M v R

Case [2015] NSWSC 138 18 February 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: M v R [2015] NSWSC 138
Hearing dates: 16 February 2015
Date of orders: 18 February 2015
Decision date: 18 February 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Release application is refused

Catchwords: BAIL – release application – show cause requirement
Legislation Cited: Bail Act 2013 (NSW), ss 3, 16A, 16B, 17, 18, 19, 20A, 31
Bail Amendment Act 2014 (NSW)
Category: Principal judgment
Parties: [Non-publication order] (Applicant)
Regina (Respondent)
Representation:
Counsel:
Wilkins (Applicant)
H Kemp (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/178678
Publication restriction: Non-publication order re the identity of the accused and the deceased.

Judgment

HER HONOUR: This is a bail application [the name of the applicant is the subject of a non-publication order]. The applicant has been charged with 28 charges relating broadly to his treatment of the child of his partner. Bail is opposed for 15 of the charges, the most serious of which is a charge of murder. The other offences in respect of which bail is opposed are charges of common assault, assault occasioning actual bodily harm, producing child abuse material, inciting an act of indecency, injuring a child and one drug offence. For the remaining 13 charges the applicant enjoys the benefit of a right to release, since they are fine-only offences. The present application is not concerned with those offences.
The application was heard on Monday of this week, two weeks after the commencement of the Bail Amendment Act 2014 (NSW) (“the Amendment Act”). Two significant reforms were introduced by that Act. The first was to simplify the risk assessment task of the Court under the Bail Act 2013 (NSW) (“the Act”). Whereas previously the Court was required to determine whether there was any unacceptable risk and then to turn to consider whether that risk could be mitigated by the imposition of conditions, the amendment simplifies that process by incorporating within the task of assessing any bail concerns the prospect of imposing bail conditions so that the single task of the Court is to assess the unacceptability of any risk having regard to a series of mandatory considerations, including the bail conditions that might reasonably be imposed. That in my view is a welcome reform.
The second is the introduction of a show cause requirement in respect of certain serious offences. The offences to which the show cause requirement applies are listed in s 16B of the Act. The content of the requirement is that the accused person must show cause why his or her detention is "not justified".
I note that the Amendment Act also removed s 3(2) of the Act, which referred to the presumption of innocence and the right of an accused person to be at liberty. The presumption of innocence is, of course, a fundamental premise of the criminal justice system; the right of a person to be at liberty a fundamental aspect of the common law right of freedom…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M v R

Details

AGLC: M v R [2015] NSWSC 138
Case: [2015] NSWSC 138
Decision Date: 18 February 2015

CaseChat Overview and Summary

In the matter of M v R, the applicant sought bail in the Supreme Court of Victoria. M, the applicant, was seeking release from custody pending the resolution of criminal charges. The nature of the dispute centred on whether the applicant fulfilled the requirements for bail under the relevant legislation. The application was brought before the court to determine if the applicant met the criteria necessary for bail to be granted.

The primary legal issue before the court was whether the applicant had satisfied the 'show cause' requirement, which mandates that the applicant demonstrates why bail should be granted in their circumstances. The court had to assess the applicant's circumstances, including the seriousness of the charges, the risk of re-offending, and any other relevant factors, to determine if the applicant had met the threshold for bail. Additionally, the court considered whether the applicant's continued detention was necessary to ensure their appearance in court.

The court held that the applicant had not adequately demonstrated why bail should be granted in their circumstances. The court found that the seriousness of the charges and the risk of re-offending outweighed any arguments in favour of release. The applicant failed to provide compelling reasons that would justify their release on bail. Consequently, the court denied the application for bail. The reasoning was based on a careful evaluation of the evidence and the applicable legal principles. The court's decision was grounded in the need to balance the rights of the accused with the interests of justice and public safety.

The final order of the court was that the application for bail was dismissed. The applicant was to remain in custody pending the resolution of the criminal charges. The court's decision was definitive, reflecting the seriousness of the allegations and the need to maintain public confidence in the justice system.

Orders