Supreme Court New South Wales Medium Neutral Citation: R v Greenup [2020] NSWSC 1866 Hearing dates: 16 December 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Common Law Before: Rothman J Decision: Bail Refused Catchwords: BAIL – Murder – Aboriginal offences – special considerations necessary – applicant not shown cause – unacceptable risk – bail refused. Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 17, 18 Cases Cited: Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 Category: Principal judgment Parties: Stacey Kell Greenup (Applicant) Regina (Respondent) Representation: Counsel: T Edwards (Applicant) N Angelovski (Respondent) Solicitors: Ryan & Payten Criminal Law Specialists (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2020/334174 Publication restriction: Nil Judgment 1. HIS HONOUR: Stacey Kelly Greenup applies for bail. She was arrested on 30 June 2020 and charged with murder and bail was refused in the Waverley Local Court on 1 July 2020. As a consequence of the seriousness of the crime with which the applicant is charged, the applicant is required, pursuant to s 16A of the Bail Act 2013 (NSW) to show cause as to why her continued detention is not justified. The applicant is 36 years of age. 2. The circumstances of the offence are said to be that the applicant was the instigator for a violent assault perpetrated on the victim, which assault was physically effected by six other co-offenders, whilst the applicant was nearby. The Crown alleges that the assault was retribution for an alleged sexual assault of the applicant by the victim. Police consider that the allegation of sexual assault is concocted for the purpose of distracting attention from a consensual sexual relationship between the victim and the applicant. 3. The charge of murder is preferred as a consequence of the application of the principles of joint criminal enterprise. The Crown alleges that the applicant was aware that one of the co-accused was carrying a plank of wood to be used as a weapon in the assault. As a consequence, it was within her contemplation that the assault would occasion grievous bodily harm and, as a consequence of the principles of extended joint criminal enterprise, she is liable for the death of the victim. 4. As already stated, the offence of murder, being the most serious offence in the criminal calendar, is categorised as a show cause offence, requiring the applicant to show cause as to why her continued detention is unjustified. The Crown alleges bail concerns in relation to flight or non-appearance; the commission of a further serious offence; danger to the community; and interference with witnesses or evidence. 5. The Crown points out that most of the Crown witnesses are known to the applicant. Further, the applicant's children are witnesses in the proceedings and are said to be critical to establishing the motive for the offence. 6. The Crown alleges that its case is a strong one, which relies on various witnesses who heard the applicant explain that she had been sexually assaulted by the victim and that she was organising for others to attend to assault him. Witnesses also place the applicant at the crime scene at the time of the offence. The Crown also relies upon lies, it says, were told to the police in her ERISP in relation to the foregoing aspects. 7. The applicant has a troubled history involving the use of "ice" on a daily basis; household violence; and prostitution. The applicant was subject to a Conditional Release Order for two offences of stalking/intimidation at the time of this offence and the conduct, said to give rise to the offence, is alleged to have occurred whilst the applicant was subject to that order. 8. The applicant relies upon a number of aspects, including the conditions that are proposed for her bail. Those conditions include a residence said to be well away from the scene of where her criminal offences last occurred. Requirements of show cause 1. The applicant, as a result of the seriousness of the offence with which she is charged, is required to show cause as to why her continued detention is unjustified. This requirement arises, as already stated, as a result of the operation of s 16A of the Bail Act and the prescription of murder, being an offence for which the maximum sentence is life imprisonment, per s 16B of the Bail Act. The requirement to "show cause" was the subject of comment by the Court of Criminal Appeal, where the Court said: "[51]. First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25]. [52]. Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act. [53]. Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9]. [54]. Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63]. [55]. Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act. [56]. Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions." [1] 1. Cause may be shown either by some factor outside the bail concerns or prescribed considerations in ss 17 and 18 of the Bail Act or by a combination of factors that are part of the considerations for the grant of bail ordinarily and/or outside those considerations, but relevant to the determination of whether conditional liberty is appropriate. Consideration 1. The applicant is of Aboriginal descent. The Court, as presently constituted, is mindful of the overrepresentation of the indigenous population in the prison population. In part, this is due to systemic factors related to law enforcement and the judicial system. Other aspects involve the chronic social exclusion of indigenous persons. Associated with that chronic exclusion is the significant gap in opportunities available to the indigenous population and the level of affluence enjoyed, on average, by them. 2. Restorative or therapeutic justice approaches are, in general, much more appropriate in dealing with alleged criminal conduct by persons who have suffered that kind of disadvantage than are the harsh realities of the prison system. Nevertheless, this is an extremely serious offence, assuming, without deciding, that the applicant is or will be found guilty. 3. It cannot be said that the Crown case is weak. It is possible that the applicant, assuming for present purposes that the allegation of sexual assault was concocted, did not appreciate the consequences that she was inviting. Further, it is possible, but even less so, that, notwithstanding the possession by one of the assailants of a weapon, the applicant did not contemplate the infliction of grievous bodily harm. 4. Nevertheless, it is, on the material before the Court, an inference that is available that the applicant instigated the assault and contemplated the infliction of grievous bodily harm by the assailants. The infliction of that grievous bodily harm resulted in the death of the victim. 5. Notwithstanding the suggestion and proposal that the applicant live away from Sydney, the criminal history of the applicant and the circumstances of the offending give the Court real concern as to the risk that the applicant would commit further serious offences, particularly offences of personal violence, thereby endangering the community and individuals, in particular. Further, there are serious risks associated with interference with witnesses and evidence. 6. Given that the applicant is of Aboriginal descent, the Court does not consider that the applicant poses an unacceptable flight risk. However, the other risks are unacceptable and the Court does not consider that the conditions that have been proposed, nor other conditions which are capable of being implemented, can sufficiently ameliorate those risks to allow conditional liberty to be granted. Further, the applicant has not shown cause why her continued detention is unjustified. 7. In all the circumstances, bail is refused. ********** Endnote 1. Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, per Button J at [51]-[56], with Gleeson JA and Rothman J agreeing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020