New South Wales Supreme Court CITATION : Regina v Blissett [2006] NSWSC 1383 HEARING DATE(S) : 30/11/2006 JUDGMENT OF : Howie J at 1 EX TEMPORE JUDGMENT DATE : 11/30/2006 DECISION : Bail granted on same conditions as those that are granted by the Magistrate. CATCHWORDS : Bail Act -Stay of grant of bail by magistrate pending review - whether bail should be granted - whether stay warranted. LEGISLATION CITED : Crimes Act 1900 - s61J Bail Act 1978 - s 32 PARTIES : Regina v Dione Trevor Blissett FILE NUMBER(S) : SC 2006/2705 COUNSEL : N. Olender - Crown P. Lowe - Applicant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BAILS LIST HOWIE J THURSDAY 30 NOVEMBER 2006 2006/2705 REGINA v DIONE TREVOR BLISSETT (VIDEO LINK TO METROPOLITAN REMAND CENTRE) JUDGMENT - On application for review of grant of bail 1 HIS HONOUR: This is an application for a review of bail granted to the applicant in the Local Court in relation to five offences of aggravated sexual assault contrary to s 61J of the Crimes Act. 2 The matter is an unusual one and there is some difficulty in doing complete justice to both parties. This is because the Government thought it advisable to allow a police officer, here a police prosecutor, to stay an order of a judicial officer, a magistrate, who has granted bail subject to a review in this Court. The difficulty is that both of the parties and the Court must act urgently to determine the matter because the stay lasts only three days at the longest. 3 I have difficulty in understanding how it was thought that the Director of Public Prosecutions and the applicant could properly deal with a matter in this Court on two days' notice but this is a piece of legislation that presumably thinks that the DPP, the solicitor for the applicant and this Court can deal with a matter like this, at a drop of a hat, even though the parties might not be properly instructed and even though this Court has large lists of bail applications with persons who may have more pressing applications than those falling under the particular provisions. In effect a police prosecutor can determine the priority of matters in this Court even though there may be no pressing need for a stay or the urgent resolution of the question of bail apparent on the material presented to the Court when called upon to determine the application. 4 The charges are on their face serious and could justify a court in refusing bail. However it must be borne in mind that the position in relation to the application is, what is often referred to as, bail neutral. In other words, there is no presumption in favour of bail but nor is there a presumption against bail. The Court in such a situation simply looks at the relevant considerations and determines whether or not to grant bail to the respondent according to the normal criterion for the granting of bail under the Act. The need for a stay might more readily be apparent where bail is granted in respect of a matter where there is a presumption against bail or where the court has to be persuaded that there are exceptional reasons justifying the grant of bail. But that is not this case. It is not a situation where the serious nature of the offences would indicate that bail should normally be refused. 5 An important matter to take into account in applications such as the present is the strength or otherwise of the Crown case. The representative of the Director of Public Prosecutions has indicated that the Director seeks a review of the grant of bail and objects to bail being granted on the basis that the case is a strong one. With great respect, I am not so sure that that is the position. Even on the limited material before me there are some questions about the prosecution case. 6 One of the apparent indicators of it being such a strong Crown case is that the applicant's DNA was found on the panties of the child concerned. I am not in possession of all the full information on that issue but, as I understand it, it is agreed between the parties that it is not quite as clear as the facts might tend to suggest in that it is one of those DNA results that indicates that there are contributing factors. Anyway, I have not all the material before me, but I am not persuaded that the DNA evidence is as damning as it might be. The prosecution simply cannot put all the relevant material before me at this stage in the proceedings and this is one of the difficulties of this Court being required to review a matter when neither of the parties is really in position to have the Court do so. 7 Quite frankly, I do not understand why it was thought necessary that a stay should be granted in this particular case. I could understand such a step being taken if there was a real risk of flight, but that is not suggested to be present here. I could also understand such an extraordinary step being taken, if the applicant was seen as a danger to the community, but that is not suggested: he has hardly any record or no relevant record. Nor is there any submission that there is a real risk of the applicant interfering with the witnesses. That is particularly pertinent because in my experience it is not infrequently the case that investigating police allege that there is a risk of the accused interfering or intimidating the witnesses even though there is nothing to support such an allegation. No such allegation is even made here. 8 It seems to me, with respect, that prosecutors who have this power should only exercise it where an urgent resolution of the question of bail is truly required, not simply because they do not agree with the result. There is a power for the Director to seek a review of bail granted by a magistrate in this Court and, if there is no real risk of the applicant fleeing or committing further offences or intimidating or harming any of the witnesses, I quite frankly do not see why the matter should not be allowed to take its normal course. The power should, in my opinion, be seen as a very exceptional one and used only where the circumstances call for an urgent review of the magistrate's decision because of the risks posed to the community if the applicant were to be released. I would have thought that such a case would be a very rare one. 9 In my view there is nothing in the material before me that indicates that a stay was warranted. The matter seems to me to be a fairly ordinary bail application. The allegations are serious but the Crown case does not appear to be a particularly strong one although there is material that indicates the Crown does have a case. There is nothing that warranted the question of bail to be urgently resolved and certainly not at the expense of other persons in the bail list. 10 The applicant should, in my view, receive the benefit of any doubt that surrounds the strength of the Crown case at this stage and on the limited material before me. As I have indicated, the only indicator of a likelihood of flight in the present case is the seriousness of the charges and that fact is not of any great probative value unless the likelihood of conviction is a very significant one. 11 In my view there is nothing on the material before me to indicate that bail ought to be refused either in protection of the public or to ensure the applicant's attendance at the proceedings. As was very fairly pointed out to me by the prosecutor, if bail were refused the applicant would have a very lengthy period to remain in custody pending the resolution of this matter even though he is entitled to the presumption of innocence and even though on the material before me the Crown case does not appear to be an overwhelming one. 12 I have indicated that this is a decision that is made in some haste and on limited material from both the prosecution and respondent. If the prosecution on further reflection and on further material placed before it believes that I have been wrong in my assessment of the prosecution case or, indeed, on any other of the issues that I have taken into account, it is quite entitled to come to this Court and seek a further review. It may well be that another member of this Court will take a different view on different or further material. However, on the material before me and having regard to the relevant provisions of the Act and particularly to s 32 it seems to me that bail ought be granted. I grant bail on the same conditions as those that were granted by the magistrate. The conditions are as follows: (1) The applicant is to reside at 8 Gillespie Street, Liverpool and nowhere else. (2) He is to report to Green Valley police station every Monday, Wednesday and Friday between the hours of 6 am and 6 pm. (3) He is to enter into an agreement without security to forfeit the sum of $5,000 if he fails to comply with his bail undertaking. (4) One acceptable person is to enter into an agreement with security to forfeit the sum of $1000 if he fails to comply with his bail undertaking. (5) He is to surrender any passport he may have to the justice who admits him to bail and is to give an undertaking in writing that he will not apply for a new passport. (6) He is not to go within one kilometre of any airport or recognised point of departure for overseas. (7) He is not to communicate directly or indirectly, except through his legal advisers, with either of the complainants in this matter who will be stated in the bail papers. (8) He is to appear at the Penrith Local Court on 16 February, 2007 and thereafter on each and every occasion that the matter is listed and his attendance is required. (9) He is to be of good behaviour in all respects throughout the period of his liberty on bail. (10) Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may thereupon be arrested by any police officer. Bail may be entered into before any person authorised under the Bail Act 1978. 13 I would ask the Director of Public Prosecutions to consider whether he might, if he is able to do so, issue guidelines to prosecutors as to when it is appropriate to use the exceptional power to stay an order of a magistrate granting bail rather than to seek a review of the decision in this Court. ********** 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.