The dying presumption of innocence – Part 2

Many of us can find comfort in the thought that our society is one that believes in a person’s innocence until proven guilty. It is a presumption in our legal system. When charged with any criminal offence, the burden of proof rests on the Crown to prove your guilt beyond reasonable doubt. You are entitled to be silent and are not required to present a defence. Over recent years however, the legislature has passed laws that systematically contradict that presumption. One clear area is the current legislation dealing with Bail.

What is bail?

Bail is conditional liberty. You have been charged with an offence yet you have your freedom until you are tried for the offence(s) you have been charged with.

Bail history in NSW

For decades since the late 1970s to 2014, bail decisions in NSW were made pursuant to the Bail Act 1978 (NSW). This statute was the result of a report made in 1976 by the Bail Review Committee. This Committee had recommended a general right be created, that gave bail for all offences not punishable by imprisonment, and a presumption in favour of bail for all imprisonable offences. Over the years however, incremental changes were made to make bail harder to obtain. For example, a high profile case regarding an armed robbery, an exception to the presumption of bail for armed and violent robbery offences were made. Overtime, the presumption in favor of bail for those accused of possession or supply of commercial quantities of prohibited drugs was also removed. Amendments were made to the Bail Act to make bail harder to obtain.

After a review conducted by the NSW Law Reform Commission in 2013, the Bail Act 1978 (NSW) was replaced with the Bail Act 2013 (NSW), which came into effect on 20 May 2014. We shall explain what the presumption in favour of bail has been replaced with. The first hurdle to determining bail is if the offence you have been charged with is a show cause offence.

Show cause offences

When you are charged with a criminal offence, some offences under the Bail Act are defined as show cause offences. A show cause offence means that you, the accused, have to show why your imprisonment isn’t justified. So you could show the weakness in the Crown’s case against you, or that there are preventable delays in you getting a final hearing, or that you have urgent personal circumstances and require medical treatment. If you don’t have any sufficient justifications, you will be refused bail. You will be subjected to imprisonment, which is the penalty of last resort of our legal system. You haven’t been convicted of a single crime, you are still legally innocent at this stage. If you don’t think this is concerning, understand that it isn’t common for someone to spend over a year in jail waiting for their hearing. And don’t assume you are entitled to any form of compensation automatically either.

Section 16B of the Bail Act lists the show cause offences which include:

  • A serious indictable offence that includes sexual intercourse with a person under the age of 16 years;
  • a serious personal violence offence involving wounding or the infliction of grievous bodily harm;
  • an indictable offence that involves the unlawful possession of a prohibited firearm in a public place;
  • an indictable offence that involves the unlawful possession of a military-style weapon;
  • other offences are listed.

Show cause offences are essentially your most serious criminal offences.

Now, assuming the offence you have been charged with isn’t a show cause offence, or you can prove why your imprisonment isn’t justified, you still have more hurdles. Next step is to address any bail concerns.

Bail concerns

Section 17 of the Bail Act states:

A bail authority must, before making a bail decision, assess any bail concerns. For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will-

  1. Fail to appear at any proceedings for the offence, or
  2. Commit a serious offence, or
  3. Endanger the safety of victims, individuals or the community, or
  4. Interfere with witnesses or evidence.

When making a determination under Section 17 of the Bail Act, the bail authority can only consider a variety of matters listed in Section 18 of the Bail Act.

Such matters include:

(a)  the accused person’s background, including criminal history, circumstances and community ties,

(b)  the nature and seriousness of the offence,

(c)  the strength of the prosecution case,

(d)  whether the accused person has a history of violence,

(e)  whether the accused person has previously committed a serious offence while on bail 


There are other matters for the bail authority to consider listed in that Section. If the bail authority finds that there is an unacceptable risk of you being on bail, then bail must be refused. The bail authority can decide, if it finds there are unacceptable risks of you being on bail, to impose bail conditions that you are required to comply with. Yet even this conditional form of liberty, whilst obviously being better than imprisonment, flies in the face of the presumption of innocence until proven guilty. When you bear in mind that the high conviction rate in NSW (approximately 90% of defendants in NSW were found guilty of at least one criminal offence in 2017), and the very finite resources of Legal Aid, this does not inspire hope for those accused of criminal offences. Especially those who come from disadvantaged groups within society.


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