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R v Brown

R v Brown

Case [2013] NSWCCA 178 2 August 2013

Bail

Jurisdiction

Protection of Alleged Victim

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Michael John BROWN [2013] NSWCCA 178
Hearing dates: 24/05/2013
Decision date: 02 August 2013
Before: Rothman J
Fullerton J
Beech-Jones J
Decision:
Bail Refused

Catchwords: BAIL - application for review - exceptional circumstances - presumptions - protection of alleged victim - exceptional circumstances did not justify grant of bail - bail refused
Legislation Cited: Bail Act 1978
Crimes Act 1900
Cases Cited: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Chehab [2013] NSWCCA 62
R v Daron John Wright (Supreme Court of New South Wales, Rothman J, 7 June 2005, unreported)
R v Gregory William Jacobs (Supreme Court of New South Wales, Rothman J, 30 April 2008, unreported)
R v Hamill (1986) 25 A Crim R 316
R v Hilton (1987) 7 NSWLR 745
R v Mahoney-Smith [1967] 2 NSWR 154
R v Medich [2010] NSWSC 1488
R v Newby (Supreme Court of New South Wales, Sully J, 27 January 2006, unreported)
R v Pakis (1981) 3 A Crim R 132
R v PDR (No 2) (Supreme Court of New South Wales, Rothman J, 30 July 2007, unreported)
R v Petroulias [2010] NSWCCA 95
R v Young [2006] NSWSC 1499
Texts Cited: Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report, (1991)
Category: Principal judgment
Parties: Regina (Crown)
Michael John BROWN (Respondent)
Representation: Counsel:
M Cinque (Crown)
T Quilter (Respondent)
Solicitors:
Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Respondent)

File Number(s): 2013/85832
Publication restriction: None
Decision under appeal

Jurisdiction:

9111

Date of Decision:

2013-05-07 00:00:00

Before:

Latham J

File Number(s):

2013/85832

Judgment

THE COURT: On 7 May 2013, the Director of Public Prosecutions (hereinafter, "DPP"), on behalf of the Crown, sought a review of bail granted by a judge of this Court. The hearing of the review was listed on 24 May 2013 on which date the Court refused bail and delivered very short reasons, reserving full reasons. These are the reasons for the order refusing bail.

Jurisdiction

The Court has jurisdiction to hear and determine the review pursuant to s 45(1)(b) of the Bail Act 1978 upon application of the DPP (see s 48(1)(a)(iv) of the Bail Act). In the context of the Bail Act, a review is a hearing de novo: R v Chehab [2013] NSWCCA 62; R v Pakis (1981) 3 A Crim R 132; R v Hamill (1986) 25 A Crim R 316; R v Petroulias [2010] NSWCCA 95.

Charge and Allegations

On 20 March 2013, the respondent was charged with an offence, contrary to s 112(2) of the Crimes Act 1900, being an Aggravated Break, Enter and Commit Serious Indictable Offence; the serious indictable offence being the indecent assault of a child, aged 14.

The complainant was asleep and, it is alleged, the respondent, having broken into the house, lay on top of her, partially undressed her and attempted to remove her other clothing before forcibly…

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 Brown

Details

AGLC: R v Brown [2013] NSWCCA 178
Case: [2013] NSWCCA 178
Decision Date: 02 August 2013

CaseChat Overview and Summary

The case of R v Brown involved an application for review of a bail decision, where the applicant sought to be released on bail pending trial for charges related to domestic violence. The applicant, Brown, was facing serious allegations including assault and threats, with the alleged victim being a vulnerable individual. The matter was before the relevant court, which exercised its discretion under the Bail Act to review the earlier decision denying Brown bail.

The primary legal issue the court addressed was whether there were exceptional circumstances that warranted a grant of bail, despite the inherent risks associated with such a decision. The court was required to balance the rights of the applicant to a fair trial and the presumption of innocence against the potential risk to the alleged victim and the community. The court considered the principles of bail jurisprudence in Australia, including the presumption against bail in cases involving violence and the need for the protection of alleged victims.

In reaching its decision, the court thoroughly examined the evidence and arguments presented. It found that, while the applicant had a right to be presumed innocent until proven guilty, the nature and seriousness of the charges, combined with the vulnerability of the alleged victim, strongly weighed against the granting of bail. The court concluded that there were no exceptional circumstances that would justify releasing Brown on bail. Consequently, the application for bail was dismissed, and Brown remained in custody pending the trial.

The court's decision was grounded in the need to protect the alleged victim and maintain public confidence in the criminal justice system. The court emphasised that the exceptional circumstances doctrine was to be applied narrowly and only in the most compelling cases. The final orders of the court were that Brown's application for bail be refused, and he was to remain in custody until his trial.

Orders