Supreme Court New South Wales Medium Neutral Citation: R v Bartley [2017] NSWSC 243 Hearing dates: 13 and 14 March 2017 Date of orders: 16 March 2017 Decision date: 16 March 2017 Jurisdiction: Common Law Before: Harrison J Decision: Bail refused Catchwords: BAIL – show cause offence – substantial Crown case – whether bail conditions can mitigate unacceptable risk of committing another serious offence – unsatisfactory prospects of accommodation – mental illness Legislation Cited: Bail Act 2013 Category: Principal judgment Parties: Tumi Bartley (Applicant) Crown (Respondent) Representation: Solicitors: Office of the Director of Public Prosecutions (Respondent) File Number(s): 2016/375710 Publication restriction: Nil Judgment 1. HIS HONOUR: Tumi Bartley applies for bail. She was born in December 1992 and is currently 25 years of age. Ms Bartley has been in custody since the date of her arrest on 26 February 2016 charged with wounding with intent to cause grievous bodily harm. That is an offence that carries a maximum penalty of 25 years imprisonment. 2. The Crown opposes bail. Pursuant to s 16A Bail Act 2013 Ms Bartley is required to show cause why her continued detention is not justified. She was on bail when the events giving rise to the charges are alleged to have occurred. 3. It is alleged that on Friday 26 February 2016 Andrew Hutchinson was standing on the eastern footpath of Darlinghurst Road, Potts Point. It is alleged that he was approached by Ms Bartley who unexpectedly slashed the right side of Mr Hutchinson's neck with what was initially believed to be a pair of scissors. Mr Hutchinson sustained a 15cm laceration to his neck. Ms Bartley turned and walked from the scene. She was later apprehended by police at a bus stop on the western side of Darlinghurst Road. 4. Ms Bartley has a significant history of mental illness. I have been provided with two medical reports, the first from Associate Professor Kimberlie Dean dated 5 July 2016 and the second from Dr Stephen H Allnutt dated 18 October 2016. It is apparent from the opinions expressed by both doctors that Ms Bartley's fitness to plead has been, and is likely to remain, a significant issue in the proceedings. Her matter is currently listed in the District Court on 4 December 2017 for the allocation of a trial date. 5. Ms Bartley appeared for herself. Allowing for difficulties associated with that fact, the burden of her submissions in relation to the show cause requirement is that she will have been in custody for something approaching or possibly in excess of two years on remand before she comes to trial if bail is not granted. Ms Bartley made no submissions concerning the strength or otherwise of the Crown case. 6. In my opinion, although the prospective delay between arrest and trial in this case is very long, and on any objective analysis unacceptable, there seems little to be said against the proposition that the Crown case is substantial and that a conviction is not unlikely. The extent to which Ms Bartley's psychiatric condition affects either the issues that arise in her defence at trial or the anterior question of her fitness to plead necessarily remains unresolved at this time. 7. Doing the best I can I am not satisfied that Ms Bartley has on balance shown cause why her continued incarceration is not justified. 8. Notwithstanding my view, the Crown has identified a number of bail concerns. Because of the potentially unpredictable nature of Ms Bartley's mental condition and its effect upon her behaviour, it is difficult to be satisfied that appropriate conditions of bail could be crafted so as to mitigate what would otherwise be the unacceptable risk that she might commit another serious offence. Even if that were not so, Ms Bartley has been unable to provide me with an indication of where she might live on a secure medium to long term basis if bail were granted. Despite her best efforts Ms Bartley was only in general and unsatisfactory terms able to point to the prospect of temporary accommodation if she were released now. 9. It is apparent that Ms Bartley's present medical condition requires and should be given immediate professional attention. As I have indicated, there is a significant relationship between her medical state and the appropriate disposition of her criminal charge. 10. In the present circumstances it follows that bail should be refused. ********** 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: 16 March 2017