M v R [2015] NSWSC 138
In the recent Supreme Court judgment of M v R Justice McCallum provided guidance on the subject of Show Cause events and what this means in the context of the recent amendments to the Bail Act 2013 (NSW).
In the amended act, the accused must now demonstrate, if charged with specific offences, why incarceration and being held in remand pending hearing should not be allowed; that is, “show cause why detention is not justified”. If cause is not shown then bail is refused.
Prior to judgment the legal view of the act was that the amendments create a two-step process:
- The “Show Cause” requirement – is there a reason the accused should be released?; and
- The “Unacceptable Risk” requirement – does the release of the accused pose an unacceptable risk which cannot be mitigated in the circumstances?;
In Her Honour’s reasoning, the two-steps are inextricably linked – that is, to show cause one must argue the risks associated with release.
New Approach
It would appear following Her Honour’s judgment that the new approach in Bail matters is that the accused must now demonstrate that there are no unacceptable risks for offences generally and in show cause offences the accused must demonstrate for the Court that any concern regarding bail on an offence does not result in an unacceptable risk.
Further, if there are no unacceptable risks then not granting bail would necessarily be unjustified.
