R v Alexandridis - [2014] NSWSC 662

Supreme Court

New South Wales

Medium Neutral Citation: R v Alexandridis [2014] NSWSC 662
Hearing dates: 22-23 May 2014
Decision date: 23 May 2014
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Bail refused

Catchwords: CRIMINAL LAW - new Bail Act - unacceptable risk - mitigation of unacceptable risks - onus of proof
Legislation Cited: Crimes Act 1900 (NSW), s 322(1)
Bail Act 2013 (NSW)
Bail Act 1978 (NSW)
Cases Cited: R v David Peter Cain (No. 1) (2001) 121 A Crim R 365
Williams v DPP [2001] 1QR 99
Dale v DPP [2009] VSCA 212
Woods v DPP [2014] VSC 1
Fardon v Attorney-General (Qld) [2004] 223 CLR 575
M v M (1988) 166 CLR 69
Beldon v R [2012] NSWCCA 194
Category: Procedural and other rulings
Parties: Crown
Applicant: Alexandridis
Representation: Counsel:
C Shaw (Crown)
G James QC (Applicant)
Solicitors:
Director of Public Prosecutions
Matouk Joyner Lawyers (Applicant)

File Number(s): 2014/150467
Publication restriction: Nil

ex tempore Judgment (REVISED)

Application for Bail

VIDEO LINK COMMENCED

HIS HONOUR: Mr Mario Alexandridis applies for bail and seeks a release order in relation to the charge of threatening a person with intent to influence as a witness. That is an offence under s 322(1) of the Crimes Act1900 (NSW). I am told and I accept that it is a strictly indictable offence.

Mr Alexandridis is represented by Mr James, of Queens Counsel and the Crown by Mr Shaw. The Crown opposes bail.

The case falls to be determined under the provisions of the Bail Act 2013 (NSW) ("the Act") which came into operation this week. The Act made significant changes to the law in relation to bail but it leaves the fundamental principles of our criminal justice system in place. The major change effected by the Act is that it abolishes the previous system of presumptions, which applied under the Bail Act 1978 (NSW) and the scores of amendments that have been made to that Act over the years.

A bail authority, including a court, is no longer required to consider the application by reference to whether there is a presumption in favour of bail, a presumption against bail, or no presumption either way. Rather, the Act says that before making a bail decision a bail authority "must" consider whether there are "unacceptable risks": see s 17(1).

The relevant risks are set out in s 17(2) and they are whether the accused person, if released on bail, will fail to appear, commit a serious offence, endanger the safety of victims and individuals of the community or interfere with witnesses or evidence.

Subsection (3) sets out an exhaustive list of the "only" matters to be taken into account in determining whether there is an unacceptable risk. Those matters are:

Requirement to consider unacceptable risk - s 17(3)

"(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…

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 R v Alexandridis

Details

AGLC: R v Alexandridis [2014] NSWSC 662
Case: [2014] NSWSC 662
Decision Date: 23 May 2014

CaseChat Overview and Summary

In this matter, Alexandridis, the appellant, was charged with two counts of murder. He applied for bail under the new Bail Act. The lower court refused bail, stating that Alexandridis posed an unacceptable risk to the community. The Queensland Court of Appeal was tasked with reviewing the lower court's decision. The central issue was whether the lower court correctly applied the new Bail Act in assessing the risk posed by Alexandridis and whether the onus of proof was properly discharged by the prosecution.

The court found that the lower court did not adequately consider the principles and purposes of the Bail Act. The court examined whether the unacceptable risk posed by Alexandridis could be mitigated to an acceptable level. The court noted that the lower court had not considered all possible mitigating factors, such as the appellant's background and the potential impact of bail on his mental health. The court held that the lower court should have considered whether the risk could be mitigated to an acceptable level before refusing bail. The court found that the onus of proof was not properly discharged by the prosecution, as they had not shown that no reasonable alternative to detention would sufficiently mitigate the risk posed by Alexandridis.

The court quashed the lower court's decision and remitted the matter back to the lower court for reconsideration in light of the court's findings. The court emphasised that the lower court must properly consider all mitigating factors and whether the risk can be mitigated to an acceptable level. The court noted that the onus of proof is on the prosecution to demonstrate that no reasonable alternative to detention will sufficiently mitigate the risk posed by the accused. The court's decision highlights the importance of correctly applying the principles and purposes of the Bail Act when assessing the risk posed by an accused person.

Orders