JM v R

[2015] NSWSC 978

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	JM v R [2015] NSWSC 978
Hearing dates:	25 June 2015
Date of orders:	22 July 2015
Decision date:	22 July 2015
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Bail granted. See [135] for conditions.
Catchwords:	BAIL – charge of murder – show cause requirement – assessment of strength of Crown case – self-defence raised by evidence in Crown case – where applicant young – where applicant never previously in custody – where applicant has history of breaching bail – whether undesirable length in custody awaiting trial – applicant has shown cause as to why detention unjustified – whether unacceptable risk if bail granted – assessment of bail concerns – any concern mitigated by bail conditions – conditional bail granted
Legislation Cited:	Bail Act 2013 Children (Criminal Proceedings) Act 1987 Court Suppression and Non-Publication Orders Act 2010 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health Act 2007
Cases Cited:	Chau v DPP [1995] 37 NSWLR 639 Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 Clumpoint v DPP [2005] QCA 43 DPP (Cth) v Germakian [2006] NSWCA 275 DPP (NSW) v Campbell [2015] NSWCCA 173 DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 M v R [2015] NSWSC 138 R v Cain (No.1) [2001] NSWSC 116; (2001) 121 A Crim R 365 R v Kugor [2015] NSWCCA 14
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	JM (Applicant) Crown (Respondent)
Representation:	Counsel: S Boland (Applicant) P Bakalidis (Crown)
File Number(s):	2015/87829
Publication restriction:	Order that the names of the applicant, the deceased and the witnesses to the events and any material identifying them be suppressed until the conclusion of the trial of the applicant, or further order of the Court, whichever first occurs.

__________________________________________________________________

Judgment

1. On 23 March 2015, the applicant, JM, was arrested and charged with the stabbing murder of the deceased, AB. He was taken into custody at that time.

2. On 15 April 2015, JM made an application pursuant to s 8 of the Bail Act 2013 (“the Act”) to be released on bail.

3. The Crown opposed that application. It was heard on 25 June 2015. The Court reserved its decision. The bulk of material tendered, and the importance of this judgment to the parties, has meant that the preparation of these reasons and delivery of this judgment has taken somewhat longer than would ordinarily be acceptable. Nevertheless, the application has been dealt with as expeditiously as possible: s 71 of the Act.

Non-Publication Order

4. It will be necessary in this judgment to consider the nature and strength of the Crown case against the applicant. That is to be done by reference to the contents of statements provided by the Crown. Some of that material may not ultimately be admitted in evidence at the applicant’s trial.

5. In order to prevent prejudice to the proper administration of justice, and in order to ensure a fair trial of the applicant, the Court must make a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010. In so doing, I take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. However, in an interlocutory application such as this one, it is also important to take steps to ensure that a fair trial will take place.

6. Accordingly, the Court has ordered that the names of the applicant, the deceased and the witnesses to the events, the subject of this application, and any material tending to identify them, be suppressed. Such order is made until the conclusion of the trial of the applicant, or further order of the Court, whichever first occurs.

The Applicant

7. The applicant JM is presently 21 years of age. He has a history of past offences. On three occasions, whilst a juvenile, he appeared before a Childrens Court to be dealt with for relatively minor offences. Since becoming an adult, the applicant has appeared before a Local Court on five occasions, again dealing with relatively minor offences. The last occasion was on 4 June 2014, when the applicant came before the Waverley Local Court where he was dealt with for an offence of common assault, which occurred on 26 January 2014. He was convicted, and a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 was imposed for a period of 12 months.

8. A condition of that bond was imposed pursuant to s 95A of the Crimes (Sentencing Procedure) Act requiring the applicant to comply with an intervention plan arising out of an intervention program devised in the course of a forum sentencing procedure. Whilst subject to that bond, the present offence, for which bail is sought, is alleged to have been committed.

9. Prior to his arrest for the current offence, the applicant had not been held in custody at all. He has now been in custody for about 16 weeks.

10. According to the Criminal History Report tendered, without objection, by the Crown, there are also a number of occasions when the applicant has been in breach of his bail. The details of those breaches are mostly before the Court. In respect of each alleged breach of bail, the Local Court before whom the applicant was brought, made a further bail order. The only exception is that whilst he was a juvenile, the applicant failed to appear at the Bidura Children’s Court on 20 June 2011 to answer a charge of affray. When he did appear on 5 September 2011, the charge of failing to appear in accordance with his bail undertaking was dismissed with a caution pursuant to s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987. It will be necessary to deal with these breaches in greater detail in due course.

11. According to the records of Corrective Services, the applicant is a man of Aboriginal background, although according to other material before the Court, he is not of Aboriginal background. For the purposes of the application, I will presume that he is.

12. He was, at the time of the alleged offence, living in community housing in the Mascot area. The housing was provided by a not-for-profit organisation.

13. The applicant remains in contact with his parents who are divorced, and each living with new partners. He has an older sister, who is supportive of his application, and he has a paternal aunt and uncle who reside in the Kempsey area who are willing to have him reside with them and to support him if he is granted bail.

14. His mother, and his father’s partner, are supportive of the application for bail, and are each willing, as are his paternal aunt and uncle, to provide a form of monetary security to ensure his compliance with any bail conditions.

Bail Act 2013

15. This application for bail seeks a bail decision, namely a grant of bail with conditions for the offence of murder. Such a decision is to be made in accordance with Part 3 of the Act.

16. Section 16A of the Act is applicable because the offence with which the applicant is charged, namely murder, is an offence that is punishable by imprisonment for life: s 16B of the Act.

17. Section 16A of the Act imposes a show cause requirement on this Court. It is in the following terms:

“16A Accused person to show cause for certain serious offences

(1)   A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

(2)   If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences).

(3)   This section does not apply if the accused person was under the age of 18 years at the time of the offence.”

18. If the applicant does show cause, then this Court must proceed to assess any bail concerns and then make an evaluative assessment of those concerns to see if there remains an unacceptable risk.

19. This second part of the process is conducted in accordance with ss 17 and 18 of the Act, which are in the following form:

“17   Assessment of bail concerns

(1)   A bail authority must, before making a bail decision, assess any bail concerns.

(2)   For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will:

(a)  fail to appear at any proceedings for the offence, or

(b)  commit a serious offence, or

(c)  endanger the safety of victims, individuals or the community, or

(d)  interfere with witnesses or evidence.

(3)   If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.

(4)   This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).

18 Matters to be considered as part of assessment

(1)   A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division:

(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 bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(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,

(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.

(2)   The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered:

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,

(b) the likely effect of the offence on any victim and on the community generally,

(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.”

20. Section 19 of the Act provides that this Court must refuse bail if it is satisfied on the basis of an assessment of the bail concerns, that there is an unacceptable risk. An unacceptable risk is defined in the following way:

“19 Refusal of bail—unacceptable risk

(1)   …

(2)   For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.”

21. If the Court assesses that there is an unacceptable risk or risks, as I have just noted, it must refuse bail. If, on the other hand, there are no unacceptable risks, the Court must grant bail (whether with or without the imposition of bail conditions): s 20 of the Act.

22. The provisions of s 22 of the Act are also important because that section introduces the necessity for “special or exceptional circumstances”, to exist before a bail decision can be justified. But this test only applies to the particular matters specified in the section.

23. Section 22 of the Act is in the following terms:

“22 General limitation on court’s power to release

(1)   Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision:

(a) an offence for which an appeal is pending in the Court of Criminal Appeal against:

(i) a conviction on indictment, or

(ii) a sentence imposed on conviction on indictment,

(b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

(2)   If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.

(3)   Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section.”

24. In determining whether or not to grant bail, the Court is not bound by the principles or rules of law regarding the admission of evidence, but can take into account any evidence or information which it considers credible or trustworthy in the circumstances: s 31 of the Act.

25. When this Court decides any matter with respect to exercising its function in relation to bail, that matter is decided on the balance of probabilities: s 32 of the Act.

The Appropriate Process

26. It is convenient to first identify the appropriate process for the determination of any particular bail application.

27. The terms of the legislation make it clear that if the applicant for bail is charged with one of the offences to which s 16B of the Act applies, then the applicant must first show cause as to why their detention is not justified. The legislation clearly provides for a two-step process. The two tests are not to be conflated. The first test is that the applicant needs to show cause why their detention is not justified (“the show cause test”). Then, if the applicant succeeds in so doing, it is necessary for the bail authority to assess any bail concerns and determine whether there is an unacceptable risk (“the unacceptable risk test”): DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20], [25].

28. Although a two-step decision-making process is required, similar matters may be relevant at both stages of that decision-making process. In many cases, matters that are relevant to the unacceptable risk test will also be relevant to the show cause test: Tikomaimaleya at [24]; M v R [2015] NSWSC 138.

29. However, not everything that is relevant to a show cause test is relevant, and can be taken into account, when considering the unacceptable risk test. Section 18 of the Act requires that, in considering the unacceptable risk test, a court is only to consider the matters exhaustively listed in that section. A court cannot consider anything else. In particular, a court is not entitled to take into account the fact that the applicant has shown cause why their detention is not justified: s 19(3) of the Act. However, the Act does not prohibit, as a consideration in the determination of the show cause test, that there are no bail concerns, or that the risks if bail is granted are not unacceptable.

30. As the terms of the Act make clear, the question of whether a person has shown cause, and whether one or more risks are unacceptable, are each an evaluative decision which calls for an identification of all factors relevant to the particular application, an assessment of the weight and significance to be attached to each of those factors, and then an evaluation of whether cause has been shown, or a risk or risks are acceptable or unacceptable.

31. Both tests also involve, although to a lesser degree for the show cause test, an exercise of the prediction of human behaviour, to which no certainty can ever be attached. Reasonable minds may well differ on the result of a bail application. There is no system of appeal legislated for, although a detention application or a bail application may be made to the Court of Criminal Appeal after a bail decision has been made by the Supreme Court. Such application is dealt with as a fresh application: s 75 of the Act.

Principles of General Application

32. In considering a bail application, some fundamental common law principles need to be kept in mind.

33. First, the Act itself, in its preamble, recognises that the common law presumption of innocence and the general right to be at liberty, has not been ignored by the Parliament, in the Act, but is in fact something which the Parliament has taken into account. A court needs to keep in mind, and have regard to these principles when considering a grant of bail, because as a fundament of the law, they have not been excluded by the terms of the Act. On the contrary, the Parliament has embraced them.

34. Secondly, the essential and important principle which is not to be ignored, is that an accused person, who is presumed to be innocent, is not to be punished before a conviction: Clumpoint v DPP [2005] QCA 43 at [47]. Put differently, bail is not denied to a person as a punishment: Chau v DPP [1995] 37 NSWLR 639 at 655 per Kirby P; Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at pp27-28.

35. The approach of correctional authorities to a person remanded in custody awaiting trial because bail has been refused is different from their approach to a sentenced prisoner. Rehabilitation programs are not ordinarily available to remand prisoners. Custodial classifications are different. Usually, persons on remand are held in maximum security facilities regardless of the offences with which they are charged or their likely classification after conviction.

36. In light of this second essential principle, the usual custodial arrangements, and in the absence of any provision in the Act, it is difficult to conceive that any bail decision can properly be regarded, and certainly could not properly be perceived, as intruding upon the sentencing discretion of a court: cf DPP (NSW) v Campbell [2015] NSWCCA 173 at [24]. Nothing in the Act warrants a court refusing bail because of a concern that a decision to grant bail may later fetter the decision of sentencing court.

37. In particular, the decision made by a court with respect to bail, involving, as it does, no element of punishment, is a decision of an entirely different kind to the imposition of a sentence in accordance with the Crimes (Sentencing Procedure) Act, where the Court in imposing a sentence is required by s 3A of that Act, to have regard to one of the purposes of the imposition of a sentence as ensuring that the offender is adequately punished for the offence. Similarly, notions of general and specific deterrence, which are encapsulated by s 3A, are entirely irrelevant to a bail decision. Denunciation of an offender’s conduct has no place in a bail decision. A sentencing court would fall into error if it had regard to the mere fact that a superior court had granted (or refused) bail prior to the sentencing.

38. Thirdly, it is a matter of general application that the wording of the show cause test makes it clear that there is an onus, on the balance of probabilities, falling upon an applicant to persuade the Court that their detention is not justified.

32. However, in discharging this onus, the applicant is not required to show special or exceptional circumstances. The provisions of s 22(2) of the Act, make it plain that the show cause test is separate, and distinct from, the demonstration of special and exceptional circumstances. An applicant does not need to show special or exceptional circumstances to show cause why their detention is not justified.

33. Similarly, the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists. After all, the terms of the legislation do not permit a grant of bail unless cause can be shown, and equally the legislation does not restrict the matters which can be considered when a court determines the show cause test. The authorities of long-standing in this Court on previous, and now repealed or superseded, versions of the Act, called for a court, when considering whether bail ought be granted when there was a presumption against bail, to concentrate attention on the strength of the Crown case and to give little, if any, weight to factors which are ordinarily present or common to bail applications where no presumption existed. See: DPP (Cth) v Germakian [2006] NSWCA 275 at [9]-[11].

34. The introduction of the two-step process in the present Act, together with the legislative acknowledgement that the show cause test does not require special or exceptional circumstances to be shown, except in a limited range of cases identified in s 22 of the Act, and the clear acceptance by the Court of Appeal in Tikomaimaleya at [24], that factors relevant to the unacceptable risk test (which are common to all bail applications), may also be relevant to the show cause test, in combination, suggests that these authorities are distinguishable from the approach which is now to be taken. The end result is that, even where a show cause requirement exists, an assessment that the Crown case is strong is not necessarily determinative of whether continued detention is justified.

35. Fourthly, when a court is called upon to assess the strength of the Crown case for the purpose of a bail application, it can only do so to a very limited extent. That is because the Court is not generally provided with the full brief of evidence, often it is not yet available; the Court does not hear prosecution witnesses orally and is not in any position to make an assessment of the credibility of a witness except by a comparison of the content of the written statement with other facts and material made available. The assessment of the strength of the Crown case is also made at a particular point in time, usually quite distant from the final hearing, by which time the material available to a prosecution may be very different. Witnesses whose statements are taken by police do not always give evidence at a trial; if they do, they do not always give evidence which accords with their statements; a different picture may emerge during cross-examination; a jury, or the presiding judge or magistrate, may take an adverse view of the demeanour or credibility of a witness for reasons which do not appear in the words of a written statement. A court making a bail decision needs to be, and ordinarily is, conscious of these matters, which are necessarily unknown when assessing the strength of the Crown case.

36. Fifthly, the fact of the arrest and charging of an individual with an offence is not the equivalent of a determination of guilt, and the fact that the person remains in custody pending trial is the occasion for the consideration of, and if appropriate, the exercise of, the discretion granted to a court under the Act, rather than a reason of itself to detain a person in custody pending trial.

Unacceptable Risk Test

44. The unacceptable risk test refers to the existence of the concept of one or more bail concerns, namely, failure to appear at any future proceedings, committing a serious offence; endangering the safety of victims, individuals or the community; or interfering with witnesses or evidence: s 17 of the Act.

45. For the purpose of the existence of a bail concern about the commission of a serious offence, the phrase “serious offence” is not defined in the Act. Subject only to the provisions of s 18(2) of the Act, any offence can constitute a serious offence. It is a matter for the court hearing the bail application to determine whether an offence is serious in the sense described as a matter relevant to a bail concern.

46. As earlier noted, s 18 limits the matters to be taken into account in assessing bail concerns under the Act. Each of the matters is given equal priority. No one matter assumes dominant significance. It is important to note that in s 18(1)(i), the Court is entitled to have regard to the likelihood of a custodial sentence being imposed if an accused person is convicted of the offence, however, that factor is only to be taken into account in considering the existence of a bail concern, being one of the four matters to which reference has been made in [44]. Unsurprisingly, an applicant facing a lengthy jail sentence may be, depending on their personal circumstances, at greater risk of failing to appear at future proceedings.

47. As well, it is important to note that s 18(1)(p) of the Act enjoins a court to take into account bail conditions that could reasonably be imposed to address any bail concerns before assessing whether the bail concerns present an unacceptable risk.

48. Section 18 does not permit a court to have regard to the views of investigating police, or any other police officer, about whether bail should, or should not, be granted. The only views to which a court may have regard are those of a victim, or the family member of a victim and then, only to a limited extent: s 18(1)(o) of the Act. A police officer may, and commonly will, put material or relevant facts relating to the matters required by s 18 of the Act, to be considered by a court. But this is, or should be, limited to nothing more than a factual account. Statements of police opinion, or views as to the appropriateness of a grant, or refusal, of bail fall outside the terms of s 18 and are thus unable to be considered.

49. This is not to say that submissions to a court by a representative of the prosecution, who may be a police officer, cannot be made to, or received by, a Court. Such submissions are not the expression of the personal opinion or views of the prosecutor. They are intended to assist the Court in the determination of an application.

The Hearing of JM’s Application

50. There were a number of matters featured in the material put before the Court on the hearing of this application. Although the offence with which the applicant was charged is a show cause offence, both parties approached the hearing of the bail application by addressing their evidence and submissions to both the show cause test and the unacceptable risk test at the same time.

51. It is convenient to review the evidence and then to consider each of the steps to which the Court is obliged to have regard.

Previous Bail History

52. I have earlier drawn attention to the fact that the applicant’s record includes a number of occasions of breaches of bail and one where he failed to appear. The facts surrounding most, but not all, of these matters have been put before the Court.

53. At the age of 15, having been arrested for using offensive language in a public place, for which he was ultimately dealt with in the Sutherland Childrens Court with a caution and dismissal under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987, the applicant was granted conditional bail. One of the conditions of bail was that he not enter the Sutherland Shire.

54. Upon the day after the condition had been imposed, and whilst it was still current, the applicant was found by police well within the Sutherland Shire. He was arrested and brought before the Court for a breach of that bail. A bail order was made.

55. In January 2010, when the applicant was 16, and January 2011, when he was 17, the applicant was dealt with for a breach of bail in, first, the Campbelltown Children’s Court, and then the Parramatta Children’s Court, where his breaches of bail were constituted by a clear breach of a curfew condition which had been imposed. On both occasions the applicant was seen out in the early hours of the morning at a place remote from where he was obliged to live, and from which he was not allowed to leave between the ordinary hours of night. In both cases, a further bail order was made.

56. As I have earlier indicated, on one occasion in June 2011 the applicant failed to appear at the Bidura Children’s Court to answer a charge of affray. The circumstances of that charge, and his failure to appear, have not been put before the Court. I observe, however, that the charge of failure to appear in accordance with the bail undertaking was dealt with by being dismissed with a caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act. I infer from that that the Children’s Court did not regard the matter as being particularly serious and, further, that the applicant must have provided some form of an excuse for his failure to appear.

57. On 22 December 2013, the applicant was dealt with by the Parramatta Local Court for a breach of bail. The circumstances of that breach are not before this Court. A further bail order was made.

58. On 12 March 2014 and 28 March 2014, on each occasion, the applicant was dealt with at the Waverley Local Court at a time when he was 20 years of age, in each case for failure to comply with a reporting condition on his bail. On one of those two occasions he was arrested and charged with his breach of bail when he did attend to report at the police station. Further bail orders were made.

59. Whilst in each case these breaches of bail could be regarded as relatively minor, the fact is that the breaches demonstrate a pattern, including when the applicant was a juvenile, of a persistent failure to regard conditions imposed by way of bail as being important and necessary to be complied with. Often, the breaches of bail were within a few days of the bail condition having been imposed. In some cases, the breaches of bail were clear, and must have resulted from the applicant choosing to disregard those conditions, and prefer to proceed with his activities, notwithstanding that they were in breach of those conditions.

60. The other feature of these various breaches is the regularity of them. It would not be an exaggeration to say that upon each occasion the applicant has been granted conditional bail, generally in respect of relatively minor charges, conditional bail has been imposed by a court, and regularly the applicant has disregarded those conditions.

61. This is not a base from which confident predictions of future compliance with bail conditions can be made.

Strength of the Crown Case

62. The Crown put before the Court a considerable number of statements contemporaneously made about the events surrounding the death of the deceased, AB. After his arrest, the applicant did not make a formal recorded interview.

63. The applicant did not put before this Court, for the purposes of the application, any account at all of the events surrounding the death of AB.

64. As I have earlier said, at the time of the events in question, the applicant was living in a community refuge which provided housing for individuals in individual bedrooms in a house maintained by a not-for-profit organisation.

65. On the way in which this case has been argued, it would not be appropriate to go through each statement and analyse it. Rather, it is more appropriate for the purposes of this application that I attempt to glean from those statements, the nature of the Crown case and the strength of it. In doing so, it is necessary to keep in mind that the Crown must prove its case beyond reasonable doubt.

66. On the morning of 23 March 2015, the day of his death, the deceased, AB, spoke to a work colleague on the way to work. The work colleague, who was also his cousin, enquired of the deceased how he was and what was wrong, as the deceased seemed to be on edge. The deceased disclosed to his work colleague that he was “punching on” with the applicant. He told his work colleague that the applicant had rung him that morning and offered to have a fight with him.

67. It is apparent that the deceased asserted that the applicant had been putting him down in front of some peers, which had really made him cross and had led to a fight being proposed by the deceased.

68. The material demonstrates objectively that the deceased had rung the applicant on many occasions during the course of that day, and the deceased told his aunt that it was 36 times. The applicant had not taken the phone calls of the deceased.

69. At about 6.30pm, a friend of the applicant, in the company of a third person, received an invitation from the applicant to go to his home. They did, and entered the home, and together with the applicant commenced to play electronic games on a Play Station. Whilst in the applicant’s company, this friend heard the deceased knocking on the front door and demanding to be let in. As well, the deceased was heard knocking on the back security screen door and asked to be let in. Throughout that time, the applicant did not respond and instructed his friends to pretend the deceased was not there.

70. As these two individuals left the house, the deceased ran over to them and said that he had had an argument with the applicant the day before and wanted to see him. The applicant’s friend informed the deceased that the applicant did not want to see him, and to leave it a few days and allow it to be sorted out.

71. A short time later, another resident of the refuge arrived home. I will refer to this witness as XX. XX saw the deceased on the footpath outside the house. He knew the deceased. The deceased asked him to let him into the house so that he could have a word with the applicant. XX, not knowing anything was untoward, did so. He heard the deceased knocking on the applicant’s bedroom door, yelling in a loud and aggressive voice to the applicant that he wanted to have a word with him. This apparently continued for some time. The applicant was not heard to respond, but finally the deceased announced in a loud voice that he was leaving and would speak to the applicant later on. He was heard to leave the premises.

72. According to XX, immediately after hearing the front door slam shut, he could hear loud arguing and screaming between the deceased and the applicant coming from the front porch of the premises, directly outside the front door. This continued for about 20 – 30 seconds, and then there was silence. XX heard the front door close, and observed the applicant walking past him through the corridor and saw him walk towards a laundry tub and turn on the tap. XX saw him washing his hands slowly. As XX observed the applicant washing his hands, XX further observed a small knife in his right hand which was also being washed. XX asked the applicant what happened and was told that the deceased called him a “dog” so he had a fight with him. XX was also cautioned not to say anything about the matter to anyone.

73. The applicant then left the premises and, later contacted a friend. The applicant and the friend met and had a conversation in which the applicant told his friend that he had stabbed the deceased. He gave this account of what occurred:

“He wouldn’t leave, he kept banging on the door. He kept saying ‘I’m going to come back tomorrow and the day after tomorrow and the day after that and the day after that and the day after that’, then he just came at me.”

74. It was also clear in the course of that conversation that the applicant did not know of the death of the deceased.

75. Shortly after the first conversation, the applicant spoke to another friend. He told the other friend that he had stabbed the deceased, and when asked what had happened, he gave this account:

“[XX] opened the door for him, and he ran at me and I stabbed him … he fell down the stairs onto the footpath and I ran off and came here.”

76. After these two conversations, the applicant returned to his home, and set about cleaning the front porch area with a bucket and mop. He used bleach as well. As he was cleaning the area, his housemate XX noticed that there were spots of blood on the ground and outside the front of the house.

77. Whilst cleaning the porch, the applicant found the deceased’s sunglasses on the front porch. He was then observed to walk a few meters away towards the street, and then call out to XX to ring 000. It was then that it became apparent that the deceased was lying in the gutter of the road, face up.

78. The ambulance arrived, and found that the deceased was dead.

79. That evening, the applicant attended the police station and told police that his friend had been stabbed, and sought their help. He gave an account which was completely inconsistent with the accounts of what had occurred earlier. He took the police back to his house on foot, and continued to give a false account. He told the police that the deceased “got trouble, he mouthed off to the wrong person”.

80. Crime scene examiners determined that the only blood found in the interior of the house was in the laundry, near and around the light switch. The bucket and mop were recovered. The mop returned a blood result which matched the DNA of the deceased. The bedroom occupied by the applicant had an operating lock which had not been forced or broken.

81. Upon autopsy, the forensic pathologist determined that the cause of death was a stab wound on the left anterior chest, front to back, left to right, to a depth of approximately 10cm. The forensic pathologist also identified a second stab wound to the mid-left posterior thigh in a generally upward direction, to a depth of about 8cm.

82. Upon the basis of this evidence, the Crown submitted that it had a strong case. It submitted that it was clear from a combination of the evidence that it was the applicant who had stabbed the deceased twice, one of which stab wounds had caused the death of the deceased.

83. The prosecution then submitted that it was clear that the applicant had taken steps to conceal the offence by washing the blood from himself and the knife, leaving the house to dispose of the knife, which has not been found, and then returning to the premises and making a reasonable attempt, using a mop, bucket and bleach, to clean the premises and remove any signs of the presence of the deceased and the stabbing from the premises, and then finally by giving a false account to police.

84. In addition, the Crown pointed to surrounding factual circumstances such as the statements by the deceased, that he was going to have a fight with the applicant, and the physical elements of the crime scene which demonstrated that, according to the Crown, although the deceased had attempted on a number of occasions to enter the house and speak with the applicant, having achieved entry into the house, but failing to engage the applicant, the deceased had left the premises and it was while he was leaving the premises that the applicant had burst out of his room carrying a knife and proceeded to stab the deceased twice.

85. Taken in combination, together with the other matters which I have referred, the Crown submitted that it was a particularly strong case for the prosecution.

86. Counsel for the applicant invited the Court to discount, or disregard, the account given in the statement by XX. It was asserted from the bar table that XX was a young man, aged about 16, who did not have English as his first language, was apt to have misinterpreted what had occurred, and was generally an unreliable witness.

87. Counsel for the applicant submitted that the Court would have careful regard to, and accept, the evidence of the two friends of the applicant who saw him a short time after the stabbing, and to whom the applicant gave an account which was consistent with acting in self-defence. It was submitted that the circumstances strongly corroborated the applicant’s acting in self-defence. Counsel for the applicant pointed to the undoubted evidence of the concerted and repeated efforts of the deceased to contact the applicant for the purpose of engaging in their fight. He pointed to the 36 phone calls which the applicant did not return. He pointed to the occasions, over a lengthy period of time, when the deceased sought by knocking on the front and rear doors of the premises to enter the premises, and the applicant who was in the company of corroborating witnesses, declined to engage, and advised those witnesses that the deceased should simply be ignored.

76. These were circumstances, counsel for the applicant submitted, which strongly pointed to the fact that the applicant was unlikely to have been the aggressor and rather that he was the peacemaker, in the dispute. Counsel for the applicant submitted that the issue of self-defence was likely to be resolved in the applicant’s favour because the Crown would not be able to exclude an hypothesis consistent with innocence, namely that it was a real possibility that the applicant, against the background of having not responded to the deceased’s knocking on his bedroom door, when he heard the deceased leave the premises, went to the front door to secure the house and to prevent the deceased from coming back into the house. Whilst the applicant was doing so, that it was the deceased who rushed at him and he acted in self-defence.

77. I will evaluate these competing submissions in due course.

Duration of Custody

90. As I have earlier drawn attention to, the applicant has been in custody for about 16 weeks, by this stage. It is anticipated that, on the next occasion when the matter is before the Local Court, namely 28 July 2015, the prosecution will have served the balance of the brief. The key material outstanding is forensic evidence, and “some telecommunications evidence”. Quite what that is was not put before the Court, nor were the reasons for the delay in obtaining that material explored at all by the evidence. No reason was given to indicate that this delay was caused by any default on the part of the prosecution, although the delay is that which results from the time taken for the prosecution to complete the service of the brief of evidence.

91. Assuming that the brief is complete by 28 July 2015, which may in itself be an assumption unduly favourable to the prosecution, it is unlikely that the applicant would have, together with his lawyers, read the material, understood the Crown case, and determined what approach to take to the committal hearing, much prior to the end of August 2015, namely about a month after service of the completed prosecution brief.

92. I infer that, at the earliest, the applicant would be committed for trial at the end of August, which would mean that he would be arraigned in this Court in either October or November, and assuming that a trial was fixed promptly, it is likely that he would stand trial somewhere around mid-2016, or perhaps a little later.

93. In other words, by the time he stands trial, the applicant will have been in custody for at least 15 months, and perhaps to 18 months or so, depending upon the exigencies of the process in the Local Court, and upon the timing of his arraignment in this Court. To adapt the words of Sperling J in R v Cain (No.1) [2001] NSWSC 116; (2001) 121 A Crim R 365, the prospect of an individual who has not been convicted spending as long as 18 months awaiting trial

“… is, absent exceptional circumstances, not consistent with modern concepts of civil rights”.

94. A period of 15 months, or perhaps longer, for an applicant awaiting trial on a charge less serious than that faced by the applicant here, was held in the Court of Criminal Appeal (Hoeben CJ at CL, R A Hulme J and R S Hulme AJ agreeing) to be described at [35] as “… a matter of concern …” in the context that:

“it is a very serious matter to deprive a citizen of liberty for such a long period of time when he has not been convicted of any offence.”

See R v Kugor [2015] NSWCCA 14.

95. The fact that these remarks were made when the Court was considering the unacceptable risk test, does not make them inapplicable if the Court is considering a show cause test.

Bail Proposal

96. The applicant proposes that, if released on bail, he would live with his paternal aunt and uncle in Kempsey. He offers to report to the Kempsey Police twice per day, abide by a curfew overnight, not to leave the State of NSW, or to approach any point of domestic or international departure.

97. As well, significant monetary sureties are promised by way of cash deposits, or deposits of title deeds to property.

98. Although the prosecution does not specifically seek any enforcement conditions, the applicant agrees to an enforcement condition with respect to his curfew: see s 30(3)(b) of the Act. From the course of argument, which largely turned on whether bail ought be granted at all, I propose to treat the prosecution’s silence and lack of opposition to an enforcement condition as being sufficient, in this case, to discharge the obligation upon the prosecution to seek an enforcement condition.

Show Cause Test

99. The applicant submits that he has shown cause as to why his detention is not justified by reference to the following:

1. the significant period of time before he would stand trial even if committed;

2. that there would be no unacceptable risks with respect to any bail concern if he was granted bail;

3. that the Crown case is a weak one, and it is unlikely that the Crown will be able to disprove self-defence;

4. that he is a young man who has never been held in custody prior to his arrest for this offence.

100. The Crown submits that the applicant has not shown cause why his detention is not justified because:

1. he is charged with a stabbing murder;

2. it is a strong Crown case;

3. the offence is alleged to have occurred a time when the applicant was subject to a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act;

4. the applicant has a history of non-compliance with bail acknowledgements and bail conditions;

5. there has been no unexplained, preventable or excessive delay in the prosecution of the case; and

6. there is no special hardship such as urgent or medical needs or extraordinary domestic duties which require the applicant to be at liberty.

101. As well, the Crown submits that there are unacceptable risks in the event that the applicant has shown cause.

Show Cause Test - Discernment

102. It is, sadly, the Court’s experience that a delay of between 12 and 18 months between a person being charged with a serious offence such as murder, and the commencement of their trial, is not out of the ordinary. That is not to say that such a delay is acceptable or desirable. Such a delay reflects the availability of resources in the criminal justice system to enable a fair trial process to take place in an orderly fashion. If greater resources were available, no doubt this time would be somewhat shortened. However, it is correct for the Crown to submit, at least on the material before this court, that no unusual or exceptional delay has as yet taken place, or can be foreseen to be likely. That does not derogate from the basic consideration of the impact of such a pre-trial period on an unconvicted individual: see [33] and [34] above.

103. I am not persuaded that the Crown case is a particularly strong one. Nor am I persuaded that it is an obviously weak case. The circumstances demonstrated before me seem to make it likely that the Crown will be able to prove that the applicant stabbed the deceased. He did so on more than one occasion although only one wound was fatal. The stabbing occurred in circumstances where the deceased had been the aggressor, in the sense of coming around to the applicant’s house and persistently, over a lengthy period of time, attempting to engage with the applicant. The same can be said of the large number of phone calls which the deceased made to the applicant. As well, the deceased was intent upon having a fight with the applicant.

104. There is no suggestion that there was any weapon found upon the deceased. The only weapon involved in the dispute seems to be the one used by the applicant. True it is that the deceased may have been intending to engage in a fistfight with the applicant, but the fact is that the applicant, in the course of the dispute, has resorted to the use of a knife.

105. Even if the applicant was acting in self-defence, the Crown may nevertheless be able to demonstrate to the satisfaction of the jury that the self-defence was excessive, which would result in a conviction for manslaughter: see s 421 Crimes Act 1900.

106. In the absence of an account from the applicant, given formally to the police after the event, or at least made available for this bail application by way of a statement or other account, the Court is confronted with the statements made by the applicant to various witnesses after the event as to what occurred during the event. One important integer for a jury in considering whether the Crown has disproved that the accused was acting in self-defence, is the “circumstances as he [the applicant] perceived them to be”: s 418(2) Crimes Act.

107. It is also necessary to keep in mind that the applicant, on this application, accepts that on the evening of the events he gave an entirely false account to the police. This is not a matter which stands in his favour as a matter of credibility on this application, or before the jury.

108. Shortly put, the facts and circumstances mean that the Crown will have to negative self-defence if it is to establish that the killing of the deceased by the applicant was an unlawful act. This is not one of those cases in which self‑defence does not arise. On the contrary, it is raised specifically by the evidence likely to be given by the Crown witnesses. However, the mere fact that the issue of self-defence is raised does not mean that the Crown case is thereby, a weak one.

109. There is no material before me from the applicant which indicates what his state of mind was at the time, what his perception of the circumstances was, what his reasoning, if any, was towards acting in the way he did and why, even if he was acting in self-defence, a jury would not be inclined to find, at the least, that the self-defence was excessive.

110. As well, in the absence of any account from the applicant, his conduct after the event which consisted of washing and disposing of the knife used in the stabbing, cleaning up the blood which spilt on the front porch of the house, and giving a false account to the police, does not stand well in his favour, but may well indicate the availability of a submission by the Crown to the jury that the applicant’s conduct ought be seen as constituting an admission by way of consciousness of guilt.

111. Of course, the Crown may not be able to succeed with such a submission to the jury if the evidence is different at the trial. For example, if the applicant was to attempt to explain why he undertook those various steps, the jury may well be prepared to accept that they did not disclose a consciousness of guilt. Nevertheless, at this stage, in the absence of any other material, they appear to me to show a consciousness of guilt, although not necessarily of the offence of murder.

112. It seems to me, from the material available to me, that I should conclude that the Crown case against the applicant on murder is sufficient to be put to the jury, and the jury will need to determine whether the Crown has negatived self-defence, beyond reasonable doubt.

113. To the extent that I am able to make an assessment of the likelihood of that occurring, it would be my assessment that the Crown case may well succeed, either in respect of murder or in respect of the statutory alternative of manslaughter. However, it must be acknowledged that this is not a strong Crown case in the sense that there are no particular eye-witnesses to the events, and the Crown will need to gather its case largely from the surrounding circumstances.

114. I am not prepared to find therefore that it is a strong or a weak Crown case. In my assessment, the Crown case is sufficient to be put before a jury for the jury’s determination. It may well, but is not highly likely to, succeed. Equally, a jury may find that the applicant acted in lawful self-defence.

115. At the end of this review, the Court is confronted, in order to consider the show cause test, with a lengthy, undesirable, but not atypical delay until trial, a young applicant who is in custody for the first time, and a Crown case of a serious offence which is likely to be put before the jury for its determination, but is not sure of success.

116. There is no particular identifiable reason for the applicant to be at liberty on bail. There is no suggested difficulty in preparing his defence. There are no suggested family or personal reasons why his detention is not justified. There is no suggested consequence to other individuals such as family members, of their being particularly disadvantaged by the applicant being held in custody. There is no physical or mental health condition which necessitates treatment outside of custody, or which can more conveniently be attended to in the community. The Crown case is not demonstrably weak, nor are there elements of it which would indicate that one or more elements of the offence are unlikely to be proven.

117. The anticipated length of detention is in a range which is not out of the ordinary. That is, it must be said, clearly longer than is desirable.

118. It is necessary now to make an evaluative decision, having regard to all of these matters as to whether the applicant has shown cause why, in the particular circumstances of this case, his detention is not justified.

119. In my opinion, he has. In this case, the factor which in my assessment is of particular importance, and to me assumes determinative significance, is the applicant’s age (he is 21 years old) combined with the length of time he will, for the first time, be in custody pending trial. For anyone to be held in custody for such a period is undesirable. For a person of a relatively young age, the adverse effects of such a length of time in custody are magnified. The applicant’s age means that he is still at a stage of intellectual, academic and vocational formation. It is well known that emerging scientific research, largely from the availability of longitudinal neuro-imaging studies, suggests that young males may not reach full intellectual maturity until their early to mid-twenties.

120. Whilst the charge is a serious one, and the Crown case is not a demonstrably weak one, my assessment means that in this case, those factors are outweighed by two features of age and length of time in custody to which I have just referred and, accordingly, in my opinion the applicant has shown cause why his detention is not justified.

Unacceptable Risk Test

121. The Crown submits that there is an unacceptable risk of the applicant not appearing in the event that he is granted bail. The Crown points to the applicant’s past record on bail and submits that, based upon that, notwithstanding the proffered conditions, the Court would find that there was an unacceptable risk of non-appearance.

122. The Crown further puts that if the applicant is granted bail there is a risk of commission of a serious offence, and thereby a danger to individuals or the community. The Crown points to the seriousness of the offence with which the applicant is charged. The Crown points to the fact that the applicant had a number of knives in his bedroom at the time. The Crown points to the fact that this offence occurred whilst the applicant was the subject of a good behaviour bond for the offence of assault in circumstances where the police facts allege that the accused threatened to kill the victim of that assault and a witness. The Crown also points to other material before the Court that suggests that the applicant may be violent, may have mood swings, and may be adversely affected by alcohol from time to time in a way which makes his conduct unpredictable. It needs to be said that this material is less than compelling.

123. The Crown submits that these matters demonstrate an unacceptable risk of the likelihood of the commission of a serious offence.

124. Finally, the Crown submits that there is an unacceptable risk of interference with a witness. The Crown points to the fact that the statement of XX, the applicant’s fellow resident, includes the remark from the applicant that his fellow resident should not tell anyone about what had happened. The police officer in charge of the investigation asserts that the applicant is aware of the whereabouts of a number of the witnesses, including members of the deceased’s extended family and that the applicant “presents an unacceptable level of risk to the community”. It is not suggested in any of this material that the applicant has threatened to harm any of the witnesses, nor is it suggested that he has, himself, attempted to contact or speak with these witnesses since being arrested. Nor is it suggested that he has asked anyone to do so on his behalf.

125. As well, the police assert a matter which is relied on by the Crown, that the applicant is personally at risk if granted bail, because the family and friends of the deceased “… are highly angered and agitated, and may seek revenge by harassing the accused at this emotional time”. No specific example of any threat is provided, but the police do express their “concerns” for the safety of the applicant himself.

126. I am not satisfied that there is any identifiable or real risk of interference with witnesses or evidence as the Crown submits. The mere fact that the applicant, immediately after the events, cautioned his fellow housemate not to tell anyone about what was seen, does not logically bespeak any risk to that witness from the applicant if he was released on bail. In any event, a bail condition precluding the applicant from contacting any prosecution witness would adequately address such risk. Nor am I satisfied from the material put before me that there is any risk whatsoever to other members of the deceased’s family. There is no reason to think that the events in question were not confined to a dispute between two individuals, and that the dispute was resolved, albeit violently, in a confrontation confined to those individuals.

127. There is no rational basis for these fears expressed by the police. I am not satisfied that any unacceptable risk arises with respect to this material.

128. The safety of the applicant, and the opinion of the police that it “… is increased whilst on remand in custody …” is a wholly irrelevant circumstance to a consideration of the unacceptable risk test. First, the safety of the accused is not a relevant bail concern: see s 17 of the Act. Secondly, none of the exclusive list of matters to be considered include, or allow for, a consideration of the safety of the applicant upon release: see s 18 of the Act. Thirdly, this opinion suggests that it is open to a court to order a person into, or detain a person in, custody for their own protection. Unless the person is subject to detention under the Mental Health Act 2007, or other specific legislation, such preventative detention is not lawfully available.

129. Nor am I satisfied that there is any unacceptable risk of the commission of a serious offence. The applicant’s history, largely as a juvenile, is of the commission of offences which are not serious and are at the lower end of the scale. They are obviously associated with the consumption of alcohol, a degree of teenage braggadocio and immaturity.

130. There is nothing to suggest that this applicant is likely to commit a serious offence, or is a danger to individuals or the community. There are no unacceptable risks of this. To the extent that there are, such bail conditions as are proposed would be adequate to address these.

131. The issue of whether there is an unacceptable risk of non-appearance is more difficult. The applicant’s history of breaches of bail does suggest an ongoing and continuing disregard for the terms of bail imposed by the Court but only on one occasion did this result in him not appearing in Court as required. That course of conduct is tempered by the fact that a number of the occasions occurred whilst the applicant was a juvenile. Others occurred in circumstances where his consumption of alcohol undoubtedly influenced his decision-making. They also occurred in circumstances where the applicant’s failure to comply with the breaches had not resulted in him entering into custody. In other words, the ultimate serious consequences of his failures may not have been as apparent to him then, as they now would be.

121. The applicant has now been in custody for over three months. It is his first time in custody. That will not have been a pleasant or natural experience. It has undoubtedly been a salutary one. Whilst, if released on bail, the applicant may be at risk of failing to appear, I am satisfied, having regard to his ongoing maturity, his experience of being in custody, the fact that he will be living with a paternal aunt and uncle who would be supervising him, that he would be required to report to the Kempsey Police Station twice a day and that close members of his family would be obliged to offer financial security for his appearance, that whilst there is a risk of non-appearances, it is not an unacceptable risk.

122. In summary, I am satisfied that there are no unacceptable risks with respect to the applicant if he was granted bail on the conditions which he proposes.

Conclusion

134. There will be a grant of conditional bail generally in accordance with the conditions proffered.

Order

135. There will be a grant of conditional bail upon the following terms:

Conduct requirements:

1. He is to be of good behaviour.

2. He is to live at xxx Kempsey NSW 2440 in the company of his aunt, YY, and his uncle, ZZ, and nowhere else.

3. He is not to leave and is to remain at that address between the hours of 8pm and 7am except if he is in the company either Ms YY or Mr ZZ.

4. He is to report to the Kempsey Police Station twice daily between the hours of 7am and 12 noon, and between the hours of 4pm and 8pm.

5. He is to appear at Central Local Court on 4 August 2015 and thereafter as required.

6. He is not to drink alcohol or enter any premises in which alcohol is sold.

7. He is not to take any illegal or prescription drugs except for a drug lawfully prescribed for the applicant.

8. He is not to make, or attempt to make, contact in any way, whether directly or indirectly through a third party, and whether in person, or by telephone or other electronic means including social media, with any person who has provided a statement to the Police, which statement has been served as part of the Crown brief.

9. He is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

Security requirements:

10. Two acceptable persons are to deposit $10,000 each and agree to forfeit that sum if the applicant fails to appear before court in accordance with these bail conditions.

Pre-release requirements:

11. The last-mentioned condition No.10 is specified as a pre-release requirement for the purposes of s 29 of the Bail Act 2013. It must be complied with before the applicant is released on bail.

Enforcement Conditions:

12. He is to present himself at the front door of the specified residential address at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of the applicant and the other occupants of the premises to the quiet enjoyment of the premises and to their privacy.

**********

Amendments

22 July 2015 - Typo

Decision last updated: 22 July 2015