In NSW, the “show cause” test is a requirement of the bail application process. This legal requirement applies when you have been charged with a certain serious offence which requires you to demonstrate to the court why your detention is not justified. 

The show cause test shifts the burden of proof onto you, compelling you to provide reasons for your release on bail. The requirement is critical to determine the eligibility of your bail as it helps balance your rights with the need to protect community safety. Understanding and effectively addressing the show cause test is critical if you are seeking bail in NSW for serious charges. 

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Overview of the Bail Act in NSW 

The Bail Act 2013 (NSW) governs the procedures and criteria for granting bail in NSW. The purpose of bail is to ensure that you attend court and follow conditions while allowing you to not remain in remand until your court date. The bail authority, which may be a court or an authorised justice, is responsible for deciding whether to grant bail. Courts will consider several factors when deciding on bail, including the seriousness and nature of the offence, your criminal history, risk of failing to appear, potential threats to the community, and whether any bail concern exists that may justify refusing bail or imposing bail conditions.

Under section 16A of the Bail Act, the show cause requirement is specified, mandating that if you are charged with certain serious offences must demonstrate why your continued detention is not justified.

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Understanding Show Cause Offences

Show cause offences are serious crimes, including certain indictable offences involving violence, firearms, or drugs, for which a person charged must demonstrate why their continued detention is not justified. In NSW, these certain offences typically include indictable offences such as murder, serious drug offences, sexual assault, and some violent crimes.

The Bail Act 2013 (NSW) mandates that if a person charged with an offence punishable by life imprisonment or other certain offences is before the court, they must satisfy the show cause test. This means the person charged must provide reasons to not be held in remand; this can include community ties, stable employment, or specific circumstances to justify their bail.

Examples of Show Cause offences

Show cause offences are serious crimes where you must demonstrate why your continued detention is not justified. These offences are defined under the Bail Act 2013 (NSW) and usually include: 

1. An offence which carries life imprisonment
2. A serious personal violence offence if you have already been convicted of this.
3. A serious indictable offence involving sexual intercourse with someone under the age of 16 
4. A serious indictable offence involving a weapon, including offences involving a military style weapon or a prohibited firearm
5. An offence that involves a commercial quantity of a serious or prohibited drug
6. Any serious offence causing grievous bodily harm or actual bodily harm
7. Any serious offence committed while you are on bail or parole 

In contrast, for offences that do not require showing cause, you generally have the right to release unless the prosecution can prove that there are unacceptable risks associated with granting bail. 

These might include less severe crimes where the prosecution must demonstrate that you pose a risk of failing to appear in court, committing further offences, endangering the community or interfering with witnesses or evidence.

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Criteria for the Show Cause Test

To successfully show cause, you must demonstrate reasons why your continued detention is not justified. The court evaluates several factors to determine whether the show cause threshold is met. 

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Specific Criteria for Showing Cause includes: 

1. First Time in Custody: If this is your first time in custody, the court may perceive you are less likely to pose a significant risk. 
2. Need for Liberty: The court may be of the view that you need to be at liberty to prepare you defence, remain employed or care for a family.
3. Custody Hardship: Custody may be exceptionally hard for you due to medical, family, or personal reasons.
4. Length if time in Custody: If you are likely to spend a significant amount of time in custody before your court date, the court may consider this a reason to grant bail.
5. Strength of Prosecution’s Case: The court will assess the strength of the prosecution’s case. If they perceive their case as weak or likely to be unsuccessful, you may be able to argue that bail should be granted.
6. Exceptional Circumstances: In some cases, bail will only be granted if exceptional circumstances are demonstrated, such as unique or extraordinary facts that justify release despite the seriousness of the offence.

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When evaluating whether the show cause threshold is met, the court will consider a variety of factors such as: 

1. The Nature and Seriousness of the Offence: While the accused person must show cause for serious offences, the specific circumstances and details of the alleged crime will be closely examined.
2. Your Personal Circumstances: The court will look at your personal background such as criminal history, family ties, employment, health conditions, and your relationship with any family member of the victim or accused. The safety of victims, individuals, or the community will also be considered.
3. Risk Assessment: The court assesses your risk of failing to appear in court, committing further offences, endangering the community, or interfering with witnesses or evidence.
4. Other Relevant Factors: The court will consider whether the accused person has a mental health impairment or criminal associations when assessing bail.
5. Proposed Bail Conditions: Your lawyer can propose specific bail conditions to mitigate any perceived risks. These conditions might include curfews, regular reporting to police or surrendering your passport. 

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Preparing to Meet the Show Cause Requirement 

Yourself and your legal representative should gather compelling evidence and develop strong arguments to meet the show cause requirements. This will include: 

1. Collecting Evidence 

You should gather character references, evidence of stable employment, and community ties. Medical records can also show any health issues which may make remaining is remand difficult. All of these will be taken into consideration by the court when deciding to grant your bail. 

2. Developing Arguments

You must be prepared to argue why your freedom is necessary for preparing the defence, keeping employment, or caring for your family. It is important to show any weaknesses in the prosecution’s case and discuss the likely penalty if you are found guilty. If you are considering entering a guilty plea, mention how this may positively influence the court's assessment of bail and could result in a more lenient sentence.

3. Supporting Documents 

Prepare documents such as your criminal history, proof of residence, employment records, medical records and letters such as good character references from community members. These documents will support your bail application.

As part of the bail process, bail acknowledgments are also required to confirm that the accused understands their legal obligations and the conditions set by the court.

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Legal Strategies for Show Cause test

Effective legal strategies for the show cause test include presenting strong character references, showing stable employment, and demonstrating strong community ties. Highlighting any medical or personal issues showing why custody will be difficult can also assist in being granted bail. Seeking conditional bail, where specific conditions are imposed to address concerns such as risk of reoffending, failure to appear, or interference with witnesses, can be an effective legal strategy. A well-prepared argument will need to be made about the necessity of your freedom for preparing your defence and/or caring for family.

An expert criminal lawyer plays a crucial role in this process, leveraging their knowledge to gather evidence, develop arguments and assist you with navigating the complex legal requirements to help secure bail.

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What Happens After You Show Cause?

Once you successfully show cause, next you have to pass the unacceptable risk test. This test assesses whether your release on bail will pose any significant risks, such as failing to appear in court, committing further offences, endangering public safety, or interfering with witnesses or evidence.

If the court finds that there are unacceptable risks, such as a risk you may fail to appear, you may be refused bail as a result. The court will evaluate these risks and consider whether the imposition of bail conditions can mitigate them. If the court is satisfied that the risks can be managed, you will be released on bail subject to any conditions imposed. You must successfully pass this test to obtain bail.

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Consequences of Failing to Show Cause

If you fail to show cause, the court will likely refuse your bail, meaning you will have to remain in remand until your court date. This means that you will remain in custody or remand, for several weeks or months depending on the court’s schedule and the complexity of the case.

Remaining in remand can disrupt your personal and professional life, making it more challenging to prepare your defence. Additionally, if you are convicted and the court imposes a custodial sentence, the time you spent in remand will usually be taken into account when determining the length of your imprisonment.

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Appeals and Further Actions

If a show cause decision is not favourable, you have the option to appeal. You may appeal to the Court of Criminal Appeal or the District Court, depending on the circumstances. A criminal appeal may involve challenging the refusal of bail or the conditions imposed. The prosecution may also file a detention application to keep the accused in custody. In some cases, an authorised justice may be involved in making or reviewing bail decisions.

You can also make Supreme Court bail applications, which require specialist legal expertise. As part of the legal process, a warrant authorising arrest or detention may be issued if you are to be taken into custody. This involves filing a notice of motion and an affidavit detailing new evidence, changes in circumstances or arguments to address the initial refusal.

The appeal process requires thorough preparation and adherence to the processes of the court. It is important to have experienced legal representation to navigate this complex process, present arguments and increase your chances of securing bail. An expert lawyer will provide you with strategic guidance and ensure all legal avenues are explored.

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Need assistance with your bail application? 

Understanding and effectively navigating the show cause test is essential for securing bail. This article has covered the key aspects of the show cause test, including preparation, legal strategies, and consequences of failure. Recent changes, such as the Bail Amendment Bill, have significantly impacted bail procedures in NSW, introducing new requirements and higher thresholds.

Faraj Defence Lawyers specialises in all aspects of criminal law, including bail applications, apprehended violence orders, and complex matters involving groups advocating support for certain causes. We are experienced in assisting clients whose bail applications may involve associations or affiliations that are scrutinised under current legislation. Legal terms used in bail legislation often have the same meaning as defined in relevant statutes, and our team ensures you understand these definitions and their implications.‍

Contact our team of defence lawyers for a free initial consultation to enhance your chances of securing bail.

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