By a Criminal Defence Lawyer | Laws | 10 March 2015
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:
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.
Bail is a conditional liberty while the accused is awaiting trial for offences that police have charged.
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.
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:
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.
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.
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.
If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in all types of criminal proceedings. Call 1800 NOT GUILTY or fill in our contact form and arrange a free conference with a solicitor today.