Edwards v The Queen (No 2)

[2022] NSWSC 1344

Supreme Court

New South Wales

Medium Neutral Citation:

Edwards v R (No 2) [2022] NSWSC 1344

Hearing dates:

4 October 2022

Date of orders:

4 October 2022

Decision date:

04 October 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

Bail granted on conditions

Catchwords:

BAIL APPLICATION – applicant charged with five counts of drive manner dangerous causing death – 18 years old – no prior convictions – deteriorating mental health – bail concerns addressed by proposed bail conditions – bail granted

Legislation Cited:

Bail Act 2013 (NSW)

Crimes Act 1900 (NSW)

Category:

Principal judgment

Parties:

Tyrell Edwards (Applicant)
Rex (Respondent)

Representation:

Counsel:
Mr G James KC; Mr E James (Applicant)
Mr CM Everson SC (Respondent)

Solicitors:
Watson Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2022/274859

EX TEMPORE JUDGMENT

1. Just before 8:00pm on the evening of 6 September 2022, a utility vehicle said to have been driven at high speed came off East Parade at Buxton and struck two trees in succession. The applicant for bail, Tyrell Edwards, was driving the vehicle. A 16-year-old boy was in the front passenger seat. In the rear of the vehicle were four young people, two aged 15, and two aged 14. Only the applicant survived. The grief and suffering occasioned by the parents, families and friends of the young people who died is taken as a given on this application.

2. On or about 7 September 2022, the applicant was charged with five counts of driving in a manner dangerous causing death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). He was refused bail and has been in custody ever since. He is 18 years of age. He obtained his provisional driver’s licence in February 2021. He incurred two speeding violations a few months afterwards. His provisional licence was then suspended but it was returned to him in August 2022. It was suspended again after the incident the subject of these proceedings. He does not have a criminal record, a matter of particular significance to a bail application.

The Offence

3. The maximum penalty for an offence under s 52A(1)(c) of the Crimes Act is 10 years’ imprisonment. There is no standard non-parole period for the offence. Although the Crown has not yet been required to particularise its case, it seems that the alleged “manner dangerous” is speed and dangerous steering and doing so with at least one unrestrained passenger in the vehicle.

4. Tendered on this application was a statement of the alleged facts of the offending prepared by the police. The statement contends that, immediately prior to the accident, the applicant’s vehicle crossed onto the wrong side of East Parade before the offside tyres moved on the grassed shoulder and then moved back onto the correct side of the road. The facts describe the vehicle then rotating clockwise before colliding with a large tree near the shoulder of the road which caused it to rotate anti-clockwise and then collide with a second tree. The impact caused the rear seat to be ejected from the vehicle.

5. Emergency services were called and the five young persons referred to above were declared dead at the scene. According to the police facts, witnesses at the scene heard the applicant state “I fucked up, I’m going to jail”. The police facts also record that at around 7:30pm an “independent witness” observed the applicant’s vehicle drive close to their vehicle and then accelerate away.

6. The applicant was interviewed by police the following day. The police facts record that he stated he experienced a steering fault. The police facts contend that the “roadway evidence documented at the collision scene is not consistent with the accused’s version” but they do not elaborate.

7. The police facts also record that a search of the applicant’s mobile phone revealed a video taken around an hour prior to the accident showing the applicant filming himself while driving as he aggressively turns the steering wheel to the left and right causing the vehicle to swerve. Although it is not entirely clear, it appears that the Crown alleges that the applicant was attempting the same manoeuvre at the time of the accident. In his written submissions, Senior Counsel for the applicant, Mr James KC, disputed the relevance of this footage to the charge, given the time difference between when it was taken and when the accident occurred. It is neither appropriate nor necessary to resolve a debate about that on a bail application.

8. At this point, I observe that there appears to be important aspects of the police investigation that remain to be conducted, or at least reported on, including such matters as examining the applicant’s vehicle and any tyre marks at the scene.

The Bail Proposal

9. The bail proposal involves the applicant living with his parents and reporting to the police daily. He is to observe a form of house arrest although he may leave if he is the company of his mother or to attend medical appointments (and in other restricted circumstances). He is to abstain from drugs and alcohol, may not apply for a passport or enter within 500m of a point of international departure. His parents agree to forfeit the sum of $100,000 if he fails to appear before court when required. The material tendered demonstrates that there is sufficient equity in their home to enable them to pay that if required. Two proposed conditions should be specifically noted, namely, that he is not to occupy the driver’s seat of any vehicle including any motorbike and that he is not to make contact with any prosecution witness.

10. The evidence adduced reveals that the applicant left school during Year 12 in 2021. As at September 2022, he was working as a labourer. Affidavits sworn by the applicant’s parents addressing the applicant’s upbringing and schooling. They suggest he faced various challenges including learning difficulties and anxiety. They do not suggest he displayed anti-social behaviour. Otherwise, it is clear he has loving and supporting parents.

11. A number of deponents ranging from his grandfather, family friends, his next-door neighbour and a former teacher, have provided affidavits testifying to the applicant’s commitment to his family, his general good character, his support network as well as their belief in his ability and preparedness to comply with bail conditions. Each of the deponents clearly knows the applicant as they also testify to his introverted nature and his difficulties in coping with school. Each of them is aware of what he is charged with. Some of the deponents have been driven by him.

12. An affidavit from the applicant’s employer states that he commenced working with him as a labourer with an excavation company in May 2022. He is shocked by the events of 6 September 2022 but reiterates his support for the applicant. He is willing to have him resume work for five days a week from 7:00am to 5:00pm.

13. On behalf of the applicant, a report was tendered from a psychologist who interviewed the applicant in custody and his parents. The report is measured but sobering. It recounts a history of his upbringing and schooling consistent with that deposed to by his parents; i.e., he has faced various challenges including learning difficulties and anxiety but did not display anti-social behaviour.

14. The psychologist states that the applicant is “obviously distressed” in custody. The psychologist has assessed him as moderate on a Post-Traumatic Stress Disorder scale as well as a Moderately High Suicide Risk. He has been placed on suicide watch. Understandably, he is fearful for his safety. The psychologist describes the applicant as being affected by a combination of “prominent distress, complex grief, anxiety, survivor guilt and shame, self-condemnation and realisation of the stigma he will likely face both in the prison environment and in the community”. It seems that, regardless of the outcome of the proceedings, the applicant’s punishment has commenced.

15. The psychologist opines that the prison system cannot provide the mental health support and intervention that the applicant requires. This is disputed by the Crown which has filed material from Justice Health concerning the availability of mental health services in custody. One of the affidavits of the applicant’s mother, as well as his solicitor’s affidavit, depose to the difficulties the applicant has experienced in custody including accessing Justice Health. It is not possible for me to finally resolve a dispute about the adequacy of such services on a bail application. It suffices to state that the probabilities are such that, given his age and history, if the applicant is to remain in custody his mental health is likely to continue to decline and there is a better prospect of improvement if he is released. As explained below, this informs an assessment of what level of risk is unacceptable.

The Bail Act and Unacceptable Risk

16. Two key features of the process of addressing an application for bail under the Bail Act 2013 (NSW) must be noted.

17. The first feature is that a decision to grant bail is determined by a process of risk assessment of so‑called “bail concerns”. The potential bail concerns are identified in s 17 and they are the apprehension that, if an accused person is released from custody, they will fail to appear at any proceedings for the offence, commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses (s 17(2)). A person must be refused bail if there is adjudged to be an “unacceptable risk” that, if the accused person is released, one of those bail concerns will materialise.

18. Various factors inform the assessment as to whether to grant bail including the extent to which the bail concerns can be addressed by the imposition of conditions on the grant of bail (ss 18(2)(p) and 20A). Section 18(1) lists a number of other factors to be considered including the applicant’s background, criminal history, circumstances and community ties, the nature and seriousness of the offence, the strength of the prosecution case, a person’s history of compliance with bail conditions, the length of time an accused person is likely to spend in custody if bail is refused, the likelihood of a custodial sentence being imposed if the accused person is convicted, any special vulnerability of the accused person because of, inter alia, their youth or a mental health impairment and their need to be free to prepare for their court appearance. However, the relevance of all these matters is conditioned by the necessity for them to be used in an assessment of “bail concerns”; that is, the process of risk assessment that I have described. This is an important qualification to which I will return shortly.

19. The second key feature is that some offences are designated by the Bail Act to be “show cause offences”; that is, offences upon which the burden is placed on the accused person to “show cause why his or her detention is not justified” (s 16A). It is unnecessary to describe this feature in any detail other than to note that a consideration of whether cause has been shown by the accused person can extend to a wider set of circumstances than just bail concerns. The offences which the applicant has been charged with are not show cause offences.

20. An important negative conclusion follows from the above, namely, that it is not legitimate to refuse bail to an applicant such as this simply because it can be concluded that they have been charged with serious crimes that have caused great suffering and the case is strong or that it is otherwise appropriate that an accused person start serving their sentence immediately. This fundamental precept is sometimes lost especially when bail applications are determined so close to an event over which the grief is still raw. That said, the above provisions make it clear that a consideration of the strength of the prosecution case, and the likely punishment that may be imposed, can be considered in determining a bail application. However, that is so either because they are relevant to whether cause has been shown or, as in this case, because they may be relevant to an assessment of whether there is an unacceptable risk of a bail concern materialising. Thus, for example, a person faced with an extremely strong case on a very serious charge that carries a heavy maximum penalty has an obvious incentive not to attend court and may present a risk of committing a similarly serious offence. Even so, such a conclusion does not necessarily mean that bail must be refused; whether that is so depends on whether the risk is unacceptable and other factors may bear on that such as the proposed bail conditions. At the risk of repetition, bail cannot be refused as a means to impose interim punishment and bail applications are not forums to adjudge guilt or innocence.

Should Bail Be Granted?

21. I have just outlined various factors affecting the assessment of the bail concerns. In relation to those matters, I have described the applicant’s background including his lack of any criminal history (s 18(1)(a)). The effect of that, as well as the evidence that he has strong family and community support, suggests that there is significant likelihood that he can be trusted to comply with bail conditions including any condition about not occupying any driver’s seat of a vehicle.

22. The offences with which the applicant is charged are serious. The limited material available to me suggests that the Crown case is relatively strong although much would appear to depend on the outcome of further forensic investigation (s 18(1)(b)-(c)). There is obviously a real prospect of a substantial custodial sentence being imposed but beyond that I do not propose to speculate (s 18(1)(i)). Consistent with the above analysis, these matters are sufficient to give rise to a concern about the applicant not attending court when required, even though the Crown does not raise that concern itself. However, it is a concern that is well addressed by the proposed bail conditions.

23. Given that the investigation is still ongoing then it is likely that, if the applicant is refused bail, he will remain in custody for at least a further 12 to 15 months before trial. That is a long period in pre-trial custody for an 18-year-old with no criminal history who is charged with a non-intentional crime; and more so for an applicant who is obviously vulnerable due to the deterioration of his mental health and who will more likely benefit from psychological intervention outside of custody (s 18(1)(h), (k), (l) and (m)).

24. What are the bail concerns raised by the Crown? The Crown’s written submissions identified two such concerns. The first is that the applicant might interfere with prosecution witnesses, specifically those who are said to have overheard the applicant supposedly stated, “I fucked up, I’m going to jail”. This barely raises a bail concern. At present, it does not appear that the applicant even knows who these people are, even though these events took place within a small community. In any event, there is nothing raised by the material concerning the applicant, or anyone who knows him, which suggests a tangible concern that they might act in the way the Crown is concerned about.

25. For my part, I doubt that the alleged statement will have the forensic significance the Crown alleges. It would be surprising if someone did not express some type of concern like that if they drove a car that was in an accident that killed five of their passengers. It seems more likely that this case will very much turn upon a forensic analysis of the scene rather than proving whether this utterance was made. With the imposition of a condition precluding the applicant from contacting any Crown witness, any concern over the applicant interfering with their evidence does not give rise to an unacceptable risk.

26. The other bail concern raised by the Crown is the risk of the applicant committing a serious offence if he is released on bail. In particular, the Crown raises a concern that the applicant will drive a vehicle even though his licence is suspended. The Crown contends that, driving while a licence is suspended, constitutes a “serious offence” in its own right. The Crown’s submissions refer to the evidence about the applicant resuming his work as a labourer. The Crown queried his family’s ability to drive him every day given that there is only one family car and how he would travel between work sites. In oral submissions, the Crown Prosecutor queried how it was possible to work as a labourer for an excavation company that has work across New South Wales, without a car,

27. It is not necessary to determine whether driving while a licence is suspended amounts to a serious offence. Even if it did not, I accept that there is still bail concern about the risk of committing a serious offence if the applicant drove, given the events of 6 September 2022. However, I do not accept that there is an unacceptable risk of that occurring. There is nothing in the applicant’s driving record to suggest that he drove when his licence was suspended and it seems likely that the applicant understands that, if he drives again, he will return to jail. It was not demonstrated that he cannot work as a labourer for an excavation company that has jobs across New South Wales unless he drives a car. As I understand the position, it is not proposed that the applicant would return to work immediately in any event. Given the events of the last few weeks I would expect that, if there is a difficulty in driving the applicant when he resumes work, his family will simply keep the applicant at home rather than risk the trauma and expense of his return to jail. Given the applicant’s lack of criminal history, his family support, and the bail proposal, I am satisfied that any concerns over the applicant committing a serious offence do not give rise to an unacceptable risk.

28. Despite the great suffering that was occasioned on 6 September 2022, this was not a finely balanced bail application. To the contrary, on any proper understanding of the objects and operation of the Bail Act, this application had to be granted. It follows that there will be a grant of bail on conditions as follows:

29. [His Honour then specified the bail conditions.]

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Decision last updated: 04 October 2022