause. The court considers the whole of the circumstances, including matters such as weaknesses in the prosecution case, delay, likely sentence, the need to prepare a defence, employment, family responsibilities, medical issues, or the particular hardship of continued custody. Even if cause is shown, bail may still be refused unless any unacceptable risk can be addressed by conditions such as reporting, curfews, etc.
Conclusion
The show cause requirement creates a substantial additional threshold in serious bail matters in NSW. Although it does not make bail unavailable in every case, it requires careful preparation and a clear explanation of why detention is not justified, together with a persuasive response to identified bail risks.
This article is intended as general information only and does not constitute legal advice. The outcome of any bail application will depend upon a range of factors.
If you require legal assistance with any criminal or bail related matter, please contact our office on Freecall 1800 681 211 for a consultation, or use our 'Ask a Question' tool on our website.