Whenever you are charged with a serious offence, the police will have to decide whether to grant you bail. In making that decision, the police will look at these things:

  1. Whether there is a risk that you will not attend court when asked to do so.
  2. Whether there is a risk that you will reoffend.
  3. Whether there is a risk to the community if you are released.
  4. Whether there is a risk to witnesses or the victim if you are released.

These risks are called bail concerns. Whenever there is a bail concern, Police will see if there are any ways those concerns can be mitigated or addressed. This article will explore that new regime of bail laws that came into effect in January 2015. After a series of public outcries, and what can only be described as moral panic, bail laws were drastically overhauled in the past two years.


What is bail?

Bail is a conditional liberty while the accused is awaiting trial for offences that police have charged.


What are the new changes?

On 28 January 2015, The New South Wales Government passed amendments to the Bail Act 2013 (NSW) which has changed the definition of “unacceptable risk” and added a “show cause” requirement. The “show cause” provision will require bail applicants of certain serious crimes to show why his or her detention is unjustified. The onus will be on the accused.


What is a show cause offence?

A show cause offence is one in which the Parliament has deemed it so serious that effectively, there is a presumption against bail. The defendant will have to show cause as to why their detention is unjustified. It may include any of the following:

  • An offence which involves life imprisonment;
  • A serious indictable offence involving sexual intercourse with a persons under 16 years of age and/or infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16;
  • Serious personal violence offence including inflicting grievous bodily harm, wounding or the accused has previously been convicted of a serious personal violence offence.

If the applicant is successful to show why his or her detention is unjustified, the bail authority will determine whether the applicant poses an “unacceptable risk”. In order to determine whether there is an unacceptable risk, the bail authority must determine whether the applicant will (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 after being granted bail. The bail authority will consider the factors and whether these risks can be mitigated.


Factors to be considered by the bail authority include:

  • The accused’s background including criminal history, circumstances, whether they have a history violence and community ties,
  • The nature and seriousness of the offence
  • The strength of the prosecution’s case,
  • Whether the accused has previously committed a serious offence while on bail,
  • The history of the accused for complying or not complying with bail acknowledgements, bail conditions, Apprehended Violence Orders, Parole Orders or Good behaviour bonds
  • Whether the accused has any criminal associations,
  • The length of time, the accused will spend in custody if bail is refused,
  • The likelihood of a custodial sentence being imposed if the accused is convicted of the offence,
  • Any vulnerabilities or needs of the accused including youth, being an Aboriginal or Torres Strait Islander or having cognitive or mental health impairment,
  • the need for the accused to be free to prepare for his or her appearance in court or to obtain legal advice or for any other lawful reason,
  • In cases of a serious offence, the views of the victims of the offence or any family member of a victim who have a relevant concern if the applicant was released from custody which could endanger the safety of the victim, individuals or community,
  • If there are any bail conditions that could be reasonably imposed to address any bail concerns,
  • Whether the offence is of a sexual of violent nature or involves the possession or use of an offensive weapon,
  • The likely effect of the offence on any victim and on the community in general
  • The number of offences likely to be committed or for which the person has been granted bail or released on parole.

If the applicant is found to have unacceptable risk, the bail authority will need to determine whether those risks can be mitigated. If the risk cannot be mitigated then bail will be denied.

If the accused is found to have no unacceptable risk, then bail will be granted.


What if the police refuse bail?

If the Police refuse you bail, then you will be detained in custody. You will be brought before the Court as soon as possible and it is at this point that you can apply for Court Bail.

When deciding whether to grant bail, the presiding Magistrate will look at the same criteria as the Police. That is, the Magistrate will have consideration as to the bail concerns applicable to the matter, and whether any concern can be mitigated by the imposition of bail conditions.

Suppose for example that a person is charged with murder, and that the person will be undergoing heart surgery the following week. As murder is a show-cause offence, it being an offence that carries life imprisonment, the defendant will have to show cause as to why his detention is unjustified. Here, that show-cause could simply be his need to be released to undergo the operation and recover from the procedure.

Having said that, the test of show-cause appears, at least, to be rather onerous. Although the new bail laws do not stipulate what would suffice as ‘show-cause’, it would seem that Parliament intended to create a very high bar.

Our solicitors at Nyman Gibson Miralis are all qualified to conduct applications for release on bail. We have an accredited specialist in criminal law, and all our solicitors only practice in criminal law. If you, or you know someone who has been charged with a serious offence, it is critical that they receive the best legal representation so that they are able to meet the test for show-cause offences.