Supreme Court New South Wales Medium Neutral Citation: R v Mel [2018] NSWSC 1463 Hearing dates: 27 September 2018 Date of orders: 28 September 2018 Decision date: 28 September 2018 Jurisdiction: Common Law Before: Harrison J Decision: Bail refused Catchwords: BAIL – release application – show cause offence – where previous application refused by the Court – where all relevant material presented in the first application – where no change in circumstances Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 26, 74 Cases Cited: Director of Public Prosecutions v Hourigan [2017] NSWCCA 170 R v Fallon (a pseudonym) [2017] NSWSC 1796 Category: Principal judgment Parties: Lyheng Mario Mel (Applicant) Crown (Respondent) Representation: Solicitors: Blair Criminal Lawyers (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2018/244710 Publication restriction: Nil Judgment 1. HIS HONOUR: Lyheng Mario Mel applies for bail. He was arrested on 4 May 2017 and charged with several offences, including one count of conceal serious indictable offence, two counts of possess prohibited pistol without authorisation and one count of participate in a criminal group. Mr Mel has been in custody bail refused since the date of his arrest. His trial is scheduled to commence in the Sydney District Court on 29 January 2019. 2. Mr Mel made a bail application on 15 September 2017. That application was refused by Bellew J. As a result, Mr Mel's application is confronted by the provisions in s 74 of the Bail Act 2013. That provision relevantly provides as follows: "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. … (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." 1. Section 74 was recently considered by Campbell J in R v Fallon (a pseudonym) [2017] NSWSC 1796. His Honour said at [13]–[15]: "[13] The purpose of s 74 Bail Act is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. It's relevant to bear this legislative purpose in mind when one considers that what is being proposed is a third application to this Court, an eighth application overall (if one includes the detention application). This history of repeated release applications is, I think, relevant to my evaluation of the case. [14] Section 74 needs to be interpreted in its context in the Act, and in particular in Part 7 of the Act. Section 71 requires bail applications to be dealt with as soon as reasonably practicable; s 72 makes it mandatory for a court to entertain any release or variation application made by an accused person on the first appearance in substantive proceedings for the offence; s 73 empowers a court to refuse to hear a bail application on other occasions, if satisfied the application is frivolous, vexatious, without substance, or has no reasonable prospects of success; and s 75 provides that all bail applications, including subsequent applications, are to be dealt with as a hearing de novo. Sections 73 and 74, in my view, work together to emphasise the restraint with which a court is to approach subsequent applications made to that court. [15] It is also well to emphasise the word 'material' where it appears in the expression 'material information relevant to the grant of bail' in s 74(3)(b) and also in s 74(4)(a), for that matter. The additional information sought to be presented will be material if the applicant satisfies the court that the outcome of the previous release application might have been different had the additional information been presented then: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353, by Mason CJ. This is an objective legal standard involving a mixed question of fact and law. It requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result." 1. I respectfully adopt those views. 2. Mr Mel relies upon the grounds in ss 74(3)(b) and (c) to overcome the hurdle in s 74(1). In support of that, Ms Caligiore, who appears for Mr Mel, relies upon the following: 1. The Crown case has been further weakened as a result of the cross-examination of Mr Watherston, the Crown's DNA expert, at Mr Mel's committal. 2. Mr Mel's brother, Hock Hoeun Mel, is now prepared to deposit $4,400 as a surety. 3. The existence of further delay in having the matter finalised. In the previous application, Bellew J anticipated that the matter would go to trial sometime in 2018. Ms Caligiore noted that the matter is now listed for trial in January 2019. 4. The conviction of Mr Mel's co-accused, Zaidoun Mazin Salem Al Majid, for possessing the two pistols that are the subject of the charges against Mr Mel. Ms Caligiore contends that, as there is no suggestion of joint possession, Mr Al Majid's conviction is consistent with Mr Mel's innocence. 1. As Mr Mel allegedly committed these offences, some of which are serious indictable offences, while he was on bail, he is required to show cause as to why his continued detention is not justified: Bail Act, ss 16A, 16B(1)(h)(i). In the previous bail application, Bellew J was satisfied that Mr Mel had shown cause having regard to delay and the weaknesses in the Crown case, particularly relating to the possess prohibited pistol offences. Despite this, his Honour refused bail on the basis that there was an unacceptable risk that Mr Mel would continue to commit further offences. His Honour considered Mr Mel's criminal history, which was said to demonstrate his "propensity for violence". His Honour also expressed "little confidence that the applicant would comply with any condition to which he was made subject". 2. The strength of the Crown case was considered by Bellew J in the previous application. His Honour said: "I am not in a position to make any affirmative determination of the strength of the Crown case, for the simple reason that on an application such as this I do not have the entirety of the evidence. What other evidence there may be to link the applicant to the possession of the firearms is unclear. However, there is some force in the submissions advanced on behalf of the applicant in this respect. In the absence of being provided with more information as to the entirety of the evidence relied upon by the Crown, it is difficult to come to an affirmative conclusion that the Crown case could be said to be weak. There are, however, a number of significant and important evidentiary issues which the Crown will need to address. On the basis of what has been put to me, I am satisfied in the circumstances that cause has been shown." 1. The evidentiary issues identified by his Honour related to DNA evidence found on the pistols. In this respect, his Honour said: "The primary focus of the submissions on the issue of whether or not the applicant had shown cause was on what was said to be the lack of strength of the Crown case. Shortly put, the submission advanced on behalf of the applicant was that it was clear that the charges contrary to the Firearms Act 1996 were dependent upon DNA analysis. It was submitted that the prosecution was not in a position to prove (inter alia) how long the DNA which was found on the two pistols, to which the applicant is said to have been a contribution, had been there. The applicant's solicitor pointed out that in one case the pistol had been reported stolen on 25 May 2015. It was submitted that in order to make out its case on that charge it would be necessary for the prosecution to establish that between 25 May 2015 and 30 March 2016 the applicant had been in possession of that pistol in the State of New South Wales (bearing in mind that it had been reported stolen from Victoria). As to the second matter, and bearing in mind that the pistol had been stolen from the Northern Territory on 30 July 1999, it was submitted that the Crown faced an even more difficult task in establishing its case. I was also taken in the course of argument to the results of the DNA analysis. Those results are contained, in part, in a certificate of 17 August 2016. That report details (at item R5) the results of an analysis of a trace swab of the handgrip of the Glock pistol which included the fact that a mixed DNA profile was recovered and that Christopher Ian Preece could not be excluded as a contributor. It was pointed out that Mr Preece is a police officer. It was submitted that the conclusion should be reached in those circumstances that there had been contamination, and that this further eroded the strength of the Crown case in respect of that count, and that for all of these reasons cause had been shown by the applicant". 1. Ms Caligiore contends that the Crown's case has been further weakened by the cross-examination of Mr Watherston at Mr Mel's committal. For example, and significantly for present purposes, Mr Watherston conceded that he could not exclude the possibility that Mr Mel's DNA was transferred to the pistols through a secondary transfer. However, in my view, these are matters that have been canvassed by his Honour in the previous application. The question of who had possession of the guns and at what point in time, and whether the DNA evidence presented by Mr Watherston could prove this, was central to his Honour's consideration of the strength of the Crown case. Accordingly, this information does not represent "material information" that was not before his Honour on the previous occasion or a relevant change in the circumstances. 2. The availability of a surety in this case is not relevant in determining whether to grant bail. As the Crown has not alleged that there is a concern that Mr Mel will fail to appear at any future proceedings, s 26(5) of the Act precludes the imposition of a security requirement. 3. In relation to delay, his Honour said: "… I have already observed that the matter is still before the Local Court. It can be anticipated that it will not come to trial until sometime in 2018. Clearly, that is a significant time and time spend in custody may be a relevant factor in considering whether cause has been shown, although delay (and even significant delay) of itself is not sufficient to show cause: Director of Public Prosecutions v Hourigan [2017] NSWCCA 170 at [11]." 1. His Honour accepted that Mr Mel would spend some time in custody before the matter would be finalised, and this was relevant to the determination that Mr Mel had shown cause. In my view, if his Honour had been aware that the trial might not commence until January 2019, that would not have affected the outcome of the previous application: see R v Fallon (a pseudonym) at [15]. This is so having regard to the fact that the primary basis upon which the application was refused was the unacceptable risk that he might commit a further serious offence. Accordingly, the further delay is not "material information" within the meaning of s 74(3)(b). 2. The delay also does not represent a change in the circumstances. His Honour adverted to the likelihood of significant delay. The mere fact that the time Mr Mel is to spend in custody awaiting trial has slightly exceeded his Honour's original estimate does not represent a relevant change in the circumstances for the purpose of s 74(3)(c). The position may be different if, for some reason, the actual delay were to go well beyond what was originally anticipated. 3. In my view, the conviction of his co-accused is not relevant in determining whether to grant bail to Mr Mel. Although it may have some relevance in relation to the strength of the Crown case, as noted above, that was dealt with by his Honour on the previous occasion. 4. Mr Mel has failed to overcome the hurdle in s 74(1) of the Act. In these circumstances, bail is 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: 12 December 2019