Brooks v R [2021] NSWCCA 195

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brooks v R [2021] NSWCCA 195 Hearing dates: 11 August 2021 Date of orders: 11 August 2021 Decision date: 18 August 2021 Before: Leeming JA; RA Hulme J; Campbell J Decision: Bail granted subject to conditions: see [38] below Catchwords: BAIL – applicant charged with offences none of which was a "show cause" offence – applicant citizen of New Zealand – aspects of Crown case strong, other aspects weak - whether unacceptable risk of applicant failing to appear – where applicant would be in custody for at least 17 months prior to trial – whether stringent conditions relating to reporting and surrender of passport would address bail concerns – conditional bail granted Legislation Cited: Bail Act 2013 (NSW), ss 18, 19(1), 19(2), 20(1)(a), 67(1)(e) Crimes Act 1900 (NSW), ss 61I, 61J(1), 61KC, 86(1)(b), 91P(1) Category: Procedural rulings Parties: Raymond Anthony Brooks (Applicant) Regina (Respondent) Representation: Counsel: E Anderson (Applicant) G Newton (Respondent)

Solicitors: Sydney Criminal & Traffic Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2021/00175294 Publication restriction: These reasons will not be published on CaseLaw until the conclusion of the criminal proceedings.

Judgment 1. THE COURT: Mr Raymond Brooks was charged with sexual intercourse without consent and aggravated sexual assault, following events partly captured on CCTV early on the morning of 22 March 2021. He was refused bail by the police and by the Local Court shortly thereafter, and, on 9 June 2021, by the Supreme Court. He has been in custody since 22 March 2021. He has exercised his right to apply to this Court pursuant to s 67(1)(e) of the Bail Act 2013 (NSW). 2. The parties exchanged full written submissions in advance of the hearing, and, in particular, supplied a USB stick containing the CCTV and mobile phone recordings which are central to the Crown case. For that reason, the Court was able to make orders granting bail subject to conditions shortly after the conclusion of the hearing, in accordance with the requirement in s 71 that a bail application is to be dealt with as soon as reasonably practicable. These are our reasons for those orders. As advised at the hearing, they will not be published on CaseLaw until the conclusion of the criminal proceedings. 3. None of the offences with which the applicant has been charged is a "show cause" offence. Accordingly, his application falls to be determined pursuant to Division 2 of Part 3 of the Bail Act. Thus it is necessary to assess any bail concerns, to consider the matters contained in s 18 of the Act, and only those matters, and then to ask whether there is an unacceptable risk that the applicant, if released from custody, will fail to appear at trial, or commit a serious offence, or endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence: s 19(2). If there is an unacceptable risk, bail must be refused: s 19(1). If not, then bail must, (relevantly for present purposes) be granted with the imposition of conditions: s 20(1)(a).