What is a Show Cause Bail application?
Following the release to bail in many high-profile offenders, and following the tragedy of the Lindt Siege, strict bail laws have been rushed through to ensure that more serious offenders are kept behind bars.
In early 2015 there were a number of changes to the Bail Act which have made the prospects of getting bail in many serious criminal charges much harder. Within this amendment categories of offences were introduced for which bail must now be refused unless the accused can ‘show cause’ why his or her detention is not justified.
This amendment to the Bail Act means that for a number of offences achieving bail is now a lot harder and requires the accused to prove that the bail sought is not justified in the matter.
Which offences will now require the accused to show cause in a Show Cause bail application?
If the accused is charged with any offence that falls under s 16B of the Bail Act 2013 the show cause requirement for bail applications will apply.
There are many offences, all of which are found under s 16B of the of the Bail Act 2013, some of them are:
(a) An offence that is punishable by imprisonment for life,
(b)Sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or
(c) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,
(d) A serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence,
(e) Certain serious firearms offences,
(f) A serious indictable offence that is committed by an accused person:
(i) While on bail, or
(ii) While on parole,
What happens if the “show cause” requirement is overcome?
The next step that must be fulfilled in order for the accused to be granted a bail application is for the court to assess whether or not there are any “bail concerns” if the accused is released on bail.
The “bail concerns” the court will consider are:
(a) Fail to appear at any proceedings for the offence, or
(b) Commit a serious offence, or
(c) Endanger the safety of victims, individuals or the community, or
(d) Interfere with witnesses or evidence.
If, after considering the “bail concerns” applicable to the case, the court finds that there is an “unacceptable risk” of one or more of (a),(b),(c) or (d) above, the court must refuse bail.
This is generally called the “unacceptable risk” test.
What matters are taken into account when assessing “bail concerns”?
The court will have regard to a number of factors listed in section 18 of the Bail Act including:
(a) The accused person’s background, including criminal history, circumstances and community ties,
(b) The nature and seriousness of the offence,
(c) The strength of the prosecution case,
(d) Whether the accused person has a history of violence,
(e) Whether the accused person has previously committed a serious offence while on bail,
(f) Whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
(g) Whether the accused person has any criminal associations,
(h) The length of time the accused person is likely to spend in custody if bail is refused,
(i) The likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
(j) If the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
(k) Any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
(l) The need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
(m) The need for the accused person to be free for any other lawful reason,
(n) The conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
(o) In the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community
For more information on bail laws, and to see case studies where we have achieved bail for our clients, click here.
If you or anyone you know is currently seeking bail, then call LY Lawyers now for expert advice 1300 595 299.