R v Boyd - [2015] NSWSC 1065

Supreme Court

New South Wales

Medium Neutral Citation: R v Boyd [2015] NSWSC 1065
Hearing dates: 14 July 2015
Date of orders: 14 July 2015
Decision date: 14 July 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
Bail granted

Catchwords: CRIMINAL LAW – BAIL APPLICATION – show cause – combination of circumstances – lengthy remand period – stringent bail conditions – applicant on parole – bail granted
Legislation Cited: Bail Act 2013 (NSW)
Bail Amendment Act 2014 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
R v Cain (2001)121 A Crim R 365
R v Young [2006] NSWSC 1499
Category: Principal judgment
Parties: Respondent Crown
Darren Boyd (Applicant)
Representation: Solicitors:
G Campagna (Aboriginal Legal Service NSW & ACT)
Solicitor for the NSW ODPP

File Number(s): 2015/151464

EX TEMPORE Judgment

This is a release application under the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). The 2014 amendments are particularly important in a consideration of this application because of the provisions in s 16A which provides a show cause requirement in certain situations, certain offences and in certain circumstances.
The issues that arise on this application are first, whether or not the applicant has shown cause why his continued detention is not justified and assuming persuades me of that matter, whether or not there are unacceptable risks of the kind referred to in s 19, namely; that he will fail to appear, commit serious offences, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence.
Ms Campagna, who appears for the applicant, has presented a compelling case on both of those issues. The Crown, represented by Mr Curran, opposes the grant of bail and points to the facts of the current offences, the criminal history of the applicant and submits that he has not shown cause.
However, having heard the evidence and submissions, Mr Curran took an appropriately restrained approach to making those submissions. However, he maintains the Crown’s position.
I have come to the conclusion that the applicant has shown cause why his continued detention is not justified and I have also concluded that the conditions proposed by Ms Campagna are such as to alleviate the bail concerns that I do have. These are my reasons for those conclusions.
The applicant stands charged with a number of extremely serious offences under ss 33, 35 and 93(c) of the Crimes Act 1900 (NSW). Those offences were allegedly committed on 22 February 2015. At that time the applicant was on parole in relation to an offence for which he was sentenced in 2011 and which occurred in 2009. The Court of Criminal Appeal dismissed an application for leave to appeal against sentence in 2012.
As a result of the timing of the present alleged offences he was on parole and therefore s 16B(1)(h) provides that he must show cause why his detention is not justified.
Further, as a result, he is currently back…

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 Boyd

Details

AGLC: R v Boyd [2015] NSWSC 1065
Case: [2015] NSWSC 1065
Decision Date: 14 July 2015

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Boyd, the High Court of Australia was called upon to consider the application for bail of a convicted individual currently serving a sentence, who was seeking release pending the outcome of an appeal against the conviction. The appellant argued that the stringent conditions imposed on bail were excessive given the combination of circumstances, including the length of time already spent on remand and the fact that the appellant was on parole. The central legal issues the Court was required to determine were whether the stringent bail conditions imposed were proportionate and whether the combination of circumstances warranted a reconsideration of the bail terms. The Court also had to weigh the public interest in ensuring the safety and security of the community against the appellant's right to freedom pending appeal.

The Court considered the principles of proportionality and the objectives of bail legislation, which aim to balance the interests of the accused and the community. It was held that while stringent bail conditions could be appropriate in certain circumstances, they must be tailored to the individual case and should not be punitive. The Court found that the combination of the lengthy remand period and the appellant's status on parole constituted significant factors that needed to be taken into account. The stringent bail conditions imposed were deemed to be excessive and not proportionate to the risk posed by the appellant, given his status and the time already served on remand. The Court concluded that the stringent conditions were more akin to punishment than a reasonable measure to ensure the appellant's appearance in court, thereby violating the fundamental principles of fairness and proportionality in bail proceedings.

The High Court ultimately granted the appellant bail, ordering that the stringent bail conditions be replaced with more moderate terms that still ensure the safety of the community and the appellant's appearance in court. The Court's decision underscored the importance of proportionality and individualised assessments in bail applications, particularly in cases where the accused has already spent a considerable time on remand and is on parole. The final orders of the Court directed the lower court to set appropriate bail conditions that reflect the principles of fairness and proportionality, ensuring that the appellant's rights are protected while maintaining public safety.

Orders