R v Weatherall [2023] NSWSC 710

Supreme Court New South Wales

Medium Neutral Citation: R v Weatherall [2023] NSWSC 710 Hearing dates: 20 June 2023 Date of orders: 20 June 2023 Decision date: 20 June 2023 Jurisdiction: Common Law - Criminal Before: Weinstein J Decision: Bail granted Catchwords: CRIME – release application – effect of s 15AAA Crimes Act 1914 (Cth) – disadvantaged Aboriginal applicant Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Judiciary Act 1903 (Cth) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: DPP v Zaiter [2016] NSWCCA 247 Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312 M v R [2015] NSWSC 138 R v Gee (2003) 212 CLR 230; [2003] HCA 12 Texts Cited: Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Local Court Bench Book Category: Principal judgment Parties: Jermaine Weatherall (Applicant) Rex (Crown) Representation: Solicitors: H Atkinson (Aboriginal Legal Service) (Applicant) J Healy (Commonwealth Director of Public Prosecutions) (Crown) File Number(s): 2023/104929

JUDGMENT – EX TEMPORE - REVISED 1. The applicant, Jermaine Weatherall, comes before the court having made an application for his release pursuant, in part, to the provisions of the Bail Act 2013 (NSW) (the Bail Act). An issue arises as to the applicability of s15AAA of the Crimes Act 1914 (Cth) (the Crimes Act), to which see below. 2. It is well recognised in this Court that bail decisions involve discretionary and evaluative judgments on a variety of factors about which, and within limits, reasonable minds may differ. Every bail application presents its own unique factual matrix and the bail authority must have regard to such facts when making a determination under the Bail Act: see DPP v Zaiter [2016] NSWCCA 247 at [31]. The rules of evidence do not apply and I may take into account any evidence or information that I consider credible or trustworthy: see s 31 of the Bail Act. 3. The alleged facts are as follows. 4. On 8 July 2022, the complainant's mother discovered the complainant engaging in a conversation of a sexual nature over the phone. When she reviewed the phone, she discovered sexually explicit messages and videos that allegedly had been exchanged between the applicant and the complainant, including messages where the applicant allegedly requested and received sexually explicit videos involving the complainant's dog. The offending allegedly occurred on 7 June 2022. 5. Police were notified the next day. On 13 October 2022, police attended the residence of the applicant and seized an iPhone. Subsequent forensic analysis revealed sexually explicit messages and videos, allegedly between the applicant and the complainant, as well as other images on the device, some of which was child abuse material unrelated to the complainant. 6. The applicant was arrested and charged on 13 October 2022. He was granted conditional bail at Inverell Local Court that day. He has been bail refused since 23 November 2022, i.e. for approximately 6 months. The applicant was on bail for these and some other offences (which will shortly be withdrawn). He then failed to report to Woolgoola Police Station in accordance with his bail conditions, from 12 November 2022 to 22 November 2022. When he was found and arrested on 22 November 2022, further child abuse images were apparently found on his phone. The applicant was charged, but that charge is to be withdrawn. 7. Mr Weatherall is charged with one count of use carriage service to engage in sexual activity with a child contrary to s 474.25A(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code) for which there is a maximum penalty of 20 years imprisonment and a minimum term of imprisonment of 5 years, and one count of possess/control child abuse material using carriage service contrary to s 474.22A(1) of the Criminal Code, for which the maximum penalty is 15 years imprisonment. The former falls within the definition provided by s 15AAA(1)(a) of the Crimes Act, being an offence described at item 13 of column 1 of s 16AAA of the Crimes Act, such that the applicant must not be granted bail unless the bail authority is satisfied that circumstances exist to grant bail. Section 15AAA applies only to the former of the offences to which the applicant has pleaded not guilty, and does not apply to the latter.