R v Fesus [2014] NSWSC 770

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus [2014] NSWSC 770 Hearing dates: 16 June 2014 Decision date: 16 June 2014 Jurisdiction: Common Law Before: Adams J Decision: Conditional bail granted. The non-publication order is varied to permit publication of the full unredacted judgment to the Attorney-General. Legislation Cited: Bail Act 1978 (NSW) Bail Act 2013 (NSW) Category: Interlocutory applications Parties: Steven Frank Fesus (Applicant) Regina (Respondent) Representation: Counsel: S Dowling SC (Respondent) Solicitors: Nyman Gibson Stewart (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/115863

APPENDIX Introduction 1At the time of granting bail on 16 June 2014, brief oral reasons were delivered. I have expanded those reasons somewhat for present purposes to enable a better understanding of the reasoning applied to the matter but without changing the substance of the reasons that were delivered in open court. At all events, most were matters stated, one way or another, during submissions. Because of the ensuing publicity, I have decided that some parts of my reasons should be published. This is the redacted version. 2Previous applications for bail were made in this Court on 4 October 2013 and 20 December 2013. Bail was refused, essentially on the ground that the applicant had not established exceptional circumstances justifying a grant of bail, as mandated the Bail Act 1978 (NSW), as it was then in force. Background 3The applicant, a 41 year old man, is currently charged with murdering his wife. They had met in early 1995 and began to live together as partners from August 1995. The deceased was pregnant when the couple met (that child being born in July 1995) and they had one child together (born in June 1996). Although between February and May 1997 there were problems in the relationship, the pair married in May 1997. Between June and August 1997, the deceased had told a friend about wanting to leave the applicant but did not do so. There was other evidence that the deceased had told the applicant that, if he did not change his attitude, she would leave him and take the children. The two argued and fought at the house of a friend on 11 August 1997 although they left together, the deceased having declined an invitation by the friend to stay the night with her. The deceased spoke on the telephone later that evening with her mother. That was the last contact anyone had with her, so far as the police investigation shows. 4The body of the deceased was found in the evening of 14 September 1997 in a shallow grave on Seven Mile Beach near Gerroa. Unfortunately by that time, decomposition had the result that an autopsy, conducted by pathologist Mr Paull Botterill on 16 September 1997, was unable to establish the mechanism of death. The prosecution alleges that the deceased was killed by the applicant sometime on the night of 11 August 1997. 5[The applicant was interviewed several times by police. Following further evidence coming to light the applicant was arrested and charged with the deceased's murder.] 6This is an application that comes to be made under the amendments recently coming into effect in relation to bail. As mentioned above, bail has previously been refused under different requirements. This test was changed in a very significant way by the new Act, Bail Act 2013 (NSW), and applications which were or would have been refused under the old regime might now have a different outcome as, indeed, was the case here. The legislative scheme 7If this application was being made for the first time, it would be governed mainly by the following provisions - 3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions. (2) A bail authority that makes a bail decision under this Act is to have regard to the presumption of innocence and the general right to be at liberty. ... 17 Requirement to consider unacceptable risk (1) A bail authority must, before making a bail decision, consider whether there are any unacceptable risks. (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that an accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) A bail authority is to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk: (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f) whether the accused person has a pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds, (g) the length of time the accused person is likely to spend in custody if bail is refused, (h) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (i) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (j) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (k) the need for the accused person to be free to prepare for their appearance in court or to obtain legal advice, (l) the need for the accused person to be free for any other lawful reason. (4) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence (or the seriousness of an offence), but do not limit the matters that can be considered: (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole. (5) If the person is not in custody, the question of whether there are any unacceptable risks is to be decided as if the person were in custody and could be released as a result of the bail decision. 8It is important to note that every one of these matters would have been relevant under the previous statutory regime. In particular it is not correct to suggest that the presumption of innocence and the general right to be at liberty are new considerations, nor that the nature and seriousness of the offence is now not to be considered: para 17(3)(b) expressly requires this matter to be considered. Of particular relevance in the present application is the strength of the prosecution case: para 17(3)(c). These matters have always been important. However, where an applicant was charged with murder, their relative significance to the ultimate issue of whether bail should or should not be granted was different. 9The strength of the Crown case was considered, as it had to be, by the Courts which decided the previous applications. [The new evidence relied on by the applicant significantly affects that issue.] Consequently, it should not be assumed that, had the present application been brought under the old Act, bail would have been refused. However, from my point of view, this is irrelevant. I must decide the application in accordance with the law as it now is. Publication 10[Because of the need to consider and express an opinion about the Crown case it will be frequently necessary for a bail judgment to remain unpublished, lest the trial be compromised by public knowledge of a judge's view, one way or the other, about it.] This is why certain matters cannot be published in the present case. The transitional provisions 11Where there an application for bail has previously been decided, such as here, the new Act permits a further application to be made in certain circumstances, specified in s 74. If one or more of those circumstances are present, the application may be made and is to be decided by applying the provisions of the new Act. In substance, the present application may be considered if "information relevant to the grant of bail is to be presented ... [which] was not presented to the Court in the previous application ..." 12The threshold is a low one: relevance of the new information is sufficient; it does not have to be convincing; it does not have to be decisive; it does not have to weigh with any particular level of significance in the consideration of whether bail should be refused or not. Of course, it must be capable of influencing the decision, else it would not be relevant. This is not surprising. It is obvious that the Parliament considers that the present test imposed by the Act for the consideration of all new bail applications is appropriate and (if s 74 is satisfied) to the present application. It is true that the test is different - although the relevant factors remain unchanged -- but there is no reason, when the question of bail remains ongoing, arbitrarily to exclude from current applications, by virtue of some accidental chronology, the application of the present test. Is there new relevant information? 13A number of matters have been put forward as a change of circumstance satisfying the requirements of s 74(3)(b). I do not have to consider them because I am satisfied that one matter does satisfy that requirement. [It concerns not only relevant but significant forensic evidence as to the cause of death which was not available at the previous hearings.] 14 It follows that the application can be considered and, also, this must be in accordance with the new Act. Consideration of the application 15[Here is discussed the relevant considerations specified by s 17 of the Bail Act. It would give misleading picture to refer only to some of the factors and to disclose others might have a prejudicial impact on the trial. Accordingly, this passage has been redacted.] Conclusion 16Viewing the information tendered on the application as a whole, I think that, on the balance of probabilities, the applicant does not present an unacceptable risk of failing to appear at any proceedings for the offence, committing a serious offence, endangering the safety of victims, individuals or the community, or interfering with witnesses or evidence. 17Accordingly, I propose to grant conditional bail. Bail conditions He is to be of good behaviour. He is to reside at XXXXXXXXXXXX. He is to report to the Officer in Charge of the Police Station at Wollongong twice on each day between the hours of 8am and 10am and 5pm and 7pm. He is to appear at Wollongong Local Court on 18 June 2014. He is not to communicate either directly or indirectly, except through his legal advisors, with XXXXXXXXXXXXX or any other person he is informed is or may be called as a Prosecution witness. One acceptable person is to acknowledge in writing that he or she is acquainted with the applicant as a responsible person who is likely to comply with his bail conditions. The applicant is to enter into an agreement without security to forfeit the sum of $1,000 if he fails to comply with his bail conditions. The applicant is not to enter any international point of departure from the Commonwealth of Australia. The applicant is to give an undertaking in writing to the Officer in Charge, Detective Herft, not to apply for any new passport or travel document during the currency of bail. In the event that the applicant breaches any of the conditions of his bail it is automatically revoked and the applicant may be arrested forthwith by any Police Officer. Bail may be entered into before any person authorised in that behalf. Publication 18At the hearing of the application on 16 June 2014 I ordered that there be no publication of the proceedings or of my reasons. I vary this order to permit publication of the full unredacted judgment to the Attorney-General. As mentioned above, I think it appropriate to vary that order by permitting publication of a redacted copy of these reasons, in the form of the appendix to this judgment.