Supreme Court New South Wales Medium Neutral Citation: M v R [2015] NSWSC 138 Hearing dates: 16 February 2015 Date of orders: 18 February 2015 Decision date: 18 February 2015 Jurisdiction: Common Law Before: McCallum J Decision: Release application is refused Catchwords: BAIL – release application – show cause requirement Legislation Cited: Bail Act 2013 (NSW), ss 3, 16A, 16B, 17, 18, 19, 20A, 31 Bail Amendment Act 2014 (NSW) Category: Principal judgment Parties: [Non-publication order] (Applicant) Regina (Respondent) Representation: Counsel: Wilkins (Applicant) H Kemp (Respondent) Solicitors: Office of the Director of Public Prosecutions (Respondent) File Number(s): 2014/178678 Publication restriction: Non-publication order re the identity of the accused and the deceased. Judgment 1. HER HONOUR: This is a bail application [the name of the applicant is the subject of a non-publication order]. The applicant has been charged with 28 charges relating broadly to his treatment of the child of his partner. Bail is opposed for 15 of the charges, the most serious of which is a charge of murder. The other offences in respect of which bail is opposed are charges of common assault, assault occasioning actual bodily harm, producing child abuse material, inciting an act of indecency, injuring a child and one drug offence. For the remaining 13 charges the applicant enjoys the benefit of a right to release, since they are fine-only offences. The present application is not concerned with those offences. 2. The application was heard on Monday of this week, two weeks after the commencement of the Bail Amendment Act 2014 (NSW) ("the Amendment Act"). Two significant reforms were introduced by that Act. The first was to simplify the risk assessment task of the Court under the Bail Act 2013 (NSW) ("the Act"). Whereas previously the Court was required to determine whether there was any unacceptable risk and then to turn to consider whether that risk could be mitigated by the imposition of conditions, the amendment simplifies that process by incorporating within the task of assessing any bail concerns the prospect of imposing bail conditions so that the single task of the Court is to assess the unacceptability of any risk having regard to a series of mandatory considerations, including the bail conditions that might reasonably be imposed. That in my view is a welcome reform. 3. The second is the introduction of a show cause requirement in respect of certain serious offences. The offences to which the show cause requirement applies are listed in s 16B of the Act. The content of the requirement is that the accused person must show cause why his or her detention is "not justified". 4. I note that the Amendment Act also removed s 3(2) of the Act, which referred to the presumption of innocence and the right of an accused person to be at liberty. The presumption of innocence is, of course, a fundamental premise of the criminal justice system; the right of a person to be at liberty a fundamental aspect of the common law right of freedom of movement. I do not think their removal from the objects section of the Act derogates from those fundamental common law principles. 5. It is not entirely clear how in the case of a show cause requirement the two tasks for the bail authority are to be approached. The scheme of the Act suggests a two-stage task in which the Court would first call upon the accused person to show cause why his or her detention is "not justified". Subsection 2 of s 16A provides that, if the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 of Part 3, which is the unacceptable risk test. That test applies to all offences. 6. Subsection 1 of s 16A provides that the bail authority must refuse bail unless the accused person shows cause in the stated terms. The scheme of the Act thus appears to be that, upon cause being shown, and only at that point, the Court must proceed to assess any bail concerns in accordance with Division 2. That impression is fortified by the provision of s 19(3), which states "if the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk." 7. Upon analysis, however, and having had the benefit of hearing a large number of bail applications over the past week, I have reached the conclusion that the apparent simplicity of a two-stage approach is illusory. The content of the requirement, as already noted, is to show cause why a person's detention is "not justified". 8. Having regard to the content of that requirement, it is difficult to conceive how an applicant could show cause without addressing any relevant bail concerns. The issue whether an applicant has shown cause in my view must inevitably be informed by the outcome of the risk assessment, since the Act contemplates that the detention of a person who poses an unacceptable risk of the kind identified is justified. Conversely, it is difficult to conceive of a finding that an applicant had failed to show cause in circumstances where there was no unacceptable risk. The absence of any unacceptable risk would, I think, inevitably point to the conclusion that the detention was not justified, bearing in mind the common law principles to which I have referred. 9. The Crown in the present case provided detailed and helpful written submissions addressed in part to those questions. The submissions opened with the proposition that a person charged with a show cause offence "would normally or ordinarily be refused bail" and faces a heavy burden to persuade the Court that bail should be granted. 10. In my view, the application of the Act cannot and should not be generalised in those terms. While the precise content of the show cause requirement is elusive, it is not in my view to be construed as imposing so fundamental an intrusion on the common law principles to which I have referred. The Court should be careful not to construe the Act in such a way as to put a gloss on the terms of the section, which appears to me to require the Court to approach each case on its merits with no presumption as to the likely or proper outcome of the release application. 11. The scheme of the Act prior to the amendments was to focus on risk in individual cases. That assessment was guided by a list, which was both exhaustive and mandatory, of the matters Court was required to consider in assessing risk. That remains the case after the amendments. In particular, it remains the case that, under Division 2 of Part 3, the approach of the Court falls into a dichotomy. If there is an unacceptable risk, the Court must refuse bail; if there is no unacceptable risk, the Court must grant bail. 12. There is nothing in Division 1A of the Act (which contains the provisions relating to the show cause requirement) to suggest the imposition of any additional requirement, that is, there is nothing to suggest that in a case where there is no unacceptable risk, the Court could still refuse bail unless the applicant was able to show cause. To construe the Act in any other way would, in my view, subvert the well-established principles of the common law. 13. Section 16A must nonetheless be construed so as to have some work to do. In my view, the section should be understood to have the object of instructing the bail authority that, in the case of a show cause requirement, the circumstance that triggered the requirement is likely to inform the assessment of any bail concerns and the evaluative judgment as to the acceptability of any risk established. In some instances, the circumstance giving rise to the show cause requirement is in itself likely to reveal a bail concern. For example, s 16B(1)(d) specifies, as show cause offences, a series of offences relating to firearms, pistols, prohibited weapons and the like. Similarly, s 16B(1)(f) specifies as show cause offences offences under the Drug Misuse and Trafficking Act 1985 (NSW) involving the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug. 14. The Act guides the court that it must have regard to the common or notorious features of such offences. For example, a strong Crown case as to the commission of an indictable offence involving the unlawful possession of a pistol in a public place would guide the Court in the assessment of a bail concern as to the safety of the community. Similarly, a strong Crown case alleging an offence under the Drug Misuse and Trafficking Act of the kind to which I have referred would guide the Court as to the likelihood of an applicant re-offending, the insidiousness of an addiction to some prohibited drugs, such as Ice, being a matter of notoriety. 15. Importantly, I would construe s 16A as imposing on an applicant the task of persuading the Court that any such obvious bail concern did not give rise to an unacceptable risk of the kind specified in the Act. In saying so, I do not mean to suggest that the Act imposes any formal onus of proof in the traditional sense. The Act makes it clear in s 32 that any matter that must be decided by the bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities, but the rules of evidence do not apply in that task. Rather, the bail authority may take into account any evidence or information it considers credible or trustworthy in the circumstances: see s 31 of the Act. 16. But the Court should not approach the show cause requirement, in my view, on the ground that an applicant must go further in order to show cause why his or her detention is not justified or bears any higher onus than to persuade the Court that there is no unacceptable risk having regard to the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A. 17. I turn to consider the present application in accordance with that approach. The matters proposed on behalf of the applicant in order to show cause why his detention is not justified were three-fold. First, it was noted that there are 28 charges and a substantial amount of evidence. It was submitted that the complexity of the case is such that the applicant needs to be free in order to prepare for the trial. That is one of the matters the Court is required to consider under s 18(1)(l). 18. Secondly, the applicant relied upon what was alleged to be the weakness of the Crown case: see s 18(1)(c) of the Act. 19. Thirdly, the applicant relied upon the length of time he has been in custody. The applicant was arrested on 20 September 2013 and has been in custody since that date. That is a lengthy period of remand and is undoubtedly a factor relevant to the assessment as to whether any bail concerns is unacceptable. The passage of time may not in fact alter or reduce a particular risk identified by the Crown. But I think the Act contemplates that, as time wears on, a risk may come to be regarded as more acceptable (or less unacceptable) when balanced against a period of detention that is so long as to offend notions of fairness and justice. 20. Returning to the complexity of the case, it may be accepted that this is a complex Crown case and one the preparation for which would be facilitated by being free in the community rather than in custody. 21. I will return to consider the alleged weakness of the Crown case in the context of my assessment of the bail concerns identified by the Crown. The Crown identifies three of the bail concerns listed in s 17 of the Act: First, a concern that the applicant will fail to appear; secondly, a concern that the applicant will endanger the safety of victims, individuals or the community; and thirdly, a concern that the applicant will interfere with witnesses or evidence. 22. As to the concern whether the applicant will fail to appear, the Crown points to the fact that the applicant has a prior instance on his criminal history of failing to appear to respond to a charge of breaching a domestic violence order. Separately, the Crown relies on the seriousness of the charges and the asserted strength of the Crown case. 23. In assessing that concern I am required to have regard to the bail conditions that could reasonably be imposed to address the concern. The bail proposal put forward on behalf of the applicant was established by the evidence of two witnesses. One was [name omitted], the partner of the applicant's father. She has been in a relationship with the applicant's father for about 12 months and has met the applicant only a couple of times whilst he has been in custody. She gave evidence that she would not be concerned about having the applicant released from custody and living in her home. However, it was clear from her evidence that the applicant would not be supervised at all times. She acknowledged that if a curfew order were imposed there would not always be someone there. Her evidence did not persuade me that she had any deep understanding of the nature of the matters alleged against the applicant and she did not appear to know him very well. 24. Separately, the applicant's mother gave evidence that she would deposit $5,000 as surety for his bail. 25. It is convenient to consider the two remaining bail concerns identified by the Crown together, that is, the risk that the applicant will endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence. A primary consideration in assessing that bail concern comes from my consideration of the material in the Crown brief tendered on the bail application. It is convenient in that context to address the contention put forward on behalf of the applicant as to the alleged weakness of the Crown case, particularly in respect of the charge of murder. 26. The charges allege, in brief summary, a series of acts committed by the applicant towards a [young] boy. The applicant had been in a relationship with the boy's mother only since the beginning of 2013. He appears quickly to have earned her trust and converted her to a style of parenting which many would find offensive. For obvious reasons, it is not appropriate to descend to the detail of the evidence or the nature of the individual charges. In short, however, it should be observed that the murder charge follows a contention that the applicant forced the boy to stand for a lengthy period of time on a coffee tin, evidently by way of punishment, ultimately resulting in injuries that caused his death due to a deliberate act of the applicant. 27. The Crown case is based alternatively on direct murder on the basis either of an intention to kill or an intention to inflict grievous bodily harm. Intention will plainly be a matter of inference, there being no direct witness to an event which caused the death of the child. The evidence in the Crown case includes interviews, both with the applicant and the boy's mother, which it appears will suggest a defence of accident, that is that the boy fell from a pogo stick and suffered a head injury. The Crown case includes an autopsy report which casts doubt on that version of events. Without descending to the detail of the material in the Crown brief, which I have considered carefully, I do not accept the submission that there is a weak Crown case so far as the charge of murder is concerned. 28. The case is put in the alternative on the basis that, even if the applicant was not directly involved in the act which caused the death of the child, he would be guilty of murder on the ground of reckless indifference, having allowed a period of about 24 hours to pass before any help was called for the child in circumstances where it is alleged the child was suffering obvious symptoms of a potentially fatal head injury. Either on the direct basis or on the basis of reckless indifference, my assessment of the evidence has not persuaded me that this could properly be described as a weak Crown case. 29. The strength of the Crown case is a matter that informs both the risk of failure to appear and the risk of interference with witnesses. The material contained within the Crown brief sustains the submission put by the Crown that the applicant could be characterised as a person who is both manipulative and persuasive. 30. I have reached the conclusion that there is a risk that, if granted bail, he would fail to appear. I do not think that risk is mitigated at all by the bail proposal offered. The sum of $5,000 and the risk of his mother losing that amount would do little to obviate the risk, in my view. The residential condition imposed and any curfew would not provide any protection. I should note in that context the applicant stated that he would consent to any conditions the Court saw fit to impose, but I cannot conceive of any conditions that would mitigate against that risk and, accordingly, I consider it to be an unacceptable risk. 31. As to the risk of endangering the safety of victims or interfering with witnesses or evidence, a considerable amount of material is set out in the views of the police officer in charge of the investigation. The views of the victim or any family member of the victim are a mandatory consideration following the amendments to the Bail Act: see s 18(1)(o). It is plain from the Second Reading Speech in respect of the Amendment Act that parliament contemplated that those views would be put before the Court in the form of a statement by the officer in charge of the investigation and that the Court could and, indeed, must have regard to such material. In doing so, the Court should, of course, take a careful approach and not accept in an unqualified way any statement made by a policeman about a risk to a victim, but in the present case the views of the police officer provide ample support for the conclusion that there is an unacceptable risk of the two kinds to which I have referred. That is a risk which I do not think can be mitigated by the imposition of any conditions. 32. It follows that I am satisfied that there are unacceptable risks of each of the three kinds identified by the Crown. In my view, it follows inexorably that the applicant has failed to show cause why his detention is not justified. It also follows in accordance with s 19 of the Act that I must refuse bail. The application is refused. ********** Amendments 05 March 2015 - typographical error in paragraph 11 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: 05 March 2015