Supreme Court New South Wales Medium Neutral Citation: Benzce v R; Yates v R [2015] NSWSC 139 Hearing dates: 11 February 2015 Date of orders: 11 February 2015 Decision date: 18 February 2015 Jurisdiction: Common Law - Criminal Before: McCallum J Decision: Release applications granted Catchwords: BAIL - Legislation Cited: Bail Act 2013 (NSW), ss 3, 16A, 16B, 17, 18, 19, 20A, 31 Bail Amendment Act 2014 (NSW) Cases Cited: M v R [2015] NSWSC 138 Category: Principal judgment Parties: Dean Yates (Applicant) Jozsef aka Jozeph Benzce (Applicant) Regina (Respondent) Representation: Counsel: Solicitors: File Number(s): 2014/2184962015/7775 Publication restriction: None Judgment 1. HER HONOUR: On 11 February 2015 I determined release applications in these two proceedings. Since the proceedings each involved a show cause requirement under the Bail Act 2013 (NSW) ("the Act") as recently amended, I reserved my reasons so as to give a disciplined analysis of my understanding of the effect of the new amendments. 2. Since hearing those two applications I have determined a release application in a third case involving a show cause requirement (where bail was sought for the offence of murder). I have this morning given my reasons in respect of that application. It is convenient in giving my reasons for granting bail on the present applications to incorporate what I there said as to my view as to the proper construction of the provisions introducing the show cause requirement: 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". 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. 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. 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." 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". 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. 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. 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. 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 to which the 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. 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. 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 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. 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. 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. 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. 1. I turn against those principles to consider the applications in the present case. In the matter of Dean Yates, the applicant is aged 38 years. He was charged with a series of offences of violence, in the nature of domestic violence. The bail proposal put forward on his behalf was for him to undertake a course of full-time rehabilitation at Benelong's Haven Family Rehabilitation Centre. 2. The circumstances of the allegations against him plainly gave rise, as contended by the Crown, to a bail concern that there was a risk of his committing a serious offence and a risk of safety to the victim if he was released on bail. For the reasons explained in the passages set out above from the decision I have just given in the matter of M v R, the nature of the offences informs the Court's assessment of those risks. In the present case, the circumstance giving rise to the show cause requirement is the fact that the applicant was subject to parole at the time of the offences and the offences with which he now stands charged include a serious indictable offence. 3. The proposal for rehabilitation, however, indicates two things. First, the assessment permitting his admission to the facility for residential rehabilitation reveals a willingness to engage with the very issue that gives rise to the risk of committing a serious offence and a risk to the safety of the complainant. Secondly, in my view, the circumstances in which he would be residing at the residential rehabilitation programme themselves mitigate those risk. 4. For those reasons, adopting the approach I have explained, I was satisfied that the risk identified by the Crown could be adequately mitigated. 5. The Crown also submitted that there was a risk of non-appearance based on the applicant's background, including his criminal history, the strength of the prosecution case and the likelihood of a custodial sentence being imposed. Although those are always factors to which the Court must have regard, the Court should not do so on the strength of a formulaic approach. I did not think, having regard to the applicant's willingness to engage in rehabilitation, that there was an unacceptable risk of his failing to appear. It was for those reasons that I concluded that the applicant Dean Yates had satisfied the show cause requirement and that he should be granted bail. 6. Turning to the matter of Jozsef Benzce, the circumstances bear some similarities. The applicant stood charged with a series of relatively serious offences. The application carried a show cause requirement because he had committed or was alleged to have committed a serious indictable offence whilst on bail. It was noted on his behalf that his criminal history showed a finite period of offending, followed by an apparent period of recovery and a relapse explained by the death of his father. 7. The risk identified by the Crown was one of non-appearance and a risk of danger to the community on the basis of his "issues with illegal drugs". For substantially the same reasons as in respect of Dean Yates, I concluded that those factors, whilst plainly concerns to which the Court must have regard, were adequately mitigated by the drug rehabilitation proposal. 8. In reaching that conclusion, I do not mean to suggest that the proposal of residential drug rehabilitation will invariably or inevitably address bail concerns of the kind that arose in either of the present cases. However, that is frequently a factor which could readily be regarded as being acutely directed to the issue giving rise to the bail concern, which is also the issue that has triggered the show cause requirement. 9. It was for those reasons that I concluded that the applicant Joseph Benzce had satisfied the show cause requirement and that he should be granted bail. ********** 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: 02 March 2015