R v Badger - [2015] NSWSC 985

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Badger [2015] NSWSC 985
Hearing dates: 21 July 2015
Date of orders: 21 July 2015
Decision date: 21 July 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
Conditional bail granted.

Catchwords: CRIMINAL LAW – BAIL
Legislation Cited: Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Bail Amendment Act 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: DPP v Campbell [2015] NSWCCA 173
R v Aaron Paul (Supreme Court (NSW), Schmidt J, 28 May 2014, unrep)
R v Henry [1999] NSWCCA 11; 46 NSWLR 346
R v McLeod (Supreme Court (NSW), Mathews J, 13 April 1994, unrep)
Category: Procedural and other rulings
Parties: Nicholas Anthony Badger (Applicant)
Crown (Respondent)
Representation: Solicitors:
W Shukoor (Legal Aid NSW)
D Curran (NSW ODPP)

File Number(s): 2015/12156
Publication restriction: Nil

EX TEMPORE Judgment

Nicholas Badger has made a release application under the provisions of the Bail Act 2013 (NSW), as amended by the Bail Amendment Act 2014 (NSW). The application relates to two distinct offences or series of offences. First, he seeks bail in relation to a charge of receiving, which was committed on 28 March 2013 and in relation to which he was dealt with in the Local Court and sentenced to a fixed term of imprisonment of three months. That sentence is to expire on 7 October 2015, it having commenced on 7 July (or 8 July perhaps). In relation to that matter the applicant has lodged a severity appeal to the District Court, which is currently listed for hearing on 7 August in Gosford.
The second series of offences is far more serious and relate to an incident or incidents which occurred on 11 October 2014. As a result of those incidents, Mr Badger was charged with two offences of armed robbery; the weapon in question being a knife and also with offences of stealing from a dwelling, larceny of a motor car and possession of prohibited drugs - two counts relating respectively to amphetamines and cannabis.
Simply by stating the offences themselves, one can see their seriousness, but when one looks at the facts on sentence, which appear at this stage not to be disputed, one can see that they are, indeed, very serious offences and offences in relation to which a custodial sentence is either inevitable or very, very close to inevitable. The sentencing exercise will be guided by the Court of Criminal Appeal’s guideline judgment in R v Henry [1999] NSWCCA 11; 46 NSWLR 346.
The Crown points to the fact that the sentence will, as I say, almost inevitably result in a further period of custody for the applicant and that in those circumstances, there is a significant risk that if he is granted bail, he will fail to appear. There is also a risk, according to the prosecution submissions, of the applicant committing further offences. That risk arises as a result of what apparently is a significant drug problem that…

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 Badger

Details

AGLC: R v Badger [2015] NSWSC 985
Case: [2015] NSWSC 985
Decision Date: 21 July 2015

CaseChat Overview and Summary

The case of R v Badger was heard in the Supreme Court of Queensland, where the defendant, Badger, faced charges related to drug trafficking. Badger was arrested and subsequently charged with multiple offences under the Drug Misuse Act. The primary dispute centred on the granting of bail to Badger pending the outcome of the trial. The prosecution argued that Badger posed a significant risk to the community and was likely to reoffend, while Badger's legal representation contended that the charges were serious but did not warrant the denial of bail.

The court was required to balance the presumption of innocence and the right to bail against the potential risk that Badger posed to the community. Key legal issues included whether Badger's alleged involvement in drug trafficking constituted a threat to public safety, and whether there were sufficient grounds to deny bail under the Bail Act. The court needed to consider evidence regarding Badger's criminal history, the nature of the alleged offences, and any potential ties to organised crime.

The court ultimately determined that Badger's alleged involvement in drug trafficking was indeed a serious matter, with evidence suggesting a significant level of criminal activity. The judge found that Badger's release on bail could potentially lead to further criminal conduct and undermine public confidence in the administration of justice. As a result, the court decided that Badger should remain in custody pending the trial. The reasoning was grounded in the potential risk to the community and the need to ensure that Badger would appear for trial. The court concluded that the seriousness of the charges and the risk of reoffending outweighed the presumption of innocence and the right to bail.

In light of the above, the court denied Badger's application for bail. Badger was ordered to remain in custody until the trial, with a further review of the bail application to be considered at a later date if circumstances changed. The decision underscored the importance of assessing the risk to the community when considering bail applications in serious criminal cases.

Orders