AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Supreme Court 18 February 2015

M v R

[2015] NSWSC 138

Sexual offencesAssault & violenceDrugsPublic order & justice offences
BAIL RELEASE APPLICATION SHOW CAUSE REQUIREMENT

Citation: M v R [2015] NSWSC 138
Court: Supreme Court of New South Wales
Date: 18 February 2015
Judge(s): McCallum J

Background

The applicant (whose name is subject to a non-publication order) faced 28 charges broadly related to his treatment of the young child of his partner. The most serious charge was murder. Other charges for which bail was opposed included common assault, assault occasioning actual bodily harm, producing child abuse material, inciting an act of indecency, injuring a child, and a drug offence. The remaining 13 charges were fine-only offences that carried a right to release, and were not the subject of the application.

The application was heard approximately two weeks after the commencement of the Bail Amendment Act 2014 (NSW), which introduced significant changes to the Bail Act 2013 (NSW). The two key reforms were: simplification of the unacceptable risk assessment by incorporating the consideration of bail conditions into that single task, and the introduction of a "show cause" requirement for certain serious offences.

The applicant had been in custody since his arrest on 20 September 2013, a period McCallum J described as lengthy. The Crown opposed bail on the grounds of unacceptable risks of failure to appear, endangering the safety of victims or the community, and interference with witnesses or evidence.

Legal Issues

  • How does the show cause requirement under s 16A of the Bail Act 2013 (NSW) interact with the unacceptable risk test under Division 2 of Part 3 of that Act?
  • Does the show cause requirement impose a presumption that a person charged with a show cause offence would normally be refused bail?
  • Where there is no unacceptable risk, can a court still refuse bail on the basis that the applicant has not shown cause?
  • Whether the applicant demonstrated unacceptable risks in relation to failure to appear, endangering victim safety, and interference with witnesses or evidence.

Decision

Issue 1: The structure and content of the show cause requirement

McCallum J identified that the Bail Act 2013, as amended, appears to establish a two-stage process: first, the applicant must show cause why detention is not justified; if cause is shown, the bail authority then applies the unacceptable risk test under Division 2. However, her Honour found the apparent simplicity of this approach to be "illusory" (at [7]). An applicant cannot show cause without addressing relevant bail concerns, and the determination of whether cause has been shown must be informed by the outcome of the risk assessment (at [7]-[8]). Conversely, where there is no unacceptable risk, the absence of risk would inevitably point to the conclusion that detention is not justified (at [8]).

Issue 2: Whether the show cause requirement imposes a presumption against bail

The Crown submitted that a person charged with a show cause offence "would normally or ordinarily be refused bail" and faces a heavy burden. McCallum J rejected this characterisation (at [9]-[10]). The requirement should not be construed as imposing a presumption that bail will be refused, and courts must approach each case on its merits with no assumed outcome. Where there is no unacceptable risk, the court must grant bail regardless of the show cause requirement (at [11]-[12]).

Issue 3: The proper function of the show cause requirement

Her Honour held that s 16A serves the function of instructing the bail authority that the circumstance which triggered the show cause requirement is likely to inform the assessment of bail concerns (at [13]). For example, an offence involving unlawful possession of a firearm in a public place will guide the assessment of community safety concerns, and a commercial drug offence may guide assessment of re-offending risk (at [13]-[14]). The applicant bears the task of persuading the court that any obvious bail concern does not give rise to an unacceptable risk, though this does not impose a formal onus of proof in the traditional evidentiary sense (at [15]-[16]).

Issue 4: Application to the facts

The applicant advanced three matters: the complexity of the case requiring him to be free for trial preparation, the alleged weakness of the Crown case, and the length of time already spent in custody. McCallum J accepted that complexity was a relevant consideration and that lengthy remand was a legitimate factor, noting that as time wears on a risk may become more acceptable when balanced against a period of detention that offends fairness (at [17]-[19]). However, she did not accept that the Crown case on murder was weak. The Crown relied on interviews with the applicant and the child's mother, and an autopsy report that cast doubt on the defence of accident (at [27]-[28]). The court found unacceptable risks of failure to appear, endangering the safety of victims, and interference with witnesses, none of which were mitigated by the proposed conditions of a $5,000 surety and residential arrangements (at [30]-[31]). It followed that the applicant had failed to show cause why his detention was not justified (at [32]).

Orders Made

  • Release application refused.

Key Takeaways

  • The show cause requirement under s 16A of the Bail Act 2013 (NSW) does not operate as a presumption against bail. McCallum J held that courts must approach each show cause application on its merits, and where there is no unacceptable risk, bail must be granted regardless of the requirement (at [10]-[12]).

  • Cause shown and unacceptable risk are not truly separate inquiries. Because an applicant cannot demonstrate that detention is unjustified without addressing bail concerns, and because the absence of unacceptable risk necessarily points to detention being unjustified, the two assessments are intertwined rather than strictly sequential (at [7]-[8]).

  • Under s 16A, the circumstance that triggered the show cause requirement is itself likely to be relevant to the assessment of bail concerns. The section instructs the bail authority to treat that circumstance as informing the risk evaluation, placing the practical onus on the applicant to address any obvious bail concern that flows from the nature of the offence (at [13]-[15]).

  • Removal of s 3(2) of the Bail Act 2013 (which referenced the presumption of innocence and the right to liberty) does not derogate from those fundamental common law principles. McCallum J treated them as continuing premises of the bail assessment even after the amendment (at [4]).

  • A lengthy period of pre-trial custody is a relevant consideration in the risk assessment. The court recognised that, as remand extends, a particular risk may become more acceptable when weighed against the duration of detention and notions of fairness and justice (at [19]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 3, 16A, 16B, 17, 18, 19, 20A, 31
- Bail Amendment Act 2014 (NSW)

Cases
- Not stated