What is the first requirement for obtaining Bail?

As part of obtaining bail, the new Bail Act has a ‘show cause’ requirement for certain serious offences. According to the statute, bail must be refused unless the accused can show cause why his or her detention is not justified.

What happens after I ‘show cause’?

A bail decision will be made through consideration of the unacceptable risk test. The bail authority must assess the bail concerns. A bail concern is a concern that the accused (if released) will fail to appear at any proceedings for the offence, commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence.

Only the matters in section 18 are to be considered when assessing the bail concern. Bail must be refused if the assessment of the bail concerns creates an unacceptable risk.

An unacceptable risk is that if released from custody, the accused will fail to appear at any proceedings, commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence.

If there are no unacceptable risks, then the accused will either be granted bail, be released without bail or have bail dispensed with.

The bail law in action:  Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190

What happened in this case?

On Sunday the 5th of April 2015, Greg Gibbins and some friends, including Adam Swindell, attended a music festival at the Beachcomber Hotel in Toukley on the Central Coast. The respondent, Bradley James Brooks of Halekulani, and some family members, including his brother Joel Brooks, also attended.

Bradley Brooks did not know Mr Gibbins and there was no interaction between them while at the hotel. Shortly after 12am, a heated conversation occurred between a male in the Brooks’s group and a female standing with Mr Gibbins whilst outside a pizza shop not far from the hotel.

Joel Brooks approached and followed Mr. Swindell who then turned around and pushed him away. Bradley Brooks took out a knife from his pocket and moved towards Mr Gibbins and Swindell. Swindell began to run away and Brooks stabbed Mr Gibbins in the chest numerous times.

Brooks and his brother then assaulted Swindell who received a severe laceration to the upper right arm and a stab wound to the left of his chest.

Mr Gibbins was taken to hospital but later pronounced dead.

What did the Supreme Court decide in this bail case?

The Court considered section 16A of the Bail Act 2013 and agreed with the submissions by the Crown that there was nothing particularly special or unusual in what the respondent put before the Court to show cause.

The Court stated that age, lack of criminal antecedents, ties to the community and strong family support do not amount to show cause. Particularly when taking into regard the seriousness of the charged offence and strength of the Crown case. Based on failure to show cause, the Court did not proceed to address unacceptable risk and held that on the balance of probabilities, the detention of the respondent was justified.

What does this mean for me?

The Court’s decision seems to have risen the bar on the ‘show cause’ requirement. The question it arises is whether it is now necessary to show special or unusual circumstances in order to effectively show cause. However, this was later addressed in Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227. Beech-Jones J clarified that special or unusual circumstances are not necessary for cause can be shown and that ‘age, lack of criminal antecedents, ties to the community and strong family support’ can amount to cause, but they simply had not in the matter of Brooks.