Bail Applications and Show Cause Hearing
I’ve been charged and I’ve been told to make a Release Application.
Is that the same as bail?
Now I’ve been told I have to go to a Show Cause Hearing?
What is Bail?
Bail is a set of pre-trial conditions that are imposed once someone who has been charged to make sure they comply with the judicial process and turn up to Court when their charge is heard.
It is the conditional release of a defendant (the person charged) who promises to appear in Court when required for their matter to be heard.
What is a Release Application?
When someone is accused and charged, and refused bail they can make a further application, with the Court, which will either be denied, granted with conditions or dispensed with. This is called a Release Application as the accused is released into the community under conditions set by the Court.
What is so special about a Show Cause Hearing?
How does an accused end up here?
The Show Cause Hearing is a test that requires the accused to show why they should not be imprisoned.
This is in cases where the accused has been charged with a serious offences which are generally punishable by imprisonment for life including:
Certain drug offences;
Sexual offences;
Serious personal violence offences;
Certain firearm offences;
Murder; and
Serious indictable offences committed while on bail, which is defined as an offence that carries a sentence of more than 5 years in prison
At the Hearing the accused or their legal representative must establish why detention is not warranted. This is a two-stage process.
Stage 1
Stage 1 primarily deals with the strength of the prosecution case.
The onus is on the applicant, the defendant, to prove that detention is not justified.
There is no presumption of innocence in a Show Cause Hearing and a failure to show cause results in an automatic refusal of bail.
This places an extra hurdle for the accused. The case law demonstrates that a number of factors may be sufficient for cause to be shown.
Factors that have been accepted by the Courts include the accused is needed in their local community or that there has been an excessive delay in hearing the matter while the accused remained in prison, that the client has medical issues, or that the accused will be prejudiced in preparing their case because they cannot give instructions to their lawyer, especially during COVID-19 where visiting prisons has been restricted.
Stage 2
If you satisfy the Court in relation to Stage 1 you then have to answer the requirements of Stage 2.
This is where you make submissions about whether there is unacceptable risk that the accused will breach bail conditions primarily to attend Court for the Actual case as charged.
What is unacceptable risk?
The Stage 2 unacceptable risk matters include whether:
There is any history of failure to report
There has been any prior breach of bail conditions
Whether there is any history of violence
Any evidence of issues with the applicant’s physical and mental health
Whether time in custody would impede the applicant’s ability to instruct legal representatives
How can I overcome these tests?
If the Court remains concerned that the accused may present an unacceptable risk to the community, it is important to provide something that will give the Court confidence that the accused will comply with any bail conditions.
This may mean that a relative or friend provides a surety, an amount of money held with the Court that will be forfeited if the accused breaches bail.
It may be a character reference from respected members of the accused’s local community.
It may be proof of secure and stable accommodation.
The conditions will depend on the circumstances of each case and the concerns of the Court in relation to the accused.
How Can I ensure I get Bail?
The short answer, you can’t.
What you can do is instruct your lawyer with the circumstances of your case.
Accept what may be unfavourable in your case and concede those matters. If you missed an appearance at the Police Station because you misunderstood the times involved, admit that and explain.
Provide mitigating factors such as a responsible person to stand surety for you, or a respected community member to present a character reference for your personal role in your community.
Show Cause Applications are an extra hurdle for you to overcome but each case is decided on its individual facts, which your lawyer will present in the two stages.
If the Court does grant bail, make sure you comply with all the conditions, as this will be a further mitigating factor in your case.
We have successfully persuaded the Court on a number of occasions that family support and surety will ensure that our client will comply with the bail conditions imposed by the Court.
This article is provided as information only and should not be relied on in Court.
Please contact our office, if you need assistance and advice about your bail application.