As a senior lawyer practicing in Queensland, I frequently encounter cases involving domestic violence and the intricate legal framework surrounding it. One crucial concept that often arises in such cases is "show cause bail." In this blog post, we will delve into the legal concept of show cause bail and examine its relevance to the criminal charge of breaching a domestic violence order (DVO) in Queensland.
Presumption of Innocence and Bail
Before delving into show cause bail, let's first establish the importance of the presumption of innocence. Under the Australian legal system, every person is presumed innocent until proven guilty. This principle forms the bedrock of our justice system and ensures fairness and protection for individuals facing criminal charges.
When a person is charged with an offence, they may be taken into custody or released on bail. Bail refers to the temporary release of an accused person, pending their trial or other legal proceedings. It allows individuals to maintain their freedom unless there are compelling reasons to justify their detention.
Show Cause Bail: The Burden of Justification
Show cause bail is an important aspect of the bail process in Queensland. Unlike ordinary bail, where the accused person only needs to show they are not an "unacceptable risk," show cause bail places an additional burden on the accused.
Essentially, show cause bail requires the accused person to demonstrate why their continued detention is not justified in the circumstances. It reverses the usual presumption of bail and places the onus on the accused to present compelling reasons why they should be granted bail.
Domestic Violence Order (DVO) Breaches and Show Cause Bail
In the context of breaching a DVO in Queensland, show cause bail assumes even more significance. A DVO is a court order designed to protect individuals who are or have been subjected to domestic violence. It imposes restrictions on the respondent, prohibiting them from engaging in certain behaviours or approaching the protected person(s).
When a person is charged with breaching a DVO, the court takes the matter seriously due to the potential harm and trauma associated with domestic violence.
Where a person is charged with breaching a domestic violence order and in the last 5 years they have a conviction for breaching a DVO then the law automatically puts that person in a position of show cause. We have a whole article on Breaching a Domestic Violence Order for the Second Time in Queensland.
To secure bail in the case of a DVO breach matter where that person has a previously been convicted of the same offence, the accused must provide compelling reasons to convince the court that their continued detention is not necessary. They must demonstrate that they do not pose a risk to the protected person(s) or the community at large and that they are likely to comply with the conditions imposed by the court.
Factors Considered in Show Cause Bail Applications
When assessing a show cause bail application for a DVO breach, the court considers several factors, including:
- Nature and seriousness of the breach: The court will assess the circumstances surrounding the alleged breach, considering factors such as violence, coercion, or disregard for the court order.
- Where the accused will live. The
- Risk of harm: The court will evaluate the potential risk the accused poses to the protected person(s) or the community if released on bail. This may include considering any history of violence, threats, or previous breaches.
- Likelihood of compliance: The court will examine the accused's history of complying with court orders and bail conditions. Evidence of cooperation with previous orders can be influential in persuading the court to grant bail.
- Sureties and conditions: The accused may propose sureties (individuals who guarantee their compliance with bail conditions) or suggest additional conditions that mitigate the risk associated with their release.
Conclusion
The legal concept of show cause bail is a critical element in Queensland's criminal justice system, particularly in cases involving breaches of domestic violence orders. It aims to strike a balance between protecting the rights of the accused and ensuring the safety and well-being of victims of domestic violence.
As lawyers, our duty is to advocate for our clients while respecting and safety of all parties involved. Navigating the complexities of show cause bail in DVO breach cases requires a thorough understanding of the law, a careful examination of the facts, and persuasive advocacy.
