Why it is becoming more difficult to get Bail- “Show Cause” Bail Applications Explained

Why it is now harder than ever to get bail- “show cause bail applications”

How is Police Bail and Court Bail Decided?

Once you have been arrested and given notice to attend court, the police under the NSW Bail Act 2013 No 26 have the authority to release you without bail on your own recognisance until your hearing or they can grant what is known as ‘police bail.’ If the police do not grant you bail or release you without bail then they must bring you before a magistrate who will hear your matter and decide whether or not to grant you ‘court bail.

In exchange for being put on bail you agree to show up for your assigned court date as well as other stipulations that are decided upon by the court.

How is bail decided by a Court?

According to the Bail Act, there are two types of offences. One type of offence is ‘not show cause’ and the other is ‘show cause.’ In the case of a ‘not show cause’ offence, the court must release an accused from custody unless it is believed that he or she poses an unacceptable risk. If there is cause for concern upon release of an accused, then the court must decide whether this risk can be mitigated by imposing a bail condition. If the risk cannot be mitigated bail must be refused. Mitigating factors include but are not limited to the nature and seriousness of the offence.

With regards to a ‘show cause’ offence, there is a presumption against bail unless an accused can ‘show cause’ for release. If you can’t show cause you will be refused bail.

If you are not granted bail initially you do have an opportunity to apply for Supreme Court Bail.

How did the ‘show cause’ requirement come into effect?

On May 2014 the Bail Act 2013 was introduced. Another in a long line of amendments to the old Bail Act, the Bail Act 2013 required authorities to focus bail decisions “on the risk that an individual person posed when making a bail decision”. However, this simpler ‘risk based’ assessment model not only gave more discretion to the judiciary, it also removed the presumption against bail for people facing serious charges like murder, rape, and armed robbery.

Shortly after it was enacted, the number of people “being held on remand for serious charges “plunged 27%” (The Daily Telegraph). Concerns also arose regarding some bail decisions including two particularly high profile bail decisions that allowed accused murderer “bikie boss” Mahmoud “Mick” Hawi and accused wife killer Steven Fesus to walk free. The outrage over these decisions spurred the Premier to call an independent review of the Bail Act 2013 by Labor Attorney General John Hatzistergos.

‘Show cause’ was one of the key recommendations that resulted from this review. The underlying principle of ‘show cause’ bail applications is as The Australian highlights, a “return to presumptions against bail for those accused of serious crimes.”

Why it is now harder than ever to get bail- “show cause bail applications”?

Being granted bail under the new ‘show cause’ bail application is much more difficult because the accused has to prove that he or she will not pose a risk to the community upon his or her release. Basically bail must be refused unless the accused can ‘show cause’ why his or her detention is not justified instead of the previous risk based model in which the starting point was that bail would granted unless there were strong reasons why an accused should not be released on bail.

Critics also argue that under the new ‘show cause’ bail application it is very difficult to obtain bail under these conditions because it is almost as if an offender is presumed guilty before their case has even gone to trial.

What offences fall into “show cause” bail applications?

‘Show cause’ offences are serious personal violence offences or serious indictable offences. A “serious personal violence offence” is an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more. Serious indictable offences include violence or firearm offences, or offences that involve sex and sexual assault crimes.

Under Section 16B of the Bail Act the following are classified as “show cause” offences.

  • “Any offence that is punishable by life imprisonment.
  • Any sex or sexual assault offence.
  • Any offence that results in Grievous Bodily Harm.
  • A serious indictable offence under the Firearms Act 1996 or Weapons Prohibition Act 1998 that involves the unlawful possession or use of a prohibited weapon or firearm.
  • Any serious indictable offence that was done while the person was already on bail or parole.
  • Any offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act.”

What are the factors courts take into consideration when determining bail?

Section 18 of the NSW Bail Act consider certain factors when determining bail such as:

  • the probability the person being granted bail will appear in court,
  • the accused’s background, criminal history, current living arrangements and community ties,
  • the circumstances of the offence, and
  • the strength of evidence among other things.

As Mark Coultan points out in The Australian, many feel that the ‘show cause’ amendment was a “knee jerk” response to a select number of high profile cases and it “downgrades the presumption of innocence,” which is fundamental to our judiciary system.

If you or a loved one is in gaol and needing advice about “show cause” bail applications, or need representation in making an application, call LY Lawyers on 1300 595 299 for a free consultation.