Supreme Court New South Wales Medium Neutral Citation: R v Davis [2020] NSWSC 472 Hearing dates: 29 April 2020 Date of orders: 30 April 2020 Decision date: 30 April 2020 Jurisdiction: Common Law Before: Wright J Decision: Bail variation application refused Catchwords: BAIL – Conditional bail previously granted – Variation application – Reporting condition not varied Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: R v Davis [2018] NSWSC 1831 Category: Principal judgment Parties: Blake Davis (Applicant) Regina (Crown) Representation: Counsel: C Taylor (Crown) Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2020/112294 Judgment 1. The applicant, Mr Davis, made an application under s 51 of the Bail Act 2013 (NSW) for variation of the conditions of his bail to remove completely the condition requiring him to report to police. 2. The Crown opposed the variation. 3. In determining this matter, it must be borne in mind that the application is to be decided on the balance of probabilities under s 32 of the Bail Act on the basis of evidence or information considered to be credible or trustworthy in the circumstances and the Court is not bound by the principles or rules of law regarding the admission of evidence, under s 31. 4. The background to this application is that the applicant has been charged with murder allegedly committed on 10 August 2018 when he is said to have struck the deceased on the head with a samurai sword in a street in Forest Lodge, after the deceased had allegedly committed an aggravated home invasion of the premises occupied by the applicant and the co-accused. The trial of the applicant and his co-accused has been listed for 6 weeks commencing on 9 November 2020. 5. Conditional bail was initially granted by Rothman J on 27 November 2018 and his Honour's remarks on that occasion are set out in R v Davis [2018] NSWSC 1831. As the applicant had been charged with murder, the applicant was required, on the application before Rothman J, to show cause on the balance of probabilities why his detention was not justified, in accordance with section 16A of the Bail Act. 6. After a review of the Crown case on the material before him, his Honour summarised a number of difficulties in the Crown case as follows, at [30]: "It seems to me that there is, or will be, some difficulty on the material before the Court in the Crown negativing, particularly given the positive evidence associated with the absence of motive, the subjective elements in self-defence or the defence of another. There are also very good grounds for provocation defences to arise, even on the limited basis that applies since the amendments, I think, in 2014." 1. On the basis of those difficulties, it was concluded at [31] that cause had been shown. His Honour then went on to consider the unacceptable risk test. 2. The bail concerns that arose in the case were described at [7]. However, given the conditions that were to be imposed, Rothman J concluded that there were no unacceptable risks that would prevent bail being granted, at [32]-[33]. 3. The conditions imposed at that time by Rothman J relevantly included, among others: 1. a condition that the applicant report daily to Springwood Police Station between the hours of 8 am and 6 pm; 2. curfew conditions, supported by an enforcement condition, in the following terms: "Not to be absent from [the premises in Lawson at which he was required to live] between the hours of 09.00 PM and 06:00 AM unless in the company of [the applicant's mother]. Not to be absent from the premises except in the case of a medical emergency to him or his mother or for the purpose of attending Court or a prearranged conference with the Applicant's legal advisors." 1. a condition that he undertake and accept electronic monitoring; and 2. a condition requiring provision of security by way of agreements to forfeit a total of $493,000 if the applicant failed to comply with his bail acknowledgement. 1. On 5 February 2019, the Local Court made a consent variation to the reporting condition to change the station from Springwood Police Station to Katoomba Police Station. 2. A year after bail was originally granted, an application to vary the bail conditions to remove the requirement for electronic monitoring was refused by Campbell J on 2 December 2019. Nonetheless, the bail conditions were varied by reducing the amount of security to be provided to $465,500 so as to enable another 12 months of electronic monitoring to be paid for. On that occasion, the record of the conditions apparently referred to reporting to Springwood and not Katoomba Police Station. 3. When the matter was before Fullerton J on 6 December 2019, the bail conditions were varied by consent to correct the station to which the application was required to report to Katoomba Police Station instead of Springwood. In addition, the reporting condition came to be varied, whether by clerical error or otherwise is unclear, so that the applicant was only required to report on Monday, Tuesday, Wednesday, Thursday and Friday between the hours of 6 am and 9 pm instead of daily reporting between the hours of 8 am and 6 pm. 4. The curfew conditions have not been varied. Notwithstanding their terms, it was agreed for the purposes of this application that, shortly after Rothman J's decision, his chambers confirmed that the condition concerning not being absent except for medical emergencies, to attend Court or for legal conferences was intended to apply only to the period between the hours of 9 pm and 6 am. 5. Accordingly, the present application is to be determined on the bases that: 1. there are no restrictions on the applicant's movements or whereabouts between 6 am and 9 pm; and 2. the reporting requirement was reduced from 7 to 5 days per week in December 2019 and the police station to which the applicant is to report between the hours of 6 am and 9 pm is Katoomba Police Station. 1. As I have noted already, the present application is that the conditions be varied by removing the reporting condition entirely. 2. On this variation application, the show cause test does not again arise for consideration given the terms of s 16A(1) of the Bail Act. Nonetheless, the bail concerns and risks which arise in relation to the applicant and the bail conditions which have been imposed and the effect of any variation of those conditions do fall for consideration, in accordance with ss 15 and 17 to 20A of the Bail Act. 3. In particular, in relation to the imposition of bail conditions generally and by variation, s 20A of the Bail Act provides: "(1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns. (2) A bail authority may impose a bail condition only if the bail authority is satisfied that: (a) the bail condition is reasonably necessary to address a bail concern, and (b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and (c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and (d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and (e) it is reasonably practicable for the accused person to comply with the bail condition, and (f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person. (3) This section does not limit a power of a court to impose enforcement conditions." 1. The bail concerns and risks which the Crown identified as now arising in the applicant's case are: that the applicant will fail to appear at any proceedings for the offence; that the applicant will endanger the safety of victims, individuals or the community; and that the applicant will interfere with witnesses or evidence: s 17(2)(a), (c) and (d) of the Bail Act. 2. In the circumstances and largely for the same reasons as Rothman J and Campbell J were satisfied that those concerns and risks arose and having regard to the material before the Court by way of the Crown Case Statement as well as the Statement of Facts submitted by the Applicant prepared for the hearing on 2 December 2019 (the Applicant's Statement of Facts), I am also satisfied that these concerns and risks identified by the Crown arise at present. 3. It is clear that the reporting condition, as well as the other conditions imposed by Rothman J, seek to address each of the relevant bail concerns and risks. 4. The applicant submitted that the reporting condition was no longer appropriate on a number of bases. 5. First, the applicant contended that the Crown case is weak, relying on the comments of Rothman J at [30], which have been quoted already. In addition, the applicant provided the Applicant's Statement of Facts, which was said to be based upon the material provided in the Crown brief of evidence. It was in effect submitted that the weakness of the Crown case indicated that the risks in relation to the applicant were now such that the reporting condition was no longer reasonably necessary. 6. It appeared to me that the Applicant's Statement of Facts was a possible description of the circumstances of the alleged offending based on some of the material. However, it was not, in my view, the only way in which the material provided in the Crown brief of evidence, which included new statements not before Rothman J, could be viewed. As the Crown submitted, it was also open to conclude on that material that, at the relevant times, the deceased was running away from both the applicant and his co-accused and the deceased had nothing in his hands at any time, contrary to the co-accused's suggestion that the deceased had stolen her black bag and later had pointed a gun at her. It would also be open to conclude that the co-accused caught up to the deceased and pulled him to the ground including by his shirt and that, whilst the deceased was on the ground on his knees and elbows or hands and in the process of getting back up, the applicant struck the fatal blow to his head. In addition there is also now material in the Crown case concerning the conduct of the applicant and his co-accused after the alleged killing of the deceased. 7. Notwithstanding this, there are clearly arguable defences that arise in the present case, and I have taken these into account. 8. In my view, however, it could not be said that the Crown case is weaker than it was when the matter was considered by Rothman J and there is a distinct possibility that it is somewhat stronger as a result, for example, of the additional statements obtained. 9. In these circumstances, I do not accept that any of the risks associated with the bail concerns in relation to the applicant, which have been identified in this matter and which I find do rise, have lessened since November 2018. 10. Secondly, the applicant submitted that he has no history of violence, no record of criminal convictions and no record of ever having previously been charged by police. I accept that this is the case and take it into account, but this is also a matter which Rothman J and Campbell J took into account when they considered the appropriate bail conditions to be imposed. 11. Thirdly, it was submitted that the applicant has been strictly compliant with his existing bail conditions and even when his ankle bracelet broke he self-reported the incident and took no steps to flee at that time and, thus, it could be inferred that any risk had been shown to be reduced. 12. In my view, compliance with existing bail conditions is not a matter which supports the proposed variation to those conditions. Such compliance is doing no more than what the orders of the Court require. I agree with the comments of Campbell J on 2 December 2019 to the effect that strict compliance with the existing bail conditions does not demonstrate that the conditions are no longer necessary. On the contrary, it tends to demonstrate that the conditions are having the intended effect of minimising the risks that would otherwise be unacceptable. 13. Fourthly, the principal matter relied upon by the applicant as justifying the removal of the reporting condition was submitted to be the risk created by the current coronavirus or COVID-19 pandemic. There is evidence, which I accept, that the applicant's 63 year old mother has emphysema and asthma and an enlargement of the right heart ventricle, including specifically chronic obstructive pulmonary disease. I also accept that this renders her particularly vulnerable to adverse consequences if she were to contract COVID-19. 14. It appears that, when the applicant was originally granted bail, his mother moved from Queensland to live with the applicant in his brother James's house at Lawson. I accept that since the outbreak of COVID-19, the applicant's mother has been strictly self-isolating, as she indicated in her letter which was before the Court. 15. One part of the applicant's submission was that, given the special vulnerability of his mother, she should not be exposed to the increased risk of contracting COVID-19 by a member of her household being exposed to an uncontrolled environment five times a week, as a result of complying with the reporting condition. It was also submitted that the applicant, despite his lack of vulnerability, should also not be exposed to any unnecessary risk, especially when "it is the express policy of the government that individuals should practice isolation and social distancing". It was said that the continued reporting to police places at risk: the applicant's mother; the applicant; the co-accused; and, the general community. 16. The applicant submitted that these considerations together with the other existing stringent conditions rendered the reporting condition more onerous than necessary and not reasonably necessary to address the bail concerns. 17. I do not accept this submission. 18. While it can be accepted that reporting to Katoomba Police Station does pose a risk, in my view and having regard to the information provided in the Crown bundle concerning the Katoomba Police Station, the incidence of COVID-19 in the Blue Mountains region and later information, and the governmental measures in place to minimise the further spread of the virus in the community, I do not accept that the risk of infection of the applicant, the co-accused or the community generally would be such as to justify removing the reporting condition. Indeed, the exemption from isolation given under the relevant public health order in cases of gathering at, or travelling to, places in order to fulfil legal obligations, including complying with bail conditions, indicates that the governmental authorities do not consider any risk inherent in such compliance is sufficient, at this stage, to outweigh the benefits and community interest in having such legal obligations properly complied with. 19. As to the risk to the applicant's mother, which I accept is a serious concern; it appears to me that that risk would not be appropriately managed simply by removing the condition that the applicant report on five days a week to the police station. 20. It can be noted, at this point, that the co-accused's bail conditions also require her to live at James's house with the applicant and his mother. She is also required to report to police on Monday, Tuesday, Wednesday, Thursday and Friday and reports at Katoomba Police Station. The material before the Court indicates that the applicant and his co-accused report to police together. The co-accused also made an application for variation of her bail conditions to delete the reporting condition, but that application was withdrawn on the same day that the applicant's variation application was heard. Accordingly, even if the applicant's reporting condition were removed, another member of the household would still have to report. Thus, the risk of the applicant's mother contracting COVID-19 because of a member of the household reporting to police would not be effectively reduced or eliminated by removing the applicant's reporting condition. 21. Further, it was suggested that the applicant and the co-accused ran an increased risk of contracting COVID-19, thereby exposing the applicant's mother to greater risk, because they were required to report and this could involve taking public transport. When the applicant and his co-accused report to Katoomba Police Station they have, at times, used his mother's car. It was explained, in a text message from the co-accused to her solicitor which was provided to the Crown and was in evidence in this matter, that they used this car, as the applicant's and the co-accused's car had broken down. It was suggested that the applicant's mother's car is not always available for this purpose and, if not, the applicant and the co-accused would be required to take public transport in order to report. It is difficult to understand, however, why the applicant's mother car would not generally be available, on each week day at some time between 6 am and 9 pm, if she is strictly self-isolating at James's home in Lawson, as I accept she is. I find it unlikely that the applicant and the co-accused would be required to use public transport to travel to Katoomba Police Station because the applicant's mother's car or some other private vehicle was not available to them. 22. The bail conditions as they presently stand do not prevent the applicant being absent from his place of residence between the hours of 9 PM and 6 AM if he is in the company of his mother. At other times, there is no restriction on his movements. These conditions relating to his movements do not appear to me to be particularly stringent and they do involve the potential for the applicant and his household to be exposed to the risk of contracting COVID-19. 23. Judging from the evidence in relation to where he was on three days last week in addition to reporting to police, it appears that the applicant attended the dentist and went to a used car yard. This suggests that the applicant did not consider these activities would put his mother or others at any significant risk. It is difficult to accept that, if the applicant travelled by private vehicle to Katoomba Police Station and observed appropriate social distancing he would be exposing himself or his household to substantially greater risk than he did by his other activities last week. The evidence included information relating to the social distancing measures taken at Katoomba Police Station and the number of persons likely to be present in the station at any one time. It did not appear to me that there was a higher risk of contracting COVID-19 at that station compared to the risk at a dentist, a used car yard, buying essential groceries or similar activities. 24. It appears that the applicant's concerns for his mother could more properly be addressed in a number of other ways. For example, by the applicant and the co-accused strictly self-isolating in the residence with the applicant's mother and only being permitted to leave the residence with the prior agreement of the officer in charge or in a medical emergency. This could be appropriately monitored, in the applicant's case, by the electronic monitoring service which supervises the applicant's electronic monitoring under the existing conditions. The co-accused's bail conditions would probably also need to be revisited if such an approach were adopted. 25. Alternatively, the applicant's mother could find alternative accommodation away from her son and his co-accused or the applicant and his co-accused could find alternative acceptable accommodation away from his mother, and the bail conditions of the applicant and the co-accused could be sought to be varied to reflect such changes. 26. Accordingly, it appears to me that the proposed variation is not necessary or appropriate in order to minimise the risk that is posed to the applicant's mother or others as a result of the COVID-19 pandemic. 27. In light of the bail concerns and risks that arise in this case, the nature of the other existing conditions and the applicant's, the co-accused's and the applicant's mother's circumstances, I am satisfied that the existing bail conditions, including the reporting condition (which has already been reduced from 7 to 5 days per week), are reasonably necessary to address the bail concerns, are reasonable and proportionate to the offence with which the applicant is charged, are appropriate to the bail concerns and are not more onerous than necessary. The fact that the applicant has complied with them for some time also establishes that they are reasonably practicable and likely to be complied with. 28. In these circumstances, I refuse the application to vary the applicant's bail conditions. ********** 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: 08 May 2020