Show Cause

Before attention can turn to bail concerns, there is a category of offences in respect of which the accused person needs to “show cause” as to why bail should be granted.

Before attention can turn to bail concerns, there is a category of offences in respect of which the accused person needs to “show cause” as to why bail should be granted.

The list of offences in respect of which cause need be shown is set out in s16B of the Bail Act 2013.

The question of whether cause has been shown is separate to the question of whether the bail concerns can be met, notwithstanding what is often considerable overlap between these questions (R v Tikomaimaleya [2015] NSWCA 83). Moreover, whilst the question of bail concerns is to be assessed against (and only against) the matters set out at s18 of the Bail Act 2013, the matters to be considered on the question of cause are “at large”.

As such, there is no inconsistency with a court finding that cause has not been shown notwithstanding that the court considers that there are no bail concerns, or no bail concerns that cannot be met by conditions.

Tikomaimaleya

Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83

“The terms of subs (2) make it clear that there is a two-step process involved in determining bail release and detention applications for show cause offences. That this is so is further confirmed by a flow chart in s 16; the provision in s 17(4) that s 17 does not apply if bail is refused under Div 1A; and the provision in s 19(3) that in relation to a show cause offence, the fact that the accused person has shown cause that detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.”