Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions v Hourigan [2017] NSWCCA 170 Hearing dates: 14 July 2017 Date of orders: 14 July 2017 Decision date: 20 July 2017 Before: Gleeson JA; Harrison J; Fullerton J at [1] Decision: 1. Revoke bail granted on 27 June 2017. 2. Direct that the respondent be taken into custody forthwith. Catchwords: BAIL – detention application – where respondent required to show cause why his continued detention is not justified – very strong Crown case – whether respondent's severe depressive illness amounts to satisfaction of the show cause requirement Legislation Cited: Bail Act 2013 Mental Health Act 2007 Cases Cited: A1 v R, A2 v R [2016] NSWSC 1288 Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185 Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 Director of Public Prosecutions v Tony Mawad [2015] NSWCCA 227 Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 R v BNS [2016] NSWSC 350 R v Kugor [2015] NSWCCA 14 R v McCormack [2015] NSWCCA 221 Trinh v R [2016] NSWCCA 110 Category: Principal judgment Parties: Crown (Applicant) Arron Hourigan (Respondent) Representation: Counsel: M Cinque SC (Applicant) M Ainsworth (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant) Michael Croke & Co Solicitors (Respondent) File Number(s): 2017/130917 Publication restriction: Nil Judgment 1. THE COURT: Arron Hourigan was granted conditional bail by Davies J on 27 June 2017. The Crown now makes a detention application pursuant to s 50 of the Bail Act 2013. 2. The proceedings in this Court were heard on 14 July 2017. The Court made the following orders at that time: 1. Revoke bail granted on 27 June 2017. 2. Direct that the respondent be taken into custody forthwith. 1. The Court indicated that it would deliver reasons for making those orders at a later date. Those reasons are set forth in what follows. 2. Background 3. Mr Hourigan is charged with a series of some 14 offences, including two counts of manufacture large commercial quantity of a prohibited drug and expose a child to that manufacturing process, one count of possess drug manufacture apparatus to produce prohibited drugs, one count of knowingly direct the activities of a criminal group, two counts of knowingly deal with the proceeds of crime, two counts of supply large commercial quantity of a prohibited drug and one count of possess unauthorised pistol. At least three of these alleged offences carry a maximum penalty of life imprisonment. 4. Mr Hourigan was originally arrested on 28 March 2017. He was refused bail the following day in the Burwood Local Court. He made an application for bail in that Court on 26 April 2017. That application was refused. 5. On 27 June 2017, Mr Hourigan made an application for release in the Supreme Court of New South Wales. Mr Hourigan was then required to show cause why his continued detention was not justified pursuant to ss 16A, 16B(1)(a) and 16B(1)(f) of the Bail Act as he is charged with three offences with a maximum penalty of life imprisonment, as well as an offence involving the manufacture of a commercial quantity of a prohibited drug. Davies J granted bail subject to a series of conditions including daily reporting and a surety of $250,000. Mr Hourigan was released to bail on 30 June 2017. The present application 1. A bail detention application in this Court is to be determined afresh under the Act and is not an appeal from, or a review of, the decision of the primary judge: see R v Kugor [2015] NSWCCA 14 at [4]; Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 at [4]; Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185 at [5]. However, the bail hearing may be more in the nature of a "new hearing" in which evidence relied upon in the earlier application may be relevant and the Court may have regard to the reasons of the primary judge, depending upon the circumstances of each case: see Trinh v R [2016] NSWCCA 110. The requirement to show cause 1. This Court in Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 outlined the basic principles that apply to a determination of whether an applicant has shown cause that his or her detention is unjustified: "[51] First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25]. [52] Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act. [53] Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9]. [54] Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63]. [55] Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act. [56] Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions." 1. The show cause requirement is a matter to be determined by consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances and not just by a consideration of those matters exhaustively listed in s 18 required for the unacceptable risk assessment: R v McCormack [2015] NSWCCA 221. However, it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test: Director of Public Prosecutions v Tony Mawad [2015] NSWCCA 227 at [12]. 2. Time spent in custody pending trial may be a relevant factor in considering whether an applicant has shown cause why his or her detention is not justified: R v BNS [2016] NSWSC 350 per Garling J at [62]; A1 v R, A2 v R [2016] NSWSC 1288 per Garling J at [102]. Significant delay however is not, of itself, sufficient to show cause. 3. In the present case the Crown submitted that the following matters are relevant to the show cause test: 1. Mr Hourigan was operating a large scale clandestine laboratory in the garage of his residential premises. As a result he is charged with a number of serious offences referred to earlier. The toxicology report indicates that two children living at the premises were substantially exposed to a number of drugs. The primary offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 2. The Crown case is that Mr Hourigan was the principal in a syndicate focused upon the manufacture and supply of prohibited drugs. Surveillance device material and telephone intercept material indicate that he directed activities regarding the supply and manufacture of prohibited drugs through the period of the investigation. 3. Some of the outstanding expert material has now been served. A report has been obtained from the Forensic and Analytical Science Service which indicates a total of 6.941 kilograms of 3,4-methylenedioxyamphetamine (MDA) and 3.01 kilograms of N-formyl-3, 4-methylenedioxyamphetamine relative to a number of the items seized from Mr Hourigan's garage. He has also now been charged with new offences of supplying not less than the large commercial quantity of MDMA and supplying not less than the commercial quantity of N-formyl-3,4-methylenedioxyamphetamine. 4. There is a very strong Crown case. The Crown brief includes both telephone intercept material and surveillance device material in which Mr Hourigan makes admissions about the manufacture of prohibited drugs. He was the only person who had access to the garage and had placed a unique lock on the door to gain access to the area underneath the house. This system involved the use of a pin code in order to do so. 5. If convicted Mr Hourigan faces a lengthy custodial penalty. Many of the charges carry substantial standard non-parole periods and three of the charges carry a maximum penalty of life imprisonment. 6. There has been no unexplained, preventable or excessive delay. 7. There is no special hardship such as urgent medical needs or extraordinary domestic duties. Mr Hourigan's domestic partner was and continues to be the primary caregiver for their two young children. Crown case 1. Mr Hourigan accepts that the Crown case against him is strong. Having regard to the material before this Court, but without descending into detail, that concession is uncontroversial and is properly made. It follows, and Mr Hourigan also accepts, that he would become liable to the imposition of a significant sentence of imprisonment if convicted. Basis of show cause 1. Both in this Court and before Davies J, Mr Hourigan sought to show cause why his continued detention was not justified by reference to his mental health condition. His Honour was satisfied that Mr Hourigan was suffering from a significant mental health condition, namely depression, for which in his Honour's opinion Mr Hourigan would be unlikely in custody to receive appropriate medical, including pharmacological, care and supervision. 2. In the proceedings before Davies J, Mr Hourigan relied upon the opinion of Mr Philip Gorrell, a psychologist, set forth in his report dated 15 April 2017. That report was prepared by Mr Gorrell following assessment of Mr Hourigan at the MRRC on 9 April 2017. He diagnosed Mr Hourigan as suffering from an acute major depressive disorder, considered that he was suffering from extreme depression and that he was in need of professional treatment. Mr Hourigan had a family history of significant depression and related mental health disorders. His Honour was presented with evidence to suggest that it may have been difficult for Mr Hourigan to obtain the necessary treatment and medication that he required if kept in a custodial setting. 3. Mr Gorrell prepared a further report that was tendered in this Court dated 12 July 2017. He proffered the opinion that with a long history of suffering from depression, and an associated family history, Mr Hourigan is very likely to relapse without proper psychiatric treatment. Mr Gorrell remained of the opinion that Mr Hourigan was suffering from a major depressive disorder. Such a condition requires regular medical reviews, medication and counselling if relapse is to be prevented. Mr Gorrell considered that Mr Hourigan would not need to be admitted to the psychiatric unit of a hospital given his state of mind when last examined and that the psychiatric medication then currently prescribed for him appeared to have made a significant improvement in Mr Hourigan's mental health. 4. Mr Gorrell offered this opinion: "If Mr Hourigan is returned to custody now, I realistically assume that the psychiatric treatment Mr Hourigan currently requires will not be provided and the opportunity for Mr Hourigan to overcome and/or learn to manage his depression will be lost; and he will most probably relapse to the state he was in when I assessed him on 9 April 2017." 1. For the purposes of this application the Crown relied upon the report of Dr Gordon Elliott, a consultant psychiatrist, dated 2 June 2017. Notwithstanding the date that it bears, it does not appear that Dr Elliott's report was provided to Davies J when the matter was before him. Part of Dr Elliott's report is in the following terms: "MENTAL STATE EXAMINATION Mr Hourigan presented as an overweight man with red hair and a red head complexion. He was showered and showed no evidence of the neglected self-care often encountered in individuals with severe mental illness. He did appear downcast and dysphoric and was briefly tearful when discussing his son. He also had a prominent sense of grievance about a perceived lack of appropriate mental health care in custody. He provided me with his only copy of Mr Gorrell's report and declined an offer for me to copy it. It was at this point he explained his paperwork had been read by other inmates leading to him being stood over for money. On this assessment his emotional state appeared reactive without features of severe melancholic depression. He was civil and expressed his gratitude at the end of the interview. There was no evidence of formal thought disorder or of psychotic symptoms and he was not agitated. He denied active suicidal thinking and although he reported a sense of helplessness and low mood, he also described a sense of hope and optimism that his legal matters would eventually be resolved in his favour. DIAGNOSIS Mr Hourigan does present with depressive symptoms. He describes low mood and a sense of low self-worth and self-disappointment. Whilst I would diagnose Mr Hourigan with a depressive disorder, I differ considerably from Mr Gorrell's opinion with regards to its severity. I consider that Mr Hourigan's depressive symptoms are mild to moderate at most. I also note inconsistencies to his presentation. Despite the readiness with which he volunteers symptoms of depression, and his expressed sense of grievance about not receiving mental health care in custody, it appears plain that he did not seek mental health care in the community. He now claims to have been using methamphetamines for more than five years as a means of dealing with depressive symptoms and it only now, after the event of his arrest, that he realises he needs mental health care. I have reservations about accepting this at face value. I would also note that he does not present with marked neurovegetative symptoms of depression or the psychomotor changes of an agitated or severe depressive illness. On this assessment there was no evidence of marked weight loss. He was not agitated on mental state examination and there was no evidence of the marked flattening of expressed emotion that occurs with a severe depressive illness. I also note on this assessment that he denied active suicidal thinking and he expressed a degree of hopefulness regarding his court matters. Mr Hourigan does have a diagnosis of substance use disorders. His history is of a severe stimulant use disorder and moderate severity benzodiazepine disorder. Methamphetamines commonly cause mood and anxiety symptoms, particularly when used in the pattern Mr Hourigan describes. It is also probable he experienced more severe problems with mood and anxiety symptoms early in his incarceration, following the abrupt cessation of his methamphetamine use. A differential diagnosis to his depressive disorder includes a substance induced mood disorder." 1. Dr Elliott concluded with the opinion that Mr Hourigan has a mild depressive illness. Dr Elliott differed from Mr Gorrell concerning Mr Hourigan's likely treatment pathway. He did not consider that it was likely that Mr Hourigan would currently be considered for admission to a public mental health facility. Dr Elliott did not consider that there were reasonable grounds to believe that Mr Hourigan was a mentally ill person within the meaning of the Mental Health Act 2007. Consideration 1. It is obviously not possible in an application such as this to form a concluded view about the precise nature and extent of Mr Hourigan's mental condition. Neither Mr Gorrell nor Dr Elliott was cross-examined. Although he cannot and should not be criticised for it, Mr Hourigan did not give evidence in this Court. 2. The current burden of the competing medical opinions appears to us to indicate that Mr Hourigan's depressive illness has stabilised in the community and that his treatment needs can and will be adequately met in the care of the custodial health services. It is a regrettable but unavoidable reality that, by reason of limited resources and high workloads, those charged with the medical supervision of inmates in the New South Wales prison system face significant challenges. However, it does not seem to us that Mr Hourigan can demonstrate that his position, having regard to his diagnosis of a depressive illness, sets him apart from other similarly placed individuals currently in custody. 3. As the authorities reveal, and as the language of the Bail Act makes plain, Mr Hourigan bears no onus or obligation to demonstrate special or exceptional circumstances. He does however have to point to factors that, whether alone or in combination, support a conclusion that his continued detention is not justified. One of the significant features of this case is the considerable strength of the Crown case and the inevitability that Mr Hourigan will be sentenced to a significant term of imprisonment if he is convicted on one or some of the current charges. It goes without saying that, in such circumstances, Mr Hourigan's mental condition will have to be monitored and treated in the custodial environment. 4. Mr Hourigan is 38 years of age. He informed Dr Elliott that he had "always been depressed". However, he did not describe to Dr Elliott that he then had pervasive or severe depression. He specifically denied weight loss and had been able to gain work and form a new relationship leading to the birth of his son. In addition, the intercepted telephone conversations that have been provided to this Court by the Crown do not appear, from a purely lay perspective, to indicate any form of altered thought process or functional deficit. In short, putting aside the somewhat enigmatic subject matter of the intercepted conversations, Mr Hourigan's words do not bespeak a particularly intrusive or disabling mental illness. 5. We are not in these circumstances satisfied that Mr Hourigan has shown cause why his continued detention is not justified. The orders of the Court are therefore as follows: 1. Revoke bail granted on 27 June 2017. 2. Direct that the respondent be taken into custody forthwith. ********** 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: 20 July 2017