R v David Ewen [2017] NSWSC 1328

Supreme Court New South Wales

Medium Neutral Citation: R v David Ewen [2017] NSWSC 1328 Hearing dates: 28 September 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: Bail granted on conditions Catchwords: BAIL – sexual assault – serious allegations – alleged victim three years old – show cause – material omission in police facts – Crown case weak – bail proposal otherwise strong – bail granted Legislation Cited: Bail Act 2013 Court Suppression and Non-Publication Orders Act 2010 Crimes Act 1900 Crimes Sentencing Procedure Act 1999 Cases Cited: Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 R v Peter Tsallas [2017] NSWSC 64 Category: Principal judgment Parties: Regina (Crown) David Ewen (Applicant) Representation: Counsel: M Harper (Crown) T Game SC; P Nematalla (Applicant)

Solicitors: Director of Public Prosecutions (Crown) Crawford & Duncan Lawyers (Applicant) File Number(s): 2017/258061 Publication restriction: Non-publication order in respect of the first names of the applicant's children and names of the schools they attend.

EX TEMPORE Judgment 1. This is a bail application for a person facing a charge of sexually assaulting a very young child. 2. Section 578A of the Crimes Act 1900 prohibits the publication of any material that would tend to identify the victim or alleged victim of such an offence. For ease of reference the alleged victim will be referred to by a completely unrelated name, specifically "Helen". 3. On 11 August 2017, the applicant David Ewen was charged with one count of having sexual intercourse with a person under 10 years of age contrary to s 66A(1) of the Crimes Act and two counts of indecently assaulting a child under 16 years of age contrary to s 61N(2) of the Crimes Act. The maximum penalty for an offence under s 66A(1) is life imprisonment. 4. After the applicant was arrested he was refused bail. He was again refused bail in the Local Court on 17 August 2017. He has been in custody since then. An offence under s 66A(1) of the Crimes Act is a "show cause offence" under the Bail Act (see Bail Act s 16B(1)(a) and (b)). This means that the Court must refuse bail unless the applicant can show that his detention is "not justified" (s 16A(1)). 5. Senior Counsel for the applicant, Mr T Game SC contended that cause had been shown by a combination of an assessment of the strength of the Crown case, the strength of the applicant's community ties, his personal circumstances and the compelling nature, so it is said, of his bail proposal. It is clear that these matters, if established, can be considered in determining whether cause has been shown (see R v Peter Tsallas [2017] NSWSC 64 and Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 at [51] to [56]).