R v Walton [2021] NSWDC 182

District Court New South Wales

Medium Neutral Citation: R v Walton [2021] NSWDC 182 Hearing dates: 27 April 2021 and by submissions Date of orders: 27 April 2021 Decision date: 27 April 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: I grant the accused bail with conditions as outlined in paragraph [17]. Catchwords: Criminal Law – bail application – show cause offence – significant delay – strength of Crown case – oath against oath - detention not justified Legislation Cited: Bail Act 2013 Crimes Act 1900 Cases Cited: R v Farrell [2016] NSWSC 1278 R v Daniel [2014] NSWSC 1968 R v Cain (No 1) [2001] NSWSC 116 Category: Procedural rulings Parties: Regina (Crown) Gary Walton (Accused) Representation: Solicitors: Mr Thomas (DPP) Mr Blomfield File Number(s): 2020/00136689 Publication restriction: Statutory non-publication order in relation to the names of the two complainants.

Judgment 1. HIS HONOUR: Gary Lesley Walton applies for bail. He was arrested on 7 May 2020. On 8 May 2020 he was refused bail by the Local Court. The applicant relies upon s 74(3)(c) of the Bail Act in that there is a change of circumstances. It is submitted that the time the applicant has served in custody is longer than was anticipated at the initial bail hearing. The premise that a change of circumstances must be demonstrated is a false premise. 2. Section 74 is headed, "Multiple release or detention applications to same Court not permitted." Subsection (1) refers to, "A Court that refuses bail for an offence." The Local Court refused bail. The District Court has not. Second or subsequent release applications after a refusal of bail are not permitted in the same Court unless there are grounds for a further application. 3. Section 74 has no application to this bail application because the District Court is not the same Court that refused bail. The applicant has misconceived s 74. In my view the bail application to this Court is to be dealt with as a new hearing. However, if I am wrong about that a change in trial date since the refusal of bail can constitute a change of circumstances: R v Farrell [2016] NSWSC 1278 at [8]; R v Daniel [2014] NSWSC 1968 at [9]. 4. Pursuant to s 61 of the Bail Act, a Court may hear a bail application for an offence if proceedings for the offence are pending in the Court. The accused was arraigned on a 15 count indictment on 11 December 2020. He pleaded not guilty to the charges. The offences are pending in this Court. Jurisdiction to hear a bail application is made out. 5. I have read the Crown case statement comprising 17 paragraphs which is undated. It is exhibit 1 in the proceedings. In short compass, serious allegations are made against the applicant. There is a single count for the complainant, AP. The applicant was in a relationship with her mother. He was acting as the stepfather. It is alleged he pulled his pants down and asked her to suck his penis. She declined. AP's sister, SP, was also the stepdaughter of the applicant. There are 14 counts that pertain to her. The allegations are that the applicant had sexual intercourse with the complainant by placing his penis in her mouth and ejaculating between the ages of 9 and 14 (counts 2, 3, 5, 6, 8, 10 and 14), as well as a number of counts of indecent assault involving groping of her breast (counts 4, 7, 9, 11, 12, 13 and 15). Some of the offences are contrary to s 66A(1) of the Crimes Act and carry a maximum penalty of life imprisonment. 6. The applicant is in a show cause position. The onus is on him to show cause why his detention is not justified. 7. The following has been filed on behalf of the applicant; 1. application for bail 2. affidavit of Linda Marie Hardwick sworn 22 December 2020 (Exhibit A) 3. proposed conditions of bail. 1. I take into account the following matters in the determination of show cause.