R v Hird [2017] NSWSC 1400

Supreme Court New South Wales

Medium Neutral Citation: R v Hird [2017] NSWSC 1400 Hearing dates: 11 October 2017 and written submissions dated 12 October 2017 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Refusal to hear further bail application. Catchwords: CRIMINAL LAW – bail – application for bail – further release application – s 74 of the Bail Act 2013 (NSW) – whether a possibility of a plea being entered constituted changed circumstances under s 74(3)(c) – further bail application cannot be heard Legislation Cited: Bail Act 2013 (NSW) Cases Cited: EF v R [2015] NSWCCA 36 R v Daniel [2014] NSWSC 1968 R v Farrell [2016] NSWSC 1278 R v Hird (Supreme Court (NSW), Wilson J, 6 April 2017, unrep) R v Tasker (No 2) [2015] NSWSC 467 Robertson v R [2017] NSWCCA 205 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 May 2013 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 August 2014 Category: Principal judgment Parties: Regina (Crown) Ruby Hird (Applicant) Representation: Counsel: Mr I McLachlan (Applicant)

Solicitors: Mr M Harper, Office of the Director of Public Prosecutions (NSW) (Crown) Purcell Lawyers (Applicant) File Number(s): 2017/247899 Publication restriction: No

Judgment 1. At the hearing of Ms Hird's second bail application, a question arose as to the proper construction of s 74 of the Bail Act 2013 (NSW). That arises for consideration in this case, because Ms Hird has made a prior application which was refused by Wilson J on 6 April 2017, at a time when entry into a six month residential drug rehabilitation program was advanced as a consideration of bail, as it was also sought to be on this further application: see R v Hird (Supreme Court (NSW), Wilson J, 6 April 2017, unrep). 2. Section 74 provides: "74 Multiple release or detention applications to same court not permitted (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. (2) A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application. (3) For the purposes of this section, the grounds for a further release application are: (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence. (4) For the purposes of this section, the grounds for a further detention application are: (a) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (b) circumstances relevant to the grant of bail have changed since the previous application was made. (5) In this section, court does not include an authorised justice." 1. In the Second Reading Speech of the Bail Bill 2013 (NSW), when s 74 was enacted, the Attorney General said: "Proposed section 74 largely remakes provisions in existing section 22A of the Bail Act 1978 restricting second or subsequent release applications made to the same court. This has been the most controversial provision, particularly in relation to juveniles. The proposed section also extends these restrictions to second or subsequent detention applications made by the prosecution. It stipulates that a court is to refuse to hear a second or subsequent release or detention application unless there are grounds for a further application. In relation to release applications, proposed section 74 (3) sets out the grounds for a further application, including where there is relevant information that was not presented on the previous application and where relevant circumstances have changed since the last application. However, this provision includes an additional ground for a further application, not contained in the existing section 22A, which applies where the accused person is a child and the previous application was made on their first appearance for the offence. The Law Reform Commission's review noted the particular difficulties that can be faced by legal practitioners when taking instructions from juveniles at the early stages of proceedings. This additional ground for a further application has been included in recognition of that difficulty. The grounds for a further detention application in proposed section 74 (4) also include a change in circumstances and where there is new information relevant to the grant of bail. An example of circumstances that may qualify as grounds for a further detention application is where the accused enters a plea of guilty or is convicted of the offence following a hearing": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 May 2013 at 19844." 1. In the Second Reading of the Bail Amendment Bill 2014 (NSW), when s 74 was amended, the Attorney General said: "Section 74 permits a fresh application where there is new information or circumstances relevant to the grant of bail that were not previously presented to the court": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 August 2014 at 30506. 1. In issue between the parties was whether the matter still being in the Local Court, a co-accused having been charged and the parties having embarked on plea negotiations, which on Ms Hird's case was anticipated would result in the matter being committed for sentence when it next came before the Local Court, fell within s 74(3)(c). 2. A change in circumstance was also submitted to have flowed from the decision in Robertson v R [2017] NSWCCA 205. In that case the conclusions reached in EF v R [2015] NSWCCA 36 were followed, the Court concluding that the sentencing judge had erred in holding that precedent required that "trafficking in drugs to a substantial degree", absent "exceptional circumstances", required a sentence of full-time imprisonment to be imposed, without giving consideration to the sentence being served by way of an intensive correction order 3. It was common ground between the parties that the result of plea negotiations could establish a change in circumstance relevant to the grant of bail under s 74(3)(c). That must be accepted. A change in the charges laid or pressed against an accused, or entry of a plea by an accused, can all establish such a change. 4. That is because on every application for bail, the bail concerns which the applicant poses must be assessed and bail must be refused, if it is concluded that the applicant poses unacceptable risks of failing to appear; of committing a serious offence; of endangering the safety of victims; individuals or the community; or of interference with witnesses or evidence: s 19. The matters which must be considered in making such an assessment are those specified in s 18(1), namely: "(a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f) whether the accused person has a history of compliance or non-compliance with any of the following: (i) bail acknowledgments, (ii) bail conditions, (iii) apprehended violence orders, (iv) parole orders, (v) good behaviour bonds, (vi) intensive correction orders, (vii) home detention orders, (viii) community service orders, (ix) non-association and place restriction orders, (x) supervision orders, (f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed, (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A, (q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code), (r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism, (s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism." 1. That the mere entry into discussions about the possibility of a plea being entered, is a change in circumstances "relevant to the grant of bail" was, however, in issue. 2. I am satisfied that the Crown and an accused merely commencing such negotiations, which may or may not result in any agreement, does not satisfy the statutory requirement specified in s 74(3)(c). 3. In R v Farrell [2016] NSWSC 1278 McCallum J took the view that a change in trial date amounted in that case to changed circumstances: at [8]. In R v Daniel [2014] NSWSC 1968 Button J accepted that the time that had elapsed in that case, since the first bail application was refused, constituted a "change in circumstance": at [9]. In R v Tasker (No 2) [2015] NSWSC 467 Button J concluded that the entry of pleas of guilty established that circumstances had changed, indeed changed significantly. That , however, led his Honour to the result that it was no longer open to conclude that the applicant had shown cause why his detention was not justified: at [21]. 4. In this case, given all that arose for Wilson J to consider on Ms Hird's first application, I am satisfied that a co-accused having since been charged and that there are now plea negotiations on foot, which may lead to entry of a plea, does not establish a change "relevant to the grant of bail". The position will be different if those negotiations have an outcome which results in either an alteration in the charges laid or pressed, or Ms Hird entering a plea. 5. I am also satisfied that the conclusions reached in Robertson v R, do not give rise to a change in circumstances relevant to the grant of bail in Ms Hird's case. 6. Given the serious drug offending with which Ms Hird has been charged and the limited circumstances in which an intensive corrections order can be imposed on an offender, it is not apparent that what was decided in Robertson will be of practical relevance to her sentence, if she is convicted of the present charges. In any event, not only was Robertson concerned with sentencing, rather than bail, it followed what was decided in 2015 in EF. That this decision resulted in any change "relevant to the grant of bail" in Ms Hird's case, accordingly does not follow. 7. In the result, I consider that the Court cannot entertain Ms Hird's second application, s 74 providing as it does that the Court must refuse to hear the application, Ms Hird not yet having grounds for a further release application of the kind specified in s 74(3).