Citation: [2026] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 18 February 2026
Judge(s): Mitchelmore JA (at [1] and [40]), Dhanji J (at [2]), Coleman J (at [39])
Background
The applicant, a 26-year-old man, made a release application to the Court of Criminal Appeal under s 49 of the Bail Act 2013 (NSW) after bail had previously been refused by both the Local Court and the Supreme Court. He had been in custody since his arrest on 8 October 2025 — a period exceeding four months at the time of the application.
The applicant faced serious charges arising from two distinct sets of events. The first concerned allegations of aggravated kidnapping (s 86(3) of the Crimes Act 1900) and robbery with a dangerous weapon, namely a firearm (s 97(2) of the Crimes Act 1900), said to have occurred on 24 September 2025. The prosecution case was that the applicant and a co-accused (said to be the applicant's brother) lured the complainant — a person known to the applicant through prior drug supply — to an RSL club car park under the pretence of collecting a drug debt. Once the complainant entered their vehicle, the doors were allegedly locked, a handgun was produced, and the complainant was robbed of $4,000 and his phone. He was then driven to another location, threatened with being shot, and physically assaulted before being released. The second set of charges related to drug offences arising from the search of the applicant's home upon arrest, during which police located approximately 2.8 kilograms of cannabis, 18 grams of MDA, and 42 grams of cocaine, among other substances.
The dispute before the Court was whether the applicant could show cause why his detention was not justified (as required for these show cause offences) and, if so, whether bail could be granted subject to conditions that adequately addressed any unacceptable risks.
Legal Issues
- Whether the Court of Criminal Appeal should hear the release application afresh, rather than as an appeal from the Supreme Court's refusal.
- Whether the applicant could show cause why his detention was not justified, as required by s 16A(1) of the Bail Act 2013 for the show cause offences charged.
- What content should be given to the "show cause" test, and how it relates to (but differs from) the unacceptable risk test under s 19 of the Act.
- Whether any unacceptable risk existed that could not be sufficiently mitigated by bail conditions — specifically, risks of failure to appear, commission of further serious offences, or endangerment of any individual.
- What was the strength of the prosecution case against the applicant, assessed to the extent possible at a bail application.
Decision
The Court confirmed, consistently with established authority (Saadieh, Kugor, Obeid v R (No 2)), that a release application to the Court of Criminal Appeal is not an appeal from the Supreme Court's decision but must be heard and determined afresh.
On the show cause question, Dhanji J (with whom Mitchelmore JA and Coleman J agreed) canvassed the relevant principles, drawing particularly on Barr (a Pseudonym) v DPP (NSW). His Honour noted that while the statute does not expressly define what is required to "show cause," the term "justified" is "conspicuously open-textured" and must be understood in the context of fundamental legal principles including the presumption of innocence and the right to liberty, balanced against the protection of the community and the integrity of the justice system. Importantly, the show cause test and the unacceptable risk test are distinct: satisfying show cause does not automatically satisfy the unacceptable risk test (s 19(3)), and the show cause test permits consideration of matters beyond those exclusively listed in s 18 for the unacceptable risk assessment.
In assessing the applicant's position, the Court weighed several factors in the applicant's favour: he had no relevant criminal record (only a minor traffic offence); he had never previously been in custody; he was relatively young; the likely period of pre-trial detention was substantial (a trial was not anticipated before March 2027, approximately 17 months after arrest); and family and personal supports were available. On the prosecution case, the Court found the kidnapping and robbery charges appeared "reasonably strong" given objective evidence corroborating key aspects of the complainant's account — though possibly excepting the presence of a firearm. The strength of the drug charges was assessed as "uncertain," particularly regarding whether drugs other than the cannabis could be proved to have been in the applicant's exclusive possession.
On balance, the Court was satisfied that cause was shown and that any unacceptable risks could be sufficiently mitigated by bail conditions. Bail was granted subject to conditions.
Orders Made
- The release application was granted.
- Bail was granted subject to conditions (the specific conditions are not fully detailed in the truncated text, but the Court determined that conditional bail was appropriate to address identified risks).
Key Takeaways
- Under s 49 of the Bail Act 2013 (NSW), a release application to the Court of Criminal Appeal is heard afresh, not as an appeal from a lower court's decision. The Court of Criminal Appeal conducted its own independent assessment of the bail question without deference to the reasoning or conclusion of the Supreme Court.
- The show cause and unacceptable risk tests, while distinct, involve overlapping considerations. Matters relevant to unacceptable risk were also found pertinent to the show cause inquiry, but the show cause test was recognised as broader, permitting consideration of additional factors. Satisfying one test does not automatically satisfy the other.
- Lengthy projected pre-trial detention remained a significant factor in the show cause analysis, particularly where the applicant had not previously been in custody and the charges were still at an early procedural stage.
- In assessing the strength of the prosecution case, the Court of Criminal Appeal emphasised the need for appropriate caution at the bail stage, noting the necessarily "limited examination" possible in that context and distinguishing between different charges when evaluating case strength.
- Citing Barr (a Pseudonym) v DPP (NSW), Dhanji J confirmed that the absence of prior criminal history and community ties continued to carry substantial weight. Where no prior bail concerns exist, "very little" may be required to show cause, though the ultimate determination remained a matter of broad evaluative judgment.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 49, 66, 67
- Crimes Act 1900 (NSW), ss 86, 97
- Criminal Code (Cth), s 132.3
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25, 29
- Road Transport Act 2013 (NSW)
Cases:
- Barr (a Pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232; (2021) 291 A Crim R 191
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- JM v R [2015] NSWSC 978
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Kugor [2015] NSWCCA 14
- R v Williams (Supreme Court (NSW), Emmett J, 5 December 2025, unrep)