R v Newey [2014] NSWSC 1608

Supreme Court New South Wales

Medium Neutral Citation: R v Newey [2014] NSWSC 1608 Hearing dates: 12 November 2014 Decision date: 13 November 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The applicant is granted conditional bail until his next court appearance on 15 December 2014 at Albury Local Court. Catchwords: CRIMINAL LAW - application for bail - murder and other related offences - Crown case not overly strong - circumstantial case with regard to crimes allegedly committed over 40 years ago - no scientific evidence - applicant has a lengthy criminal record - no prior serious offences of violence - applicant suffering from serious health issues - risk that applicant will fail to appear - whether strict bail conditions sufficiently mitigate that risk Legislation Cited: Bail Act 2013 (NSW), ss 17, 19, 20 Category: Interlocutory applications Parties: Colin Michael Newey (Applicant) Regina (Respondent) Representation: Counsel: B Rigg SC (Applicant) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2014/264457

Judgment 1On 12 November 2014, I heard the application of Colin Michael Newey (the applicant) for bail from this Court. That was with regard to the allegation that on 12 October 1973 he kidnapped, raped and murdered Bronwyn Ann Richardson (to whom I shall refer as the deceased). I stood the matter over for judgment today to give me time to reflect. 2The applicant was charged with those offences on 30 July 2014. He has been in custody since then. 3There is no dispute between the parties that, on Friday 12 October 1973, the deceased was abducted from a street in Albury. Thereafter, she was bashed, sexually assaulted, strangled, and her body thrown into the Murray River. There is a very real dispute whether, at trial, the Crown will be in a position to prove that the accused was the person, or one of the persons, who committed those acts. 4Senior counsel for the applicant has not submitted that the allegation can be characterised as anything other than profoundly serious: Bail Act 2013 (NSW) s 17(3)(b). Nor has she disputed that, if convicted, a sentence of imprisonment for many years would be completely inevitable: Bail Act s 17(3)(h). Crown case analysis and assessment 5She has submitted, however, that on analysis the Crown case is not a strong one: Bail Act s 17(3)(c). In order to permit me to analyse that contention, I was provided with a statement of facts prepared on 11 November 2014. That document runs for 35 pages of closely typed material, and comprises 258 paragraphs. Yesterday I explained to the parties that my comprehension would be greatly enhanced if, as an alternative, I were provided with a document that set out succinctly the various strands of the Crown case, and thereafter was informed of the response of the applicant to each of those strands. Each party was content with that course, and was content with my focus being on that second document and oral submissions, rather than the lengthy first document. 6The Crown case is a circumstantial one with regard to offences said to have been committed over 40 years before the applicant was arrested. It is noteworthy that there is no scientific evidence, such as DNA or fingerprints for example, that is said to inculpate the applicant in the offences. 7I shall recount the bases of the Crown case of which I was informed, and thereafter recount the response of the applicant to each of them. 8The first basis is that it is alleged that the applicant engaged in conduct after the offence suggestive of consciousness of guilt. 9The first act said to evidence consciousness of guilt is that the applicant gave various accounts of his contact with the deceased on the day of her death. It is said that, in 1976, he had said that he had not seen her after one week before her death. To the contrary, it is also said that later he accepted that he had seen her at lunch on that day. 10The response of senior counsel for the applicant to that contention is that it is accepted that the applicant told a deliberate lie. However, her submission is that it is not uncommon for people to lie for reasons other than consciousness of guilt, especially if they infer that they are suspected of committing a serious crime; indeed, any jury would need to be directed to that effect. 11The second act said to evidence consciousness of guilt is the applicant making a phone call in October 1989 to a police officer said to be designed to implicate others: a Mr Brown and a Mr Martin directly, a Mr Newman indirectly, and also giving information that would lead to a Mr Eames. 12The response of the applicant is as follows. It is said that a person known as "Witness A" implicated the applicant with regard to the making of the phone call. But it is said that Witness A only did so many years after the phone call was made. The version of Witness A is that, whilst intoxicated, the applicant bragged of making the call. It is also said that Witness A may well have a motive to falsely implicate the applicant. 13Witness B has also said that the applicant has said that he, the applicant, made the call. But it is said that the version of Witness B as to what the applicant said he, the applicant, had said to the police officer is inconsistent with the evidence of the police officer as to what the caller actually said. 14Mr Eames has also said that he did not make the call, and that the applicant told him that the applicant had done so. It is also the case that, by way of a listening device, a conversation between Mr Eames and Witness A was recorded, in which it seems Mr Eames said that the applicant made the phone call. 15The response of the applicant is that, many years ago, Mr Eames said in the presence of four detectives that it was indeed Mr Eames who had made the phone call. In short, the credibility of Mr Eames with regard to the phone call will be very much in dispute. 16The third thing done by the applicant said to show consciousness of guilt is his giving an account of being on a bivouac over the relevant weekend. It is said by the Crown that that was a false alibi, and designed to deflect attention from himself. 17In response it is said that it is actually true that the applicant was camping on that weekend. It is also said that Witness B has given a version contradicting that proposition 15 or 20 years after the weekend in question. Furthermore, it is said that it can be shown that Witness B is objectively wrong about some details. 18The fourth basis upon which the Crown says that consciousness of guilt can be inferred is that, in an interview with police in 1976, the applicant nominated others with regard to their access to certain motor vehicles, thereby sending the police on something of a wild goose chase. 19In response, senior counsel for the applicant tendered a copy of the typewritten police record of the interview, and it became Exhibit 4 before me. She submitted that one cannot tell whether the applicant was actually actively putting that material forward, or was simply answering the questions that he was asked by police. Furthermore, she submits that there is nothing incorrect, in any event, in what it is said the applicant said in 1976. 20The second basis of the Crown case is that the applicant expressed a sexual interest in the deceased, who was a distant cousin, by making salacious comments about her. In response, counsel for the applicant submits that that material comes from Witness B, and was recounted by that witness in 2012 (when the witness was aged 56 years) and relates to things allegedly said by the applicant when the witness was 17 years of age or younger. 21Finally, it is said that the Crown case will be based upon a process of disproving the out of court statements of Mr Eames and Mr Newman that they saw the crimes committed by Mr Martin and Mr Brown, and the applicant was not present. 22Again, at the risk of a degree of repetition, the response of senior counsel for the applicant to that strand of the Crown case is as follows. 23After the two calls were made to the police officer in 1989, police believed that Mr Eames was the caller. Mr Eames was interviewed in early 1990. In the presence of four detectives, he made full admissions to being the person who made the telephone call. Indeed, he gave an expanded account in which he said that the two perpetrators were Mr Martin and Mr Brown. The caller had said that he, the caller, was with Mr Newman, and the real criminals were Mr Martin and Mr Brown, not the two observers. In short, Mr Eames not only said to the police he made the call, he expanded upon it. 24It seems that, now, the position of Mr Eames is that he was not the caller. The defence case is that Mr Eames, who is still alive, was indeed the caller. 25Furthermore, it is said to be noteworthy that Witness B has said that Mr Eames gave a similar account to Witness B; that is, that he merely got caught up in the crimes of Mr Martin and Mr Brown. That was in a covertly recorded conversation of 2009. 26In short, Mr Eames has previously denied making the call. And as well as that, in the committal hearing of Mr Brown, when the latter was charged with murder, Mr Eames also changed his position about the call. 27Mr Newman, who is deceased, has also given a version that it was Mr Martin (who is also deceased) and Mr Brown who committed these crimes, that there were only four men there, and that the applicant was not one of them. 28That brief overview sets out my understanding of the entirety of the Crown case, along with the response of the applicant to it. In the hearing, I enquired of the solicitor for the Crown whether she would seek to dissuade me from the view that the Crown case should be assessed as not overly strong. She did not seek to do so, and for the purposes of section 17(3)(c), that is the assessment that I make. Criminal record of applicant 29Turning to other relevant factors, the applicant was born in April 1953 and is accordingly 61 years of age. He has a criminal record in New South Wales, Victoria, and South Australia, that by no means does him credit: Bail Act s 17(3)(a). 30In New South Wales, he has been repeatedly convicted of stealing and driving offences. It also seems that, in 1974, he possessed a "silencer" and was fined the surprisingly small sum of $40. He has committed break enter and steals, and was sentenced to imprisonment for that offence 40 years ago. It is also noteworthy that in 1984 he was placed on a bond for assault occasioning actual bodily harm, and later that year was not before the court with regard to an allegation of assault and various driving offences. In New South Wales, his criminal record concludes in 1984, and recommences with the execution of warrants (presumably for the assault occasioning actual bodily harm and the driving offences) and with him being charged with these offences. 31In Victoria, the applicant was also dealt with for stealing, including with regard to motor vehicles. There are also entries for what is called burglary in Victoria, and what seems to be the equivalent of goods in custody or receiving. That record concludes in 1981. 32In South Australia, he was fined for breaking into premises and stealing. There are also entries for larceny, receiving, and driving offences. There was also a common assault in 1987, for which it seems he received a two month sentence, possibly suspended. In the late 1980s he hindered police, was unlawfully on premises, and committed a driving offence. There was also a suggestion of a problem with alcohol, in that he was fined for drink driving at the same time. In the early 1990s he continued to steal, and ended up being sentenced in 1992 to serve a balance of parole of 20 days. There was also a suggestion of use of prohibited drugs. 33It is noteworthy that, in 1994, the applicant was convicted of common assault but discharged without penalty. A conviction for arson also invites attention in the same year, although it can be said that it resulted in nothing more than a suspended sentence and community service. Again in 1994 there was a common assault and an allegation of manufacturing a prohibited drug, which again resulted in $150 fine. In 1995 it was said that the applicant had breached the bond with regard to the arson, but it was extended. Eventually he ended up being imprisoned for four months for that offence. 34In 1996 the applicant was dealt with for estreatment of bail, which I infer to be roughly equivalent to a breach of bail. In 1997 he was dealt with for disorderly behaviour and ordered to perform community service. In the same year there is a suggestion that he possessed implements that would permit him to administer cannabis. Again, in 1997, with regard to an allegation of common assault, he received neither conviction nor penalty. In 2002 he was convicted of drink driving. In 2005 he was sentenced to community service for a short period for "unlawful possession" of an unidentified item. Again in 2007, he was found to be drink driving. Finally, in July 2014, he was extradited from South Australia to face these charges in New South Wales. 35As I have said, that overview does the applicant no credit whatsoever. It is true that it seems he breached his bail in 1996: Bail Act s 17(3)(f). It is also true that it seems that 30 years ago he was not before a court, and never took steps to resolve those matters. Is also true that there is a very small flavour of violence in the applicant's record: Bail Act s 17(3)(d). Finally, the possession of a silencer 40 years ago is not to be overlooked. 36Having said that, it is noteworthy that the applicant has never been convicted of an offence of serious violence. Unless I am mistaken, none of his matters have been dealt with other than in the Children's Court or the Local Court or their equivalents. He has never been sentenced to anything other than a few weeks or months in prison. His record is suggestive of a man who has had something of a long-standing issue with alcohol and cannabis, and has been for many decades a petty criminal who has unacceptably disrupted the community as a result. Other considerations 37As I have said, the applicant is aged 61 years. Exhibit 2 demonstrates that he is an "older frail man". It is said that he has "multiple health issues" and is being treated for cardiac problems, blood pressure and diabetes. It is also said that in the past he has been a heavy user of alcohol, and has been treated for skin infections. Those documents also confirm that the applicant has had a carer since 2006 from whom he has had considerable support, a topic to which I shall turn in more detail in a moment. 38Having said that, his GP has expressed the opinion that "his health needs could be well met in the prison system", an opinion that I accept. 39Senior counsel's proposal is that the applicant would go to live in Murray Bridge, South Australia, which I understand to be reasonably close to Adelaide. It is said that he would return to his own Housing Commission home, that being a town in which he has lived for many years. It is also said that he would have a sound community tie, as demonstrated by Exhibit 1, the affidavit of Ms Kim Penny. She explains that she has known the applicant for many years, and that she became his carer six years ago. Apparently she receives payment from the government for doing so. She has said that as carer she would keep track of the medications of the applicant, including his insulin injections. She also takes care of his finances and generally spends about four hours a day with him. It is also said that he gets on well with her children, and indeed they regard him as part of the family. Whilst he has been incarcerated, Ms Penny has continued to look after his affairs. 40Her affidavit concludes by explaining that if the applicant were granted bail she would continue in her role as carer, and would make sure that the applicant attend court and attend at the police station to report. Finally, she has given in her affidavit a sworn undertaking that she would contact either the local police or the New South Wales police if she became aware that the applicant had breached any of his bail conditions. 41Senior counsel's proposal is that the applicant should be bailed to live at his home in Murray Bridge. During discussion between Bench and Bar table she accepted that, at least as a starting point, he must be inside his home without exception between 9 PM and 7 AM. She also accepted that, again at least as a starting point, the applicant must not go more than 10 kilometres from Murray Bridge Post Office. He must also report to police, she submits, and have nothing to do in the slightest, directly or indirectly, with any prosecution witness. 42The solicitor for the Crown expressed two concerns. The first was the protection of witnesses who may live nearby, though that concern was lessened to a degree when she came to appreciate what senior counsel was proposing with regard to the curfew without exception, the geographical restriction, and the complete prohibition on direct or indirect contact. 43She also expressed a logistical concern as to whether or not the South Australian police could or would enforce any bail conditions imposed by a New South Wales court whilst the applicant was outside New South Wales. She submitted that it would be preferable for those reasons for the applicant, if he were to be granted bail, to live somewhere in New South Wales. 44In response, senior counsel tendered Exhibit 3, which suggests that the South Australian police are prepared to assist their New South Wales colleagues, and they seek an email address so that that could be promptly and directly done. 45I accept that there are logistical issues about enforcing bail conditions imposed in New South Wales outside New South Wales. But I do not accept that they are insurmountable. In any event, Exhibit 3 shows that the Murray Bridge police are prepared to assist, so long as it is made reasonably practical to do so. And I would have thought that, in the circumstances of this case, and bearing in mind the profound seriousness of the offences with which the applicant has been charged, one can rely upon the Murray Bridge police to take a deep interest in the applicant and keep a very close eye on him. 46Finally, senior counsel has made the following submission as to how the applicant could practically, directly and securely travel, if he were released, from Parklea prison in the outer Western suburbs of Sydney, to a town in South Australia many hundreds of kilometres away. The parties were content for me to receive brief written submissions with regard to those arrangements after I reserved yesterday afternoon. In short, the current proposal is as follows. Transport will be arranged for the applicant from his current gaol to Sydney airport. He would fly from there directly to Adelaide airport. There he would be met by Ms Penny, and travel with her directly to Murray Bridge by car. 47Contrary to the submission of the solicitor for the Crown, in light of the written assurance of those matters of the solicitor for the applicant, combined with my acceptance of the truthfulness of the contents of Exhibit 1, I do not require documentary proof of those arrangements. Determination 48Turning to s 17(2) of the Bail Act, if it were the case that this man were to be granted unconditional bail, I would have no doubt that there would be an unacceptable risk of him failing to appear with regard to these extremely serious allegations that could lead to him spending many years in custody. There is not the slightest question of unconditional bail. The real question is whether, pursuant to ss 19 and 20 of the Bail Act, and having considered all of the factors in s 17(3) of that Act, that unacceptable risk can be sufficiently mitigated by the imposition of bail conditions. 49In short, one is speaking of profoundly serious offences that would inevitably lead on conviction to many years in custody. Having said that, I assess the Crown case as not overly strong and subject to valid question. I say that, of course, assessing a circumstantial case not by way of its individual pieces but rather as a whole. 50As well as that, the applicant, although by no means free of criminal convictions, has not shown himself in the past to be a man in the habit of committing serious offences, including serious offences of violence. I also think that it is right to characterise him as a sick old man. Finally, it can be seen that there are reasonably substantial community ties in the town in which he has lived for many years. 51Having reflected on the matter, I have come to the view that the very strict bail conditions proposed on his behalf do sufficiently mitigate the otherwise unacceptable risk that he would fail to appear in answer to these allegations. It follows that, in accordance with the Bail Act, I am required to grant bail in the following terms to which I shall turn in a moment. 52Finally, I should say that I am aware that one condition that I will impose, namely with regard to not leaving Murray Bridge, is inconsistent with the applicant being able to attend the Local Court at Albury in a month or so. I do not intend to tarry to debate all of the practical and logistical arrangements that should be put in place for that journey some weeks from now. Instead, I propose that the solicitor for the applicant approach the Local Court at Albury for a variation of bail well before that date in order to permit the travel of her client for that date, if necessary. 53The applicant is granted conditional bail until his next court appearance on 15 December 2014 at Albury Local Court. 54FOR BAIL CONDITIONS SEE COURT FILE.