Brooks v R

[2021] NSWCCA 195

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brooks v R [2021] NSWCCA 195

Hearing dates:

11 August 2021

Date of orders:

11 August 2021

Decision date:

18 August 2021

Before:

Leeming JA; RA Hulme J; Campbell J

Decision:

Bail granted subject to conditions: see [38] below

Catchwords:

BAIL – applicant charged with offences none of which was a “show cause” offence – applicant citizen of New Zealand – aspects of Crown case strong, other aspects weak - whether unacceptable risk of applicant failing to appear – where applicant would be in custody for at least 17 months prior to trial – whether stringent conditions relating to reporting and surrender of passport would address bail concerns – conditional bail granted

Legislation Cited:

Bail Act 2013 (NSW), ss 18, 19(1), 19(2), 20(1)(a), 67(1)(e)

Crimes Act 1900 (NSW), ss 61I, 61J(1), 61KC, 86(1)(b), 91P(1)

Category:

Procedural rulings

Parties:

Raymond Anthony Brooks (Applicant)
Regina (Respondent)

Representation:

Counsel:
E Anderson (Applicant)
G Newton (Respondent)

Solicitors:
Sydney Criminal & Traffic Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2021/00175294

Publication restriction:

These reasons will not be published on CaseLaw until the conclusion of the criminal proceedings.

Judgment

1. THE COURT: Mr Raymond Brooks was charged with sexual intercourse without consent and aggravated sexual assault, following events partly captured on CCTV early on the morning of 22 March 2021. He was refused bail by the police and by the Local Court shortly thereafter, and, on 9 June 2021, by the Supreme Court. He has been in custody since 22 March 2021. He has exercised his right to apply to this Court pursuant to s 67(1)(e) of the Bail Act 2013 (NSW).

2. The parties exchanged full written submissions in advance of the hearing, and, in particular, supplied a USB stick containing the CCTV and mobile phone recordings which are central to the Crown case. For that reason, the Court was able to make orders granting bail subject to conditions shortly after the conclusion of the hearing, in accordance with the requirement in s 71 that a bail application is to be dealt with as soon as reasonably practicable. These are our reasons for those orders. As advised at the hearing, they will not be published on CaseLaw until the conclusion of the criminal proceedings.

3. None of the offences with which the applicant has been charged is a “show cause” offence. Accordingly, his application falls to be determined pursuant to Division 2 of Part 3 of the Bail Act. Thus it is necessary to assess any bail concerns, to consider the matters contained in s 18 of the Act, and only those matters, and then to ask whether there is an unacceptable risk that the applicant, if released from custody, will fail to appear at trial, or commit a serious offence, or endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence: s 19(2). If there is an unacceptable risk, bail must be refused: s 19(1). If not, then bail must, (relevantly for present purposes) be granted with the imposition of conditions: s 20(1)(a).

The nature and seriousness of the offence and the strength of the Crown case

4. It is convenient to start with the matters in s 18(1)(b) and (c), namely, the nature and seriousness of the offence and the strength of the prosecution case. The applicant was originally charged with one very serious offence, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) to which was added a count of aggravated sexual assault contrary to s 61J(1). Both were based on an allegation of digital penetration of the complainant by the applicant at around 6.07am said to be depicted on the CCTV footage. That was the position when the most recent application was made to, and refused by, the Supreme Court.

5. We were of the view, so far as may be seen from the material presently available, that there was a relatively weak Crown case in respect of those charges. We do not think that the Supreme Court constituted by a single judge on 9 June 2021 was of any different view. As much was intimated in her Honour’s reasons for refusing bail on that day.

6. However, the applicant has subsequently, on 29 July 2021, been charged with a number of offences mostly of lesser seriousness: four charges of sexual touching contrary to s 61KC of the Crimes Act, one charge of taking for advantage contrary to s 86(1)(b) of the Crimes Act and two charges of intentionally recording an intimate image without consent contrary to s 91P(1) of the Crimes Act. While still serious, they are less serious than those with which he was charged some five months ago. In relation to some of those lesser offences, the Crown appears to have a relatively strong case.

7. The principal evidence bearing upon the Crown case is the CCTV footage of the events in question. That is because the complainant has very limited recollection of the events. She had attended a mutual friend’s premises on the evening of 21 March 2021. She said she consumed a small quantity of illicit drugs shortly before she left, and it appears that at trial there will be toxicology evidence of a number of illicit drugs in her body. Her statement suggests that she has some recollection of the applicant assisting her, and none of him assaulting her. She was passing in and out of consciousness when police officers arrived at the scene, and her next recollection is awakening in hospital.

8. The events in question took place between around 5.53am and 6.11am. During that time, footage from various CCTV cameras capture the complainant and the applicant in a lift, walking down a corridor to leave the building, and located outside the external entry to the complex. The footage also shows the pair crossing the street where the applicant’s vehicle was parked. At 6.11am the applicant returned to the apartment block. The police arrived at 6.21am to find the complainant in the applicant’s vehicle.

9. Significantly, the CCTV footage shows her behaving very erratically, for a period of some minutes, after she left the apartment, in the elevator and in the foyer of the complex and, especially, immediately outside the entry to the complex. No toxicology evidence is required to reach the firm conclusion that she was at that time not in her right mind, that that must have been obvious to anyone who encountered her, and that she was unable to give consent to any sexual act.

10. The CCTV footage shows the applicant filming the complainant on his mobile phone while the pair was in the lift. Two videos were, according to the Draft Crown Case Statement, taken from the applicant’s mobile phone. They are said to capture the complainant’s exposed crotch, with her underwear visible, as she lay on the floor of the lift. These give rise to the two s 91P charges.

11. The CCTV footage shows the applicant assisting the complainant to walk in the corridor of the apartment complex and outside the external entry. She is seen sitting down and at times lying down outside. There are occasions where the applicant appears to touch the complainant’s groin area. On one occasion in particular, the CCTV appears to show the applicant placing his hands first on the complainant’s thighs, and then one hand on the complainant’s groin area, leaving his hand in place for some seconds, and moving his hand back and forth. This gave rise to the charges of sexual intercourse without consent and aggravated sexual assault and in the alternative sexual touching.

12. In an electronically recorded interview in which the applicant participated later that day, he was shown those images, and said that she had told him she was about to urinate and that he was helping her to do so in a way which would not soil her clothes, and that he wanted her to do so before he took her to his vehicle. He denied touching her in any sexual way. There is likely to be debate on what is to be inferred from variations in the applicant’s accounts of the events of that morning before and after he was shown the CCTV images.

13. We think it will be difficult for the Crown to establish to the criminal standard the element of penetration in relation to the charges of sexual intercourse. However, we proceed on the basis that the Crown has a relatively strong case on the sexual touching charges.

The reasons of the Supreme Court on 9 June 2021 refusing bail

14. The application before this Court falls to be determined afresh. Nonetheless, it is important, for reasons shortly to be disclosed, to identify the basis on which bail was refused. Her Honour gave careful, quite lengthy ex tempore reasons for rejecting what was described as a “relatively strict” bail regime, requiring the applicant to reside with his partner and three young children in Seaforth, with an overnight curfew, reporting conditions, restrictions on contact and security of $20,000 being lodged.

15. Her Honour relied on the fact that the complainant was obviously incapable of consenting to any form of sexual activity, and that the applicant rather than calling for an ambulance or the police or securing other assistance, moved her into a position where she was lying down. Her Honour stated:

“It seems to me that the applicant is clearly shown on the recording spreading the complainant’s legs, putting his hand to her genital area and manipulating her underpants, and then maintaining his hand in that area for a period of time”.

16. We agree that that is a reasonable depiction of what the CCTV footage shows.

17. Her Honour then recorded the applicant’s submission that the Crown would struggle to establish the element of penetration in the charges which had at that time been laid against the applicant. Her Honour said that that may well be right, but added that there were statutory and common law alternatives to the offences charged. This is reflected in the further charges that have now been laid.

18. On that basis, her Honour did not accept the applicant’s submission that the Crown case was a weak one. Her Honour rejected the Crown’s reliance on a risk of interference with witnesses as slight, but regarded the risk of flight as a live one, because travel between Australia and New Zealand had resumed.

19. Her Honour addressed delay as a particularly relevant matter where the applicant has previously never been imprisoned. However, her Honour said that she was not persuaded that the likely delay was as long as had been submitted. On 9 June 2021, her Honour recorded that there were still dates in 2021, and trial dates for trials in excess of four weeks in the first four months of 2022.

20. Her Honour concluded that the risk of flight could not be adequately addressed by conditions of bail and bail was refused.

Changed circumstances

21. There have been a number of developments in the two months between the earlier decision and the hearing on 11 August 2021.

22. First, a suite of further charges have been laid as contemplated by her Honour, including four counts of sexually touching another without consent contrary to s 61KC(a) of the Crimes Act, one count of detaining a person to obtain advantage contrary to s 86(1)(b) of the Crimes Act and two counts of intentionally recording an intimate image without consent contrary to s 91P(1) of the Crimes Act.

23. Secondly, regular travel between Sydney and New Zealand has ceased with the current outbreak of the delta strain of the COVID-19 virus, which arose subsequently to the bail hearing. It is quite unclear what impact the recent outbreak, which has seen Sydney in some 6 weeks of lock-down, will have on trials in the District Court. The parties advised the Court that their agreed best estimate was that a likely trial date would be August 2022. That accords with the information available to the Court. Of course, there can be no certainty of what the position will be in the next few months. The Crown accepted that the consequence of refusing bail would be that the applicant would be in custody for some 17 months before he could expect to stand trial, with the possibility that the period might be longer.

24. That is a substantially different position from that which obtained on 9 June 2021, just before the current lock-down period commenced.

25. Thirdly, the applicant now proposes the lodgement of security of $50,000 as a condition of bail. His employer states that the applicant is his longest-serving employee (out of over 50), that he is the firm’s number one Excavator operator, who “has won employee of the year award with us two years in a row and to be honest we could give it to him every year only it would not be fair on other employees”. He is supportive of the applicant, says that the offending is completely out of character, and will reinstate him until the matter is dealt with. There had been a similar reference and offer of security from the employer included in support of the bail application on 9 June 2021, but only in the sum of $20,000.

The applicant’s background

26. The applicant is a New Zealand citizen who has lived in Australia for the last decade. He has a long term partner and three young children. He has a stable employment and domestic circumstances, and both his employer and his partner have supported his application. His partner wrote stating that the applicant financially supports three children and that she is barely getting by without his contribution. She says she is aware of the charges, and states that he would not hurt nor disrespect anyone.

27. He received a fine of $750 for driving with a mid-range prescribed concentration of alcohol on 5 July 2018, and a domestic violence conviction for damage to property, for which a conditional release order was imposed. The incident involved the applicant denting the bonnet of his partner’s car when he kicked it during an argument they were having. The applicant has no other prior convictions.

Length of time in custody and likelihood of a custodial sentence

28. As noted above, the applicant has been in custody for almost five months, since March. It is his first time in custody. He faces the prospect, given the Covid-19 pandemic, of 17 months or more in custody before his matter comes to trial. We proceed on the basis that there is a reasonable prospect of a custodial sentence, even if he is only convicted of the sexual touching and recording an intimate image charges which have more recently been laid. On the other hand, the Crown accepted, correctly in our opinion, that if he is convicted of some or all of what we consider to be the more viable charges which have more recently been laid, and his current application is refused, then the 17 months he will have already served will comprise a significant component of the non parole period of the sentence that is imposed. Indeed, there is a very real chance that any term of full time imprisonment will not exceed, or not significantly exceed, the time he is likely to spend on remand if bail were not granted.

The need for the accused person to be free to prepare for his appearance in court or for any other lawful reason

29. The applicant is in full time employment and has a family to support. Further, as Mr Anderson submitted during the hearing, it is for practical purposes impossible to obtain appropriate instructions concerning the applicant’s conduct and state of mind at the critical moments captured in the CCTV footage. It was said without objection that it is not presently possible for his lawyers to visit him in gaol, nor is it possible to go through the CCTV footage with him using remote audio visual technology. Mr Anderson noted that the proceedings were listed in the near future for review of the most recent charges which have been laid.

Bail conditions which could address any bail concerns

30. As already mentioned, the applicant proposed more stringent bail conditions than had been contemplated when the application came before the Supreme Court. It will be convenient to deal with these when considering the bail concerns.

Consideration of bail concerns

31. The bail concern which led to the refusal of the application for bail by the Supreme Court was a risk that he would fail to appear at trial. That was at the forefront of the parties’ submissions in this Court.

32. The applicant’s history is not such as to give rise to an unacceptable risk that he will commit a serious offence. There is nothing to suggest he knows the address of the complainant, and as Mr Anderson submitted, there is no good reason for him to endanger her safety or interfere with her in any way. She has no recollection of any of the conduct which is said to give rise to any of the charges, and indeed such recollection as she has appears to be supportive of the applicant. The Crown submitted, it is fair to say somewhat faintly, that he might wish to procure witnesses to give evidence corroborative of or otherwise supportive of his account. We considered that the risk of that is decidedly low, and is sufficiently addressed by the conditions concerning contacting witnesses which were made.

33. The Crown tendered a letter to the Court by the Officer in Charge dated 4 August 2021, in which the officer stated that the nature and seriousness of the offences give rise to a risk to the safety of the victim and the community if bail is granted. That opinion was not particularised in any way by reference to the circumstances of the applicant, including the nature of his criminal record and his family and employment ties, and was not sought to be developed by counsel. We were not satisfied that this gave rise to an unacceptable risk.

34. Accordingly, we turn to the bail concern in s 17(2)(a) and 19(2)(a), namely, that if released from custody, there is an unacceptable risk that the applicant will fail to appear at any proceedings for the offence.

35. The Crown maintained that there was a strong case, especially in relation to conviction on the lesser charges which have more recently been laid, that the applicant faced a very real prospect of a substantial custodial sentence, and that therefore there was a real risk he would flee to New Zealand. The Crown did not point to any particular circumstances aside from the strength of its case and the applicant’s New Zealand citizenship that were said to make the applicant especially likely not to appear.

36. Against this, there are the applicant’s family ties, stringent reporting conditions, the surrender of his passport, the reality that the travel “bubble” between Australia and New Zealand is no longer available and any travel is subject to mandatory 14 day quarantine, and conditions that the applicant not approach international departure points.

37. We were comfortably satisfied that conditions, none of which was opposed by the applicant, of residing at the applicant’s home address, reporting three times a week and the surrender of the applicant’s passport were reasonably necessary to address the concern, were reasonable, proportionate and appropriate, and were likely to be complied with. With those conditions in place, and the deposit of $50,000 by way of security, we concluded that there was not an unacceptable risk of the applicant failing to appear.

38. On that basis, we granted bail subject to the following conditions:

1.   To be of good behaviour.

2.   To appear at Central Local Court on 23 September 2021 and thereafter as required.

3.   To live at xxxxxx Street, Seaforth NSW 2092.

4.   To report to Manly Police Station each Monday, Wednesday and Saturday between the hours of 6:00am and 8:00pm.

5.   Not to have any contact in any way (including via a third party) with the complainant or any person he is notified is a prosecution witness (except police officers).

6.   To surrender his New Zealand passport to Manly police station on the first occasion of reporting pursuant to this bail.

7.   Not to apply for any new passport or travel document.

8.   Not to go within 1 km of any point of departure from the Commonwealth of Australia except if passing by within that distance in the course of his employment or travelling to or from a work site.

9.   One (or more) acceptable person(s) is to deposit $50,000 and agree to forfeit it if the applicant fails to appear before court in accordance with the bail acknowledgement.

**********

Decision last updated: 13 March 2023