In NSW if a client is charged with a serious drug offence, then it is likely that it is a “show cause” (s16A Bail Act 2013) offence. The following are CRUCIAL points the lawyer should submit to the Court on a bail application (if applicable):
The Accused has shown cause (on the balance of probabilities: s32 Bail Act) as follows:-
The strength of the prosecution case is not strong. There is a distinct lack of physical and telephone intercept surveillance evidence apart from surveillance on the date of the delivery. There is no large amount of cash or drugs found at the home of the Accused.
The Accused is presumed innocent and has not been convicted. Due to the normal delays in trial proceedings, the Accused is likely to spend in excess of 1 year, and possibly 18 months to 2 years in custody bail refused.
The Accused will lose his job should he remain in custody.
The Accused will not be able to pay off his mortgage should he remain in custody. This may mean that his only significant asset will be at risk of repossession by the mortgagee.
The Accused can offer security of his house. This is his only significant asset.
Unacceptable Risk of Flight is Mitigated as follows:-
The Accused is an Australian citizen
The Accused has no significant ties overseas
All of the Accused immediate family are in Australia.
The Accused has nil/little criminal history.
The Accused will report daily to police
The Accused will agree to a night curfew and not to be absent from his premises unless at work or going to/from work
The Accused will surrender his passport and will not go within 500m of any point of departure from Sydney Metropolitan
The Accused will not access any mobile phone, Internet or emails.
The following nsw caselaw extracts should also be provided to the Court:
Director of Public Prosecutions (NSW) v Tikomaimaleya  NSWCA 83
Show cause and unacceptable risk tests in the Bail Act
If a person charged with an offence of a type listed in s 16B succeeds in showing cause why his or her detention is not justified pursuant to s 16A(1), it is necessary for a bail authority to consider whether there is an “unacceptable risk” that the person will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses: s 19(2). Bail must be refused if the bail authority is satisfied that there is an unacceptable risk: s 19(1). If there are no unacceptable risks, bail must be granted, with or without conditions; or the person may be released without bail; or bail may be dispensed with: s 20.
Before making a bail decision in terms of whether or not there are any unacceptable risks (as defined in s 19(2)), the bail authority must assess any “bail concerns” (s 17(1)). Bail concerns are defined in s 17(2) in a similar fashion to the definition of “unacceptable risk” in s 19(1): they are concerns that the accused person if released from custody will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses.
In the assessment of bail concerns, a bail authority is to consider the various matters listed in s 18, and only those matters.
Two matters may be noted and emphasised from this overview of the provisions of the Bail Act 2013. First, if the offence in question is a “show cause” offence, there is a two-step process: causep must first be shown as to why detention is not justified under Div 1A of Pt 3 and, if it is shown, the bail authority must then consider the “unacceptable risk” test in Div 2 of Pt 3. Secondly, there is an exhaustive list of matters in s 18 that must be considered in relation to the latter but the Bail Act 2013 does not prescribe what must or might be considered in relation to the former.
The Director drew the Court’s attention to the judgment of McCallum J in M v R  NSWSC 138. Her Honour was dealing with a bail release application by a person charged with a number of offences, at least one of which (murder) was a show cause offence. The matter came before her Honour in the Bails List some two weeks after the amendments made by the Bail Amendment Act came into force.
Her Honour noted the various provisions within Div 1A and Div 2 of Pt 3 of the Act, observing (at -) that the “apparent simplicity of a two-stage approach is illusory” and that “it is difficult to conceive how an applicant could show cause without addressing any relevant bail concerns”. She continued (at ):
“The issue whether an applicant has shown cause in my view must inevitably be informed by the outcome of the risk assessment, since the Act contemplates that the detention of a person who poses an unacceptable risk of the kind identified is justified. Conversely, it is difficult to conceive of a finding that an applicant had failed to show cause in circumstances where there was no unacceptable risk. The absence of any unacceptable risk would, I think, inevitably point to the conclusion that the detention was not justified, bearing in mind the common law principles to which I have referred.”
McCallum J acknowledged that s 16A must be construed as having some work to do. She explained:
“ … In my view, the section should be understood to have the object of instructing the bail authority that, in the case of a show cause requirement, the circumstance that triggered the requirement is likely to inform the assessment of any bail concerns and the evaluative judgment as to the acceptability of any risk established. In some instances, the circumstance giving rise to the show cause requirement is in itself likely to reveal a bail concern. For example, s 16B(1)(d) specifies, as show cause offences, a series of offences relating to firearms, pistols, prohibited weapons and the like. Similarly, s 16B(1)(f) specifies as show cause offences offences under the Drug Misuse and Trafficking Act 1985 (NSW) involving the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug.
The Act guides the court that it must have regard to the common or notorious features of such offences. For example, a strong Crown case as to the commission of an indictable offence involving the unlawful possession of a pistol in a public place would guide the Court in the assessment of a bail concern as to the safety of the community. Similarly, a strong Crown case alleging an offence under the Drug Misuse and Trafficking Act of the kind to which I have referred would guide the Court as to the likelihood of an applicant re-offending, the insidiousness of an addiction to some prohibited drugs, such as Ice, being a matter of notoriety.
Importantly, I would construe s 16A as imposing on an applicant the task of persuading the Court that any such obvious bail concern did not give rise to an unacceptable risk of the kind specified in the Act. In saying so, I do not mean to suggest that the Act imposes any formal onus of proof in the traditional sense. The Act makes it clear in s 32 that any matter that must be decided by the bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities, but the rules of evidence do not apply in that task. Rather, the bail authority may take into account any evidence or information it considers credible or trustworthy in the circumstances: see s 31 of the Act.
But the Court should not approach the show cause requirement, in my view, on the ground that an applicant must go further in order to show cause why his or her detention is not justified or bears any higher onus than to persuade the Court that there is no unacceptable risk having regard to the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A.”
We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.
It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment.
Director of Public Prosecutions (NSW) v Tony MAWAD  NSWCCA 227
The Director submitted that Mr Mawad had failed to show cause why his detention was not justified. The Director contended that the matters pointed to on behalf of Mr Mawad are “common features” and they “should [not] be endorsed as sufficiently special to overcome the show cause requirement on a charge as serious” as that which he faces. In so submitting the Director relied on the following passage from Director of Public Prosecutions (NSW) v Brooks  NSWCCA 190 at  per R.A. Hulme J:
“As was submitted by the Crown, there is nothing particularly special or unusual in what the respondent has put before the Court. Age, lack of criminal antecedents, ties to the community and strong family support do not amount to showing cause. This is particularly so when one has regard to the seriousness of the offence with which the respondent has been charged and the apparent strength of the Crown case. In view of the conclusion which we have reached, it is not necessary to consider the question of unacceptable risk.” (emphasis added)
Brooks was a detention application. The Respondent had been charged with murder.
I do not understand Brooks to have stated that either “special or unusual” or “particularly special or unusual” circumstances must be demonstrated before cause can be shown. If it did then I disagree. This Court has no authority to add glosses to statutory tests. This is particularly so when s 22(1) of the Act specifically imposes a requirement to establish “special or unusual circumstances” when an appeal is pending in this Court or from this Court to the High Court against a conviction on indictment or a sentence imposed after conviction on indictment. In such case, the establishment of special or unusual circumstances is deemed to satisfy the show cause test where it is otherwise applicable (s 22(2)). These provisions are inconsistent with any suggestion that in all cases where the show cause test applies, special or unusual circumstances must be shown (JM at  to  per Garling J; see also El-Hilli v Melville v R  NSWCCA 146 at  per Hamill J).
Equally I do not understand Brooks to be stating that “age, lack of criminal antecedents, ties to the community and strong family support” could never amount to showing cause, only that they did not amount to cause in that case. Again if Brookes did state that then I disagree for the same reason. Each case must turn on its own circumstances. A test posited in terms as to whether detention is “justified” or not necessarily defies any judicial attempt to circumscribe the circumstances in which it can be met.
It is clear that the relative strength of the Crown case is relevant to whether cause has been shown but it is not determinative (JM at ). In this case and notwithstanding the strength and seriousness of the Crown case I considered that Mr Mawad had shown cause. The evidence as to the particular vulnerability of his family in his absence was compelling.
R v Xi  NSWSC 1575
The applicant was taken into custody on his arrest on 25 May 2015 and has been incarcerated since that time. The case is still before the Local Court and subject to an order that the brief of evidence be served by the prosecution on or before 5 November 2015. It appears that the brief will not be served by that time, and that the police will not comply with the brief service orders. However a letter from the officer in charge of the police investigation suggests that the outstanding parts of the brief will “be served prior to December 2015” and that “three quarters of the brief” has already been served.
In view of what is known of the lists in the courts in which the committal proceedings and trial will take place, it is unlikely that the applicant will receive a trial date before the second half of 2016. If bail is refused, the applicant will spend well in excess of one year in custody pending the resolution of these criminal proceedings. It may be that the remand period will approach 18 months or 2 years.
That is a significant delay and one which bears upon the question of whether the applicant has shown cause pursuant to section 16A. Nothing in the many reforms to the bail legislation since 2001 changes the force of the remarks of Sperling J in Cain (2001) 121 A Crim R 365:
“The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights”.
See also his Honour’s comments in Iskandar  NSWSC 7; 120 A Crim R 302.
The delay is also a relevant consideration if I come to consider the bail concerns raised by the Crown and whether those concerns are “unacceptable risks” for the purpose of s 19 of the Bail Act. The length of time that an applicant for bail is to spend in custody is a matter specifically referred to in the exhaustive list of factors to be considered in deciding whether any bail concern identified under s 17 constitutes an unacceptable risk under s 19: see section 18(1)(h) Bail Act
I agreed with the observation of Garling J in JM v R at  that “the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists”. Nevertheless, the cases that have been decided by appellate courts show that the show cause requirement establishes a significant hurdle to an applicant seeking bail when s 16A is engaged.
I am satisfied that the medical condition, severe disabilities and special needs of the applicant’s son, taken in combination with the other matters to which reference has been made, satisfies the show cause requirement. While [Child’s name – Redacted]’s grandparents are doing their best, it is clear that they are struggling and that the applicant is the person in the best position to care for the child.
In reaching the conclusion that the applicant has shown cause, I have taken into account the strength of the Crown case, the inevitability of a substantial full-time gaol sentence if any of the charges are established and risks that the prosecution has identified in granting the applicant bail.
Lin v Director of Public Prosecutions (Cth)  NSWSC 312
In submitting that his client had shown cause, Mr Korn relied on the combined effect of three matters, namely, the circumstance of Mr Lin’s family, the likely period of pre-trial custody and the strength of the bail proposal.
In relation to the first matter, I have outlined the particular vulnerability of Mr Lin’s family, especially his daughter, above. His wife and daughter have a compelling need for his presence. The existence of such compelling family circumstances can demonstrate cause (Mawad at ).
In this case, the period that Mr Lin is likely to spend from this point until the time of his trial, namely just over 12 months, is not of itself a matter that would justify a conclusion that cause has been shown especially given the seriousness of the charge that he faces and the strength of the CDPP’s case. However that should be considered in the light of the events from January 2016 to this time. He was first released on bail for a period of 5 months and complied with his bail conditions. Otherwise the CDPP appears to have struggled to have identified the appropriate charge notwithstanding that the laying of more serious charges was the matter that lead to a change in Mr Lin’s bail status.
Mr Lin’s compliance with the terms of his bail during the period January to June 2016 is of particular significance to a consideration of the strength of his bail proposal. His actions during this time appreciably reduce what would otherwise be a significant risk of his absconding. When that is considered with the level of oversight provided by the proposed bail conditions it follows that his bail proposal is strong.
Of itself, the likely period of pre-trial custody that Mr Lin will serve does not establish cause. However I accept that his family circumstances combined with the strength of the bail proposal, when considered in light of the events of 2016, warrant a conclusion that he has shown cause why his detention for a period likely to exceed 12 months until his trial is not justified.
R v Goutounas  NSWCCA 40
In early 2017, as part of an undercover operation spanning more than one year the NSW Police and the Australian Intelligence Commission gathered substantial evidence regarding the bail applicant, Mr Goutounas. The evidence showed that he was involved in a conspiracy to import drugs, provide money to finance drug importation and that he possessed a commercial quantity of drugs for sale.
On 2/11/17 Mr Goutounas was arrested in South Australia and charged with 2 counts of organizing to import a commercial quantity of drugs – being methamphetamine from Mexico and cocaine from Columbia.
On 9/11/17 similar charges were laid in NSW. Mr Goutounas was extradited to NSW and the Commonwealth DPP withdrew the SA charges. Mr Goutounas was refused bail on the NSW changes.
On 1/12/17 Mr Goutounas made an application for a bail review in the Local Court. As the alleged crimes might potentially result in a life sentence, he was not able to convince the Magistrate that under s17 & 18 of the Bail Act he was not an unacceptable risk nor could he ‘show cause’ why he should not remain in custody. His bail review failed.
Mr Goutounas appealed to the Supreme Court for a bail review of the Local Court decision and was granted strict conditional bail by Justice Hamill. He was unable to meet one of the bail conditions requiring surety of $1.5M (combined monies from Mr Goutounas and his family). He therefore remained on remand in goal.
The prosecution made an application to the CCA for a fresh bail determination (de novo) to revoke the Supreme Court bail and keep Mr Goutounas in gaol. New evidence was brought forward by his lawyers to meet surety. The matter came before Judges Simpson, Fullerton and McCallum of the Court of Criminal Appeal (CCA).
The CCA said that the obligation to ‘show cause’ was determined by the following principles:
• the question of ‘show cause’ is separate from the question of unacceptable risk
• the Bail Act does not provide guidance on how to assess ‘show cause’
• there may be a substantial overlap between the factors that ‘show cause’ and the factors for ‘unacceptable risk’
• ‘show cause’ may be one powerful factor or a combination of factors
• there is no requirement to show exceptional or special circumstances in order to ‘show cause’
• although there are many ‘show cause’ bail decisions in the Supreme Court, most bail decisions are about evaluating individual case facts and not determining legal principles. There are, therefore, few legal precedents the courts can refer to.