Supreme Court New South Wales Medium Neutral Citation: McConnachie v Director of Public Prosecutions (NSW) (No 2) [2019] NSWSC 1918 Hearing dates: 27 November 2019 Date of orders: 27 November 2019 Decision date: 27 November 2019 Jurisdiction: Common Law Before: Hamill J Decision: Conditional bail granted Catchwords: CRIMINAL LAW – bail – change of circumstances since bail refused – extensive delay – where volumes of material served after matter listed for trial – defence application to vacate trial date refused – prosecution application to vacate trial date granted – inability of applicant to access voluminous material in prosecution brief – show cause requirement – bizarre and disturbing sexual offences – four complainants – degrading and humiliating conduct – issue of consent – where applicant's knowledge of brief critical to proper presentation of his case – tricky case for trial lawyers – prosecution case not necessarily overwhelming – previous bail breaches – complainants' fears – whether stringent bail capable of mitigating risk Legislation Cited: Bail Act 2013 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 McConnachie v Director of Public Prosecutions (NSW) [2019] NSWSC 318 Category: Principal judgment Parties: Marc McConnachie Director of Public Prosecutions (NSW) Representation: Counsel: P.A Leask (Respondent) Solicitors: Conditsis Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/00372342 Publication restriction: This judgment has been anonymised in accordance with the NSW Supreme Court anonymisation policy. EX-TEMPORE Judgment (REVISED) 1. On 26 March 2019 I refused a bail application by Mr McConnachie. The judgment delivered on that date, and which is currently subject to publication restrictions, is McConnachie v Director of Public Prosecutions (NSW) [2019] NSWSC 318. It will be annexed to the current remarks or judgment as annexure A (and will be published on Caselaw after the criminal proceedings are complete). 2. That judgment sets out, in some little detail, the somewhat remarkable circumstances surrounding the current application. It deals, in particular, with the nature of the bizarre sexual offending, as alleged, and makes an assessment of the strength or otherwise of the prosecution case. The application was on that earlier occasion rather delicately poised. The applicant needed (and needs) to show cause why his detention is not justified for the reasons set out in that judgment; that is, in short, that a number of offences of sexual assault were allegedly committed whilst he was on bail for another offence. 3. At that time there had already been an extensive delay between the charging of the applicant and the bail application. There was at least some question mark over the strength of the prosecution case. I rejected a submission that the prosecution case was weak, but I did accept that it was not an overwhelming case. On the information then known, some of which came directly from the Chambers of the Chief Judge of the District Court, it was anticipated that there would be a trial this year. I indicated that if that was not the case, given the delay that had already impacted on the applicant, he would have leave to approach my Associate directly and have the matter relisted before me. That has happened and that is why we are here today. 4. The applicant was arrested on 23 February 2017 and has been in custody since then. He was charged with a number of sexual offences relating to four separate complainants. The offending is, on its face, disturbing and bizarre. In delivering the judgment handed down on 26 March 2019 I indicated that the sexual fantasies and activities in which the applicant and some of his sexual partners engaged, was reminiscent of the writings of the Marquis de Sade. [1] 5. In any event, notwithstanding what might be considered the misogynistic and depraved nature of the allegations which included, amongst other things, spitting, urinating, choking and something called hooking, I made the point that in the libertine society in which we live such activity is not illegal unless it is undertaken without consent. There is, in the present case, evidence that some or more of the complainants' consented, perhaps begrudgingly, but nevertheless were consenting to at least some of the activity which others might find humiliating, degrading and bizarre. 6. There is, as I saw in the material on the last occasion, a body of evidence in the form of text messages in which at least one of the complainants most assuredly indicated a willingness, if not enthusiasm, to engage in the kind of behaviour that, on the evidence before me, the applicant plainly enjoys. 7. However, three of the four complainants say that they did not consent to those matters which are now subject to a very large number of charges alleging sexual offending. I won't say any more about the case at this stage but the details are set out both in the material tendered on the last occasion, and to a lesser extent the material tendered today, but also in my earlier judgment. 8. In any event, after the matter was dealt with by me - the release application declined and bail refused - the matter was listed for trial, as I had been assured it would be. It was listed to commence on 28 October 2019 as a special fixture in Sydney. Then, to what seems is to have been the astonishment of both the prosecuting authority and the defence lawyers, a further 15,000 pages of brief material was provided by the investigating police. The result of that, unsurprisingly, was that the applicant made an application to vacate the trial date. That application came on before his Honour Judge Buscombe on 9 October 2019. His Honour was obviously well apprised of my judgment and refers to it on a number of occasions in his own carefully considered judgment. He was also aware of the prejudice to the accused flowing from this late service of such a volume of material, but was also conscious of the interests of the complainants and the community to have the trial dealt with expeditiously and the fact that the applicant had been in custody for such a long time. His Honour's solution was to delay the commencement of the trial by a period of seven days and assume that the parties would "apply themselves assiduously to preparing the matter." The application by the applicant to vacate the trial date was otherwise refused. 9. What then happened – just a few weeks later – is that the prosecution realised it could not prepare itself for the trial given what I take to be, reading between the lines, a change in the legal personnel conducting the trial, but more particularly the extensive additional material that had been provided by police. That material, the detail of which is not really known to me, appears to be material that could be of some assistance to the prosecution in proving its case. It may also give some further strength to the applicant's submissions part of which is that there has been some form of contact, not to say collusion, between some of the complainants. It seems to be beyond dispute that there has been at least some contact between the complainants and there was evidence of that before me on the last occasion and that, in part, informed the assessment I made of the strength of the prosecution case. 10. In any event, the prosecution brought a notice of motion to vacate the trial date before Judge Syme in Court 3.1 in the Downing Centre with a notice of motion to vacate the trial date. That happened on 21 October 2019. An affidavit in support of that notice of motion was provided by a solicitor in the employ of the Director of Public Prosecutions. Her Honour Judge Syme granted the prosecution's application and vacated the trial date. The trial was set down for hearing on 27 July 2020 with an 8-week estimate. 11. That change in the trial date plainly fits into the kind of scenario that I contemplated when I gave the applicant leave to bring the case back before me and satisfies the requirement in s 74 of the Bail Act 2013 (NSW), that circumstances relevant to the grant of bail have changed since the previous application was made: see s 74(3)(c). The section provides that unless there is some change of circumstances the Court is to refuse to hear a second release application. 12. The prosecution today has very fairly and properly and, I suppose given what I said last time, inevitably conceded that the s 74 issue must be determined in favour of the applicant and so I can proceed to hear the application on its merits. 13. The question then becomes initially whether the applicant has shown cause why his detention is not justified. There are a multitude of factors that come into play when considering that question, many of which I considered on the last occasion. There are matters going both ways. The fears of the complainants as expressed in the material before me appear to be real. There is a real prospect if the applicant is convicted that he will serve a substantial gaol sentence well beyond the period of remand. There is, as I said on the last occasion, a body of evidence which overwhelmingly seems to be capable of establishing that the acts alleged by the prosecution actually happened. 14. But the two major factors relied on today by the applicant and his lawyers are the extensive delay and the problems that have attended the applicant being able to prepare himself for trial whilst in custody. 15. By the time the matter comes on for trial in July of next year, or at least by the time the jury is out considering its verdict, the applicant will have been in custody for some three and a half years. Notwithstanding some of the things said in some of the judgments of the Court of Criminal Appeal, none of which sets any binding precedent as to what is and what is not acceptable, in my view, a delay of three and a half years between charge and trial is unacceptable in a civilised society that purports to proceed on the basis that accused people are presumed to be innocent. 16. But that is not the only factor that leads me to conclude that the applicant has shown cause why his detention is not justified. The second is set out carefully in the affidavit of Ms Bailey, the applicant's solicitor, and then fleshed out by a number of annexures to her affidavit. The prosecution brief is a voluminous one. I am told that in addition to the 15,000 pages dumped on the parties by the police shortly after last bail application, there has now been a further 45,000 pages provided which both parties have to try to get their heads around. 17. In the meantime, the applicant has made multiple attempts with the corrective services officers to access the brief. Because of the highly sensitive nature of the brief he does not want paperwork setting out the details to be at the gaol. As I said on the last occasion, that is an understandable position to hold. There is some evidence indeed that some of the details got out at one stage and he was subject to some form of intimidation or violence as a consequence. So it is unsurprising that the applicant does not want the paper brief to be provided to him in gaol. 18. So, what the applicant's solicitor did was to put the material onto a USB stick and make an application that the applicant be provided with a computer facility and private space where he could start to acquaint himself with the material to be presented against him at trial so that he might answer it. I won't go through in detail the attempts that he has made, but it is set out carefully and helpfully in the affidavit of Ms Bailey. It is fleshed out by a bunch of emails sent by the applicant's solicitor and I am satisfied that the applicant at this stage has simply been unable to start to prepare himself for a trial in which he faces the prospect of significant penalty if he is convicted; and also a trial where it is his personal knowledge of the material that will be critical to his lawyers working out the best approach to conduct his defence which will be, to put it mildly, tricky. 19. I am satisfied that those two matters – that is to say the three-and-a-half-year delay between charge and verdict and the inability of the applicant to prepare himself for trial – satisfy the show cause requirement that arises as a result of the alleged breach of bail constituted by, if memory serves, seven of the sexual assault offences. I note that the remaining offences, as serious as they are, do not have with them the show cause requirement. But as I indicated in the last judgment that is really a moot point because he must show cause in relation to those particular seven matters. 20. As the Court of Criminal Appeal's decision in Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 shows, [2] and as other utterances by the Court of Appeal show, that is not the end of the matter. The Court also has to identify any bails concerns that might arise and separately deal with the question of whether the applicant presents an unacceptable risk of the kinds identified in ss 17 and 19 of the Bail Act. 21. The prosecution, as it did on the last occasion, identifies all four risks identified in the statute. In summary they are: 1. That the applicant will fail to appear. I accept that is a legitimate bail concern given the seriousness of the offending and the prospect of a lengthy gaol sentence. Further, there have been at least some occasions, as I set out in the last judgment, where the applicant has failed to comply with bail in the past. 2. The nature of the offending gives rise to a concern that he may commit further serious offences. 3. There is a concern that, as a result of the risk that he will further offend, he represents a danger to the community or to individuals within the community and in particular to the complainants or alleged victims. 4. There is evidence supporting the proposition that the applicant represents a risk of interfering with evidence, in particular attempting to contact the witnesses. This again is set out in the judgment on the last occasion. The applicant had other people contact the witnesses with the intention they be discouraged from pursuing the prosecution. On one occasion the applicant assisted one of his fellow inmates to breach a no-contact order in another domestic violence case. I accept the prosecution submissions that all four of the bail concerns identified in s 17 exist and must be considered. 1. I have considered the matters in s 18 of the Bail Act in determining whether those "bail concerns" (s 17) rise to the level of "unacceptable risks" (s 19). I have considered the alternative submission or proposition put by the investigating police as to the possible stringent bail conditions, and, I have considered what are even more stringent bail conditions proposed by the lawyers for Mr McConnachie. While the bail concerns are real and I have taken into account and given very serious consideration to the concerns raised by the alleged victims and their families and the misogyny demonstrated in the applicant's attitudes and behaviour, I have nevertheless come to the view that the bail proposal is so stringent that those concerns do not rise at this point to the level of unacceptable risks. I propose, having considered the conditions and having strengthened them, that is to say made them more stringent, that bail be granted. That will be on the following conditions: 1. To be of good behaviour. 2. To live at [REDACTED] with his mother [REDACTED]. 3. To report to the [REDACTED] Police Station daily between the hours of 6am and 6pm. 4. To appear at his trial at the Sydney District Court on the 27 July 2020 and on such date and at such Courts thereafter as required. 5. Not to drink alcohol. 6. Not to enter any premises in which alcohol is sold other than a licensed restaurant. 7. Not to take any illegal or prescription drugs other than a drug prescribed to the applicant by a doctor. 8. The applicant at his own expense must undertake urine or blood testing analysis with Dr [REDACTED] at least once every 28 days and provide the written results to the Officer in Charge of Police at [REDACTED]. The first such analysis must be undertaken on or before Thursday, 5 December 2019, and the applicant must provide evidence that the testing has been done by letter from Dr [REDACTED] by Friday, 6 December 2019. 9. Within 7 days of his release the applicant is to attend upon Dr [REDACTED] and arrange the urine or blood testing referred to in the last condition. The applicant is to provide a letter to the Officer in Charge of Police at [REDACTED] showing that he has complied with that condition. 10. The applicant is not to be absent from the address at which he is required to live between the hours of 7pm and 6am unless he is in the company of his mother [REDACTED] or in the case of a medical emergency. 11. The applicant is not to travel further than 50 kilometres from [REDACTED] except for the purposes of attending conferences with lawyers in Sydney or Gosford. 12. He is not to have any contact in any way except through a legal representative with any person he knows to be a prosecution witness except if the witness is a police officer. 13. He is not to have contact in any way except through his lawyers with the complainants, [REDACTED] or the tendency witnesses known as MW and NP, that is [REDACTED] or any relative of any one of those people and is not to go within 10 kilometres of any place he knows such people reside or are at the time present. 14. The applicant is to travel from the Correctional Centre from which he is to be released on bail in the company of his brother Stephen McConnachie who must be in attendance at the Correctional Centre before the applicant is released and must travel then directly to [REDACTED]. 15. The applicant is not to purchase or acquire any mobile telephone. 16. The applicant is not to access the internet with any device. 17. The applicant is not to use any dating service, whether online or otherwise. 18. The applicant is to notify the Officer in Charge of Police at [REDACTED] of any electronic device to which he has access that is capable of accessing the internet. He is to provide the telephone number of any telephone and the IP address of any computer to which he has access that is capable of assessing the internet. 19. The applicant is to consent to police inspecting such devices and to provide them with any necessary passwords, fingerprint or facial recognition to enable the police so to access. 20. He is not to apply for any passport or travel document. 21. He is not to go within one kilometre of any international point of departure from the Commonwealth of Australia. 22. One acceptable person is to deposit the sum of $50,000 in cash and agree to forfeit that sum if the applicant fails to appear in Court in accordance with his bail acknowledgements. I nominate his mother, [REDACTED] to be an acceptable person for the purpose of that condition. 23. The applicant is to present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so having regard to the rights of other occupants of the premises to peace and privacy. 24. The applicant is to undertake any testing at the direction of any police officer to confirm compliance with the drug/alcohol abstention condition. Such direction may only be given by a police officer who believes on reasonable grounds that the applicant may have consumed drugs or alcohol in breach of the bail acknowledgment. Such testing may only be non-invasive and carried out with respect given to the applicant's privacy. POSTSCRIPT 1. The applicant complied with his bail undertaking and attended his trial which was conducted by judge sitting without a jury. He was convicted and sentenced to an aggregate sentence of 26 years with a non-parole period of 19 ½ years. ********** Endnotes 1. See, for example, The 120 Days of Sodom or The School of Libertinage (Les 120 Journées de Sodome ou l'école du libertinage). 2. Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227. 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: 01 March 2024