Show Cause – The second category of reverse onus is that where an Accused has been charged with one of a range of specific offences, then bail shall be refused unless the Accused can “show cause” why it would be unjust to remand him or her in custody.
The Bail Act 1977 (Vic), s.4(4) provides that where an Accused is charged with –
- An indictable offence alleged to have been committed whilst the Accused was awaiting trial for another indictable offence;
- Stalking and –
- Within the last 10 years was found guilty of the same offence or any offence involving actual or threatened violence; or
- The court is satisfied on a previous occasion the Accused used or threatened to use violence on the current complainant (even if the Accused was not found guilty of that prior incident);
- Breach of an intervention order in the course of which the Accused used or threatened violence and –
- Within the last 10 years was found guilty of a violent offence; or
- The court is satisfied on a previous occasion the Accused used or threatened to use violence on the current complainant (even if the Accused was not found guilty of that prior incident);
- Aggravated burglary or other indictable offence, and involving actual or threatened use of a firearm, offensive weapon or explosives;
- Arson causing death;
- Trafficking less than a commercial quantity, or cultivating less than a commercial quantity, or trafficking drugs to a child, or conspiracy to commit any of these offences; or
- An offence against the Bail Act
then the court shall refuse bail, unless the Accused can show cause why his or her detention would not be justified.
The Bail Act 1977 (Vic) does not define what “show cause” means although there is a considerable body of case law on this issue. It is clear that a combination of factors can result in the Accused showing cause.
In Re Asmar [2005] VSC 29 November 2005, Maxwell J discussed the relationship between “show cause” and “unacceptable risk”, stating that
“… the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or the negative. If answered in the affirmative, bail should be granted. If answered in the negative bail must be refused. There is no second step”.
This means that in determining “show cause”, the unacceptable risk is also evaluated – it should not be a subsequent separate consideration.
