Supreme Court New South Wales Medium Neutral Citation: R v Dwayne Knight [2014] NSWSC 1911 Hearing dates: 3 December 2014 Decision date: 03 December 2014 Jurisdiction: Common Law Before: Wilson J Decision: Bail revoked Catchwords: BAIL – detention application – bail granted by District Court after trial vacated to await determination of 5F appeal - jurisdiction of District Court to hear bail application once bail had been refused by Supreme Court – special or exceptional circumstances limited to circumstances of present case BAIL – detention application – unacceptable risk Legislation Cited: Bail Act 2013 Category: Principal judgment Parties: The Crown (applicant) Dwayne Knight (respondent) Representation: Solicitors: A Wheeler (applicant) M Zaki (respondent) File Number(s): 2014/341030 Judgment 1. On 3 December 2014 I granted the Crown's detention application and revoked the respondent's bail. These are the reasons for that decision. History of the matter 1. In March 2013 the respondent was charged with a number of offences of a sexual nature against three victims, MC, LC and AF. He was granted bail by the Supreme Court on 6 March 2013, on a number of conditions including a residential condition. 2. On 23 October 2013, whilst subject to that bail, the respondent was charged with further sexual offences allegedly committed on the complainant TPB. In addition, the respondent was at the time residing is a caravan park, in contravention of his bail conditions. Accordingly, his bail was revoked. 3. The first trial in relation to LC was heard in May 2014 at Wagga Wagga District Court. The respondent was acquitted of all charges. 4. The respondent made a bail application to the Supreme Court on 22 September 2014. It appears that, at that stage, the trials in relation to the remaining three complainants were listed as follows: 1. The trial relating to charges against TPB was to commence on 3 November 2014 at Griffith District Court. 2. The trial regarding the allegations involving the victim AF was to commence on 1 December 2014 at Wagga Wagga District Court. 3. The trial in relation to MC is listed to start on 2 February 2015 before Wagga Wagga District Court. 1. Blackmore AJ refused the respondent's bail application concluding that the respondent presented an unacceptable risk of committing further offences whilst on bail. 2. The trial in relation to TPB commenced as listed on 3 November 2014 before Lerve DCJ. The Crown sought to lead tendency evidence in accordance with a notice it had served. The trial judge initially admitted the tendency evidence but revisited that decision later in the proceedings and reversed the ruling on 4 November 2014. It is unnecessary for present purposes to recount the reasons for that decision. 3. The Crown indicated to the Court it intends to appeal his Honour's ruling pursuant to s5F of the Criminal Appeal Act 1912. Accordingly, the trial was necessarily adjourned to await the outcome of the appeal. 4. Once it became apparent that the trial could not continue, with further delay in the resolution of the matter, the respondent applied for and was granted bail by the trial judge, on 5 November 2014. That decision, outlined in more detail below, gave rise to the Crown's detention application. 5. At present, the 5F appeal is listed for hearing before the Court of Criminal Appeal on 11 February 2015. No trial date has yet been fixed. The trial date of 1 December 2014 in relation to the complainant AF was similarly vacated to await the outcome of the 5F appeal, with no fresh trial date. It appears that, if the appeal is successful, the Crown may seek to join the trials with respect to TPB and AF. The trial relating to allegations against MC remains listed for 2 February 2015. Lerve DCJ's decision 1. When considering the respondent's application for bail, Lerve DCJ acknowledged the difficult balancing exercise involved. His Honour recounted the history of the matter and the events giving rise to the bail application. He addressed the seriousness of the offences and the likelihood of convictions with respect to the various allegations against the respondent. His Honour recounted Blackmore AJ's findings that the respondent did pose a risk of committing further offences, in light of the history before the court; and that there was some risk of failing to attend. 2. His Honour then addressed the delay to the listing of the trials likely to be occasioned by the appeal to the Court of Criminal Appeal. At that stage, the appeal had not yet been listed. His Honour was of a view that the appeal was unlikely to be heard before March or April, with no certainty the decision would be handed down immediately. The trials would necessarily be listed months into the future. 3. After hearing submissions from the parties on the jurisdictional question posed by s.69 of the Bail Act 2013, His Honour concluded "with some hesitation" that the Crown's decision to pursue the 5F appeal amounted to special facts or circumstances, therefore enabling the District Court to hear the bail application, notwithstanding the earlier decision of Blackmore AJ. 4. The trial judge came to a conclusion that, having balanced the risk that the respondent posed against the likely delay and time he would spend on remand, bail should be granted. The detention application before this court 1. The Crown filed a detention application to this Court in response to Lerve DCJ's decision. The application was heard on 3 December 2014. The respondent appeared via AVL from Griffith Local Court. 2. Forming part of the Crown material on the application were transcripts of the decisions by Blackmore AJ and Lerve DCJ; the indictments and police facts relating to the allegations awaiting trials; the respondent's criminal history from this State and Queensland; as well as two documents outlining police concerns with respect to bail. 3. The Crown case was put on two bases. The first is that, in light of s.69 of the Bail Act 2013, Lerve DCJ did not have jurisdiction to hear the bail application, it having been refused by the Supreme Court on 22 September 2014. The second is that the respondent remains an unacceptable risk of committing further offences if released to bail. Section 69 Bail Act 2013 1. Section 69 of the Bail Act 2013 provides: Limited powers when decision made by Supreme Court or Court of Criminal Appeal (1) The Local Court, the District Court, the Land and Environment Court or the Industrial Court (a "relevant court" ) may hear a bail application for an offence when a bail decision has been made by the Supreme Court (however constituted) or the Court of Criminal Appeal only if: (a) proceedings for the offence are pending in the relevant court, and (b) the person appears before the relevant court in those proceedings, and (c) the relevant court is satisfied that special facts or special circumstances justify the hearing of the bail application. (2) This section has effect subject to any exceptions or other limitations prescribed by the regulations. (3) This section does not prevent a court from hearing a detention application under Part 8. 1. The Crown submissions in this Court were to the same effect as argued before the District Court. The Crown submitted that the fact that the 3 November 2014 trial date was vacated did not constitute special facts or circumstances because it was known to Blackmore AJ, when he considered the bail application in September 2014, that the respondent faced trial dates up until February 2015. Hence, the Crown argues, Blackmore AJ was aware that there would be some delay until all of the allegations are resolved. 2. Blackmore AJ's remarks of 22 September 2014 form part of the Crown material on appeal. Bearing in mind that his Honour must have been dealing with a busy bails list and giving ex tempore reasons, it is not apparent from those remarks whether the listing information was before the Court at the time. Hence, it is not possible to assess to what extent the fact that the respondent was facing some delay in the determination of the charges against him influenced his Honour's decision to refuse the respondent's application for bail. 3. Assuming for present purposes that his Honour was aware of the various trial listings as they were at the time, and that, as the Crown submits "the period for which the bail was to be considered was known"; the specific length of the delay in bringing the charges against the respondent to a conclusion could not have been known when Lerve DCJ considered the question of bail. At the time bail was considered in the District Court, the 5F appeal had not been listed. The trial judge proceeded on the basis that the appeal would be unlikely to be heard before March or April (it is in fact listed in February). There was no indication when the trial in relation to TPB might be listed again, except that it would necessarily be some time after the appeal, and probably some months after the appeal, bearing in mind the usual listing delays, especially in circuit courts. 4. Thus, even if Blackmore AJ determined the bail application in September on the basis that all of the respondent's matters would not be finalised before February 2015, that anticipated timeframe had significantly changed by the time Lerve DCJ heard the further application for bail. In fact, in September 2014 the trial involving the complainant MC listed on 2 February 2015 was to be the last of the trials to be heard. By the time Lerve DCJ heard the bail application in November 2014, the MC trial of 2 February 2015 was likely to be the first trial to proceed. Thus, the expected delay and the period the respondent was to spend on remand was to be considerably longer than previously envisaged. 5. The Crown cited no authority in support of the submission that the fact the trial date was vacated did not constitute special fact or circumstances. Research conducted by the Court revealed no authority on this specific point. The phrase "special facts or circumstances" has been considered in a number of cases in the context of a bail application pending an appeal after conviction. However, as those situations are entirely different from the present circumstances, the principles expounded in those cases are of no application to the present matter. 6. I am of the view that, in the present circumstances and on the facts of this matter, the vacation of the trial date, and the uncertainty of the length of any delay resulting from the 5F appeal, did constitute a special fact or circumstance, thus enlivening the jurisdiction that Lerve DCJ exercised in determining the bail application. The timeframe during which the various matters were to be finalised had altered significantly by the time his Honour heard the bail application. The new timeframe was unable to be assessed with any certainty at all. The considerations might have been different had the 5F appeal been listed at the time, and Lerve DCJ was appraised of the length of the delay and the time the respondent was to remain on remand. However, in the circumstances as they were before the District Court on 5 November 2014, his Honour's exercise of his jurisdiction did not miscarry. Unacceptable risk and general bail considerations 1. The Crown submits the respondent still presents an unacceptable risk of reoffending, as outlined by Blackmore AJ. Mr Zaki, for the respondent, submits that any risk is adequately ameliorated by the strict conditions imposed by Lerve DCJ. 2. In determining whether there is an unacceptable risk, the Court must have regard to a number of considerations as prescribed by s.17 of the Bail Act 2013. The same considerations apply regardless of the fact that the respondent is presently at liberty: s17(5) Bail Act 2013. 3. There is no doubt that the allegations before the court are serious. The allegations in the matter of TPB are of sexual intercourse without consent at a time when TPB was 16 years of age and the respondent was 29 years old. The strength of the Crown case turns on the issue of consent, as there is strong forensic evidence, in the form of DNA, that sexual intercourse took place. The allegation is that the complainant was asleep and awoke to find the accused having intercourse with her. If the jury accepts the complainant's evidence, corroborated to an extent by the DNA evidence, the Crown case is far from weak. If the 5F appeal is successful, and the Crown leads tendency evidence against the respondent, the case against him becomes even stronger. 4. The allegations with respect to the victim AF are of aggravated indecent assault. Troublingly, it is alleged the victim AF also awoke to find the respondent trying to kiss her and touch her face and stomach area. When she tried to escape and call for help, the respondent is alleged to have put his hand over the complainant's mouth, telling her not to tell anyone. AF was 13 years of age at the time. If proven, this is a very serious incident of aggravated indecent assault, and would likely attract a custodial sentence. That the respondent physically prevented the child from calling for help heightens the seriousness of the offence as it is alleged. 5. With respect to the complainant MC the respondent faces a charge of sexual intercourse with a child under 10 years of age, which in 2007 carried a maximum penalty of 25 years imprisonment. The police facts reveal a disturbing set of allegations. It is alleged the respondent took the complainant to a secluded "tip" area, used as a disposal area for crushed vehicles. The respondent sat on a rock, placed the complainant in his lap, and had penile vaginal intercourse with her. He placed his hand over the complainant's mouth to prevent her screaming. It is also alleged he took photographs of this act using a mobile telephone, although no such images have been located, perhaps unsurprisingly considering the lapse of time. 6. It is further alleged the respondent threatened to kill the complainant if she told anyone of what he had done. This threat coupled with her very young age of 5 years, may explain the fact that the complainant did not disclose the incident until February 2012. 7. Needless to say, if the respondent is convicted of the above offences, he will inevitably be sentenced to a significant term of imprisonment, which may provide strong incentive to abscond and fail to appear before the court. 8. The respondent has a criminal history, albeit not a lengthy one. It does feature some convictions for drug possession in 2012 and 2013, some driving matters, and most significantly a conviction in 2009 for aggravated break and enter with intent to commit an offence of assault occasioning actual bodily harm, for which he served a custodial sentence. 9. The respondent has some history of failing to appear. In April 2012 he was charged in Queensland with an offence of driving whist over the prescribed concentration of alcohol. He was granted bail to appear before Kingaroy Magistrates Court but failed to do so. A warrant was issued for the respondent's arrest on 12 June 2012 and remains in force to date. 10. As already indicated above, in 2013 the respondent breached the bail he was subject to in the present proceedings by residing in a caravan park in direct contravention of his bail conditions. Furthermore, at the time he allegedly committed the offences against TPB, the respondent was on bail for the earlier offences. 11. Of significance, and concern, is the incident of 8 May 2012 when police found the offender in a car with a 15 year old girl, at a secluded location in Griffith area. While it appears the respondent had not at that time been charged with any of the present offences, and was not subject to bail conditions (except perhaps bail relating to the traffic offence in Queensland), the circumstances of the incident are troubling. 12. Particularly alarming is the fact the respondent's counsel, on his instructions, submitted to Lerve DCJ that the 15 year old girl was his cousin, whom he was helping through some troubles. Subsequent inquires by the police reveal that to be false, the child not being related to the respondent in any way. It is difficult to see how the information advanced to the District Court in support of the application for bail can be viewed as anything but a deliberate attempt by the respondent (not his counsel) to mislead the court. The respondent's preparedness to go to such lengths is of great concern to this Court. Indeed, such conduct could well be regarded as an attempt to pervert the course of justice. 13. The issue of the delay and the time the respondent will have to serve on remand is an important consideration when determining this application. Some attention has been given above to the expected delays. As noted, the 5F appeal is listed before the Court of Criminal Appeal on 11 February 2015. Even if the Court does not reserve its decision, the trials in relation to TPB and AF are very unlikely to be listed before the second term of 2015, and most probably towards the end of the year. Such delays in listing practices, and the fact the respondent will spend months, even perhaps a year, on remand is regrettable and unfortunate, to say the least. However, this is but one of a number of significant factors the Court must address and balance. 14. I have determined that the information before the Court must lead to the inescapable conclusion that the respondent poses an unacceptable risk of committing further offences and failing to appear in court if granted bail. 15. Having reached that conclusion, the question arises whether the bail conditions imposed by Lerve DCJ on 5 November 2014 can sufficiently ameliorate that risk. I am not satisfied they can. In light of the respondent's history, and all of the evidence before the court, the court can have no confidence the respondent will abide by those bail conditions. The risk of committing further offences and failing to appear in answer to the charges is too great. 16. Accordingly, the Crown's detention application is granted and bail is revoked. ********** Amendments 25 July 2016 - Typographical errors 19 October 2016 - removed publication restriction field content from Coversheet 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: 19 October 2016