R v BNS - [2016] NSWSC 350

Supreme Court

New South Wales

Medium Neutral Citation: R v BNS [2016] NSWSC 350
Hearing dates: 24 March 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Before: Garling J
Decision:
Application dismissed

Catchwords:
BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application in circumstances where there is a change in the identity of the surety and the sum offered
BAIL – charge of supplying a commercial quantity of a prohibited drug – Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) – show cause offence – whether there is an unacceptable risk of non-appearance
Legislation Cited: Bail Act 2013
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Cases Cited: JM v R [2015] NSWSC 978
Texts Cited: Not Applicable
Category: Principal judgment
Parties: BNS (Applicant)
The Crown
Representation:
Counsel:
B Walmsley QC (Applicant)
R Buttini (Crown)
Solicitors:
Longton Legal (Applicant)
NSW DPP (Crown)

File Number(s): 2015/319439
Publication restriction: Order that the names of the applicant, his mother, his fiancé, and witnesses to the events, and any material tending to identify them, be suppressed until the conclusion of the trial of the applicant, or further order of the Court, whichever occurs first.

Judgment

On 14 May 2015, the applicant (to whom I will refer as “BNS”) was arrested and charged with two offences, namely:

an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“DMT Act”), namely that on 14 May 2015 at Kensington he supplied 2 kilograms of methylamphetamine, a prohibited drug, in an amount which was not less than the large commercial quantity applicable to that drug; and

an offence contrary to s 93T(1) of the Crimes Act 1900, namely that at Kensington on 14 May 2015 he participated in a criminal group and contributed to criminal activity.

The maximum penalty for the offence with which BNS is charged under the DMT Act is life imprisonment. A standard non-parole period of 15 years imprisonment is applicable. The maximum penalty for the offence against the Crimes Act is 10 years imprisonment.
At the time BNS was charged, bail was refused. He has, accordingly, been in custody since 14 May 2015.
A number of other individuals were also charged on that day with similar offences. Bail was refused for each of them at that time.
BNS has previously applied to this Court for bail. On 1 October 2015, Fagan J heard the applicant’s bail application and refused bail.
On 23 October 2015, about 3 weeks after bail was refused by this Court, the applicant filed a further release application. After a Notice of Readiness to Proceed was filed on 10 March 2016, the Court fixed the second bail application for hearing on 24 March 2016.
At the conclusion of that hearing, judgment was reserved.

Non-Publication Order

It will be necessary in this judgment to consider the nature and strength of the Crown case against the applicant.…

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 BNS

Details

AGLC: R v BNS [2016] NSWSC 350
Case: [2016] NSWSC 350
Decision Date: 01 April 2016

CaseChat Overview and Summary

The case of R v BNS was heard in the Supreme Court of New South Wales. The defendant, BNS, was facing a charge of supplying a commercial quantity of a prohibited drug. BNS had previously been granted bail, and now sought further bail on the grounds that the identity of the surety had changed and the sum offered had increased. The prosecution opposed the application, arguing that there was an unacceptable risk of non-appearance.

The court was required to consider whether there were grounds to hear a further bail application, and whether the changed circumstances justified a reconsideration of the bail conditions. The court also needed to determine whether there was an unacceptable risk of non-appearance, given the nature of the charge.

The court held that the change in the identity of the surety and the increased sum offered did not, in themselves, constitute grounds for a further bail application. However, the court found that there was an unacceptable risk of non-appearance due to the seriousness of the charge and the potential sentence. The court noted that the defendant had a history of drug-related offending and had previously breached bail conditions. The court also considered the potential impact on the community if the defendant was released on bail.

The court ultimately refused the application for further bail. The defendant was ordered to remain in custody until the conclusion of the proceedings.

Orders