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Updated 17 February 2015
Last year, I wrote that the Bail Act 2013 was possibly going to be amended, and amended quite heavily (November 2014 post). The Bail Act 2013 was commenced after an extensive review of the law was undertaken. The 2013 Act simplified the requirements for bail and mandated that all offences be treated in the same way. Despite there being no evidence available that the Bail Act 2013 was leading to a grant of bail in more cases (see my earlier post), the government decided to review the Act. It employed a former Attorney General, John Hatzistergos, to undertake that review. His report titled, Review of the Bail Act (the Review), was published in July 2014. It appears that the amending act has adopted the recommendations in the report.
Show cause offences – Reversal of the onus of proof
The amending act now provides for specific offences, called “show cause” offences. These offences are to be dealt with differently to other offences. The legislation provides that, “a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision”, in accordance with Part 3 Division 2 – (using the unacceptable risk test which applies for all offences). The provision does not apply if the applicant is under the age of 18.
These provisions reverse the onus of proof requiring the accused charged with a show cause offence to prove why their detention is not justified. That issue must be determined on the balance of probabilities (see s 32 of the Act).
What are show cause offences?
That is not an entirely easy question to answer but one thing is clear, there are very many such offences.
So the first question for anyone to ask in considering a question of bail is whether the offence is a show cause offence. Section 16B of the Act purports to outline offences that are show cause offences. They encompass both State and Federal offences. Included are:
- all offences carrying a penalty of life imprisonment;
- a serious indictable offence that involves having sexual intercourse with a person under the age of 16 or the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16;
- many other serious State and Federal drug offences;
- offences involving wounding or grievous bodily harm, serious personal violence offences; many serious offences involving the possession and use of firearms and weapons;
- any serious indictable offence committed whilst a person is on bail or whilst on parole and any attempt to commit any of the above offences or assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to do any of the above offences when such an offences is charged as a serious indictable offence.
That list is not definitive.
What does show cause mean?
The second reading speech in Parliament provided this guidance.
Victoria and Queensland have show cause requirements in their bail legislation. Courts in those States have noted circumstances that may be relevant to determining “show cause”, including the strength of the prosecution case, preventable delays and urgent personal situations such as the need for medical treatment. Bail authorities in New South Wales will be informed by the approach taken in these other jurisdictions when applying the show cause provisions.
I note that the Review referred to a Victorian decision, Woods v Director of Public Prosecutions  VSC 1 and stated that the case said, “that the defendant must first discharge the onus of showing cause and then the prosecution must establish unacceptable risk”. See page 59 of the Review.
This was a decision of a single judge of the Victorian Supreme Court, Justice Bell. The Review did not acknowledge (although the case does at ), that there are two separate lines of legal authority on the question of the application of this test in Victoria and “the Court of Appeal has not yet determined which of the views (in the two competing interpretations) is correct”.
In another case, Re Asmar  VSC 487, a very senior member of the Victorian bench, Maxwell P, said that in determining whether bail should be granted in a show cause case the Court must determine, “whether the applicant has satisfied the Court that his/her detention in custody is not justified”. Justice Bell noted that pursuant to the view expressed in Asmar “[i]ssues relating to whether the applicant represented an unacceptable risk form part of the process of considering whether the applicant had shown cause why his or her detention in custody was not justified”: (see ). Justice Bell goes on to acknowledge that, whilst preferring a two step approach as noted in the Review, the “decision of Asmar has been frequently followed by judges of the trial division of this court”. (see ).
I have noted these decisions simply to provide context to the suggestion in the Review and in the second reading speech that NSW will be informed by the Victorian decisions. No Queensland authorities are referred to in the decision of Woods v Director of Public Prosecutions. The Review also quotes extensively from a decision of Van Tongeren v Office of the Director of Public Prosecution (Qld)  QMC 16 (14 November 2013) but that decision is from a single magistrate in that State and is not in any sense a binding authority, even in Queensland.
It will obviously be a matter for the Supreme Court and perhaps ultimately the Court of Appeal to make binding decisions as to the application of the law in NSW.
The unacceptable risk test
Assuming the offence is not a show cause offence or, in the case of a show cause offence, it has been possible for an accused person to demonstrate that his or her detention is not justified, then ss 17, 18 and 19 of the Act are to be applied. Why, in a show cause case, it would be necessary to further examine the issues for the grant of bail after a person has demonstrated that their detention is not justified is not explained in the legislation. One would imagine that the very same issues to be determined in ss 17 to 19 would be the issues already considered and determined in deciding whether a person’s detention is justified or not. However, the Act appears to formally require this additional process be undertaken (see the flow chart in s 16 and s 19(3) of the Act).
Section 17 requires a bail authority, before making a bail decision, to address any bail concerns. A “bail concern” is that an accused person if released, will (as opposed to might), (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. The onus in presenting bail concerns to the court appears to be on the prosecution.
When considering those concerns the court is to consider the factors outlined in s 18 and having considered those matters under s 19 must refuse bail “if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk”.
When the Bail Act 1978 was replaced with the Bail Act 2013, it was done after a lengthy consultation process, but also importantly after the Law Reform Commission had prepared a formal report in relation to bail. The then Attorney General, in the second reading speech, made it clear that the simplification of the language of the Bail Act was a crucial aspect of the legislation. Mr Smith said:
The Government considers that applying its unacceptable-risk test is a much simpler and more responsive way to make bail decisions than applying the complex scheme of presumptions in the existing Bail Act. Simplifying bail laws so that they are easier to understand and apply is one of the key goals of this bill. The Law Reform Commission recommended that the bill be drafted in plain English, and Parliamentary Counsel consulted with the Plain English Foundation during the drafting process. I note that the provisions governing the unacceptable-risk test in part 3 of the bill have been distilled into a flowchart which should greatly assist police, legal practitioners and courts when applying the legislation. The bill has also been the subject of targeted consultation with the heads of jurisdiction, key legal stakeholders and police.
It appears that the government has now abandoned that approach. The language used in the amending Act is unclear and could be difficult to interpret. For example, in some cases it might be difficult to determine what is a “show cause” offence. The changes appear to leave open the potential for a great deal of argument and ultimately doubt with respect to the decisions to grant bail.
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