Show Cause Offences

The concept of a ‘show cause’ offence is a relatively new concept in NSW bail law. This was introduced in the 2015 amendments to the Bail Act. Section 16B of the Bail Act sets out a number of offences. If you have been charged with one of the offences listed in that section, and are over the age of 18, you will need to ‘show cause’ as to why your detention is not justified.

What Offences Does the Show Cause Requirement Apply to?

The offences listed in section 16B are:-

• Any offence that carries a maximum penalty of life imprisonment.
• Any serious indictable offence involving sexual intercourse with or inflicting actual bodily harm with intent to have sexual intercourse with a person under the age of 16 by a person above 18.
• Any serious personal violence offence, or offence involving wounding or inflicting grievous bodily harm, if the accused has already been convicted of a serious personal violence offence.
• Any serious indictable offence against Part 3 or Part 3A of the Crimes Act (Offences against the Person, or Public Order offences), or:
  • Under the Firearms Act that involves the use of a firearm; or
  • Under the Weapons Prohibition Act that involves the use of a military-style weapon.

• Any indictable offence involving:
  • the unlawful possession of a pistol or prohibited firearm in a public place; or
  • the unlawful possession of a military-style weapon.

• Any serious indictable offence:
  • Under the Firearms Act that involves acquiring, supplying or manufacturing a pistol or prohibited firearm; or
  • Under the Weapons Prohibition Act that involves buying selling or manufacturing a military style weapon, or selling on three or more separate occasions any prohibited weapon.

• Any offence under the Drug Misuse and Trafficking Act that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or plant.
• Any offence under Part 9.1 of the Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug.
• Any serious indictable offence committed by an accused who is on bail or parole.
• Any indictable offence committed while accused is subject to a supervision order, or the offence of failing to comply with a supervision order.
• Attempting to commit, assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit any of the above offences.

How Does the Show Cause Requirement Work?

If you have been charged with a show cause offence and are applying for bail, there is a two step process for bail to be determined.

The first step is for you to show cause why your detention is not justified.

If you are successful in showing why your detention is not justified, the second step is for the court to assess the bail concerns and determine whether there is an unacceptable risk, or whether appropriate bail conditions can be imposed to mitigate the risk. Discussion of bail concerns and unacceptable risk can be found here.

How do I Show Cause?

Unlike the assessment of unacceptable risk, where the Bail Act provides a list of factors to consider in section 18, no guidance is given to the Court in assessing whether someone has ‘shown cause’. This is determined on a case by case basis, taking into account any number of relevant considerations.

The Court of Criminal Appeal has stated that cause could be shown by a single powerful factor or a combination of factors.

There will often be an overlap in the factors relevant to the assessment of an unacceptable risk and the factors relevant in assessing whether cause is shown.

Examples of matters that the Court could consider in determining whether cause has been shown are:-

• That this is your first time in custody.
• Your need to be at liberty to:
  • Prepare for your own defence;
  • Maintain employment; or
  • Provide and care for your family;

• If custody would be more onerous for you than the average person because of your age/medical condition/mental health issues.
• The length of time you are likely to spend in custody pending trial.
• The strength of the prosecution case.
• The likely penalty if you were to be convicted on the charges.

The last three points often intersect with one another. The length of time you will spend awaiting trial is especially relevant if the Court is of the view that:

• The Prosecution case against you is not a strong one;
• If you were to be found guilty you would not necessarily be sentenced to a term of imprisonment; or
• If you were to be found guilty, the time you spend in custody awaiting trial would exceed the sentence imposed.