Director of Public Prosecutions (NSW) v Tikomaimaleya

The Director of Public Prosecutions (NSW) applied to the Court of Appeal for leave to appeal against a decision of a District Court judge who had granted bail to the respondent, Tikomaimaleya, who had been found guilty of serious sexual assault following a jury trial. The Director contended that the respondent had failed to show cause why his detention was not justified, and that the judge had erred in granting bail.

The Court of Appeal was required to determine whether the District Court judge had correctly applied the provisions of the *Bail Act 2013* (NSW) in granting bail to the respondent. Specifically, the court had to consider the two-stage approach mandated by the Act for "show cause" offences, which involves first assessing whether the accused has shown cause why their detention is not justified, and then, if cause is shown, assessing whether there is an unacceptable risk that the accused will fail to appear, commit an offence, endanger safety, or interfere with witnesses. The court also considered the proper procedure for bail applications following a District Court decision, noting that under s 66 of the *Bail Act 2013*, such applications should now be heard by the Supreme Court, not referred to the Court of Appeal.

The Court of Appeal found that the District Court judge had erred in conflating the "show cause" test with the "unacceptable risk" test. The judge had granted bail after the respondent presented some evidence, but had not properly considered whether that evidence discharged the onus on the respondent to show cause why his detention was not justified. The court emphasised that for a "show cause" offence, the accused must first satisfy the court that there are reasons to depart from the presumption of detention. Only after this threshold is met can the court proceed to consider the unacceptable risk test.

Ultimately, the Court of Appeal concluded that the respondent had not shown cause why his detention was not justified, and therefore, bail should have been refused. Leave to appeal was granted, the appeal was upheld, and bail was refused.