R v Callaghan

[2021] NSWSC 842

Supreme Court

New South Wales

Medium Neutral Citation:	R v Callaghan [2021] NSWSC 842
Hearing dates:	12 July 2021
Date of orders:	13 July 2021
Decision date:	13 July 2021
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Bail refused.
Catchwords:	BAIL – “show cause” requirement – where applicant has satisfied grounds for further release application – where material about proposed rehabilitation program is insufficiently comprehensive or reliable – where available evidence does not suggest a drug addiction which requires rehabilitation – “show cause” requirement not met – application for bail refused
Legislation Cited:	Bail Act 2013 (NSW) s 74
Category:	Principal judgment
Parties:	Christien Callaghan (Applicant) Crown (Respondent)
Representation:	Solicitors: Astoria Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2021/189112
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 11 June 2021, Wright J heard and determined a release application by Christien Callaghan. His Honour dealt in commendable detail with Mr Callaghan’s application and concluded that Mr Callaghan had failed to satisfy his Honour that he had shown cause why his continued detention was not justified. For the sake of brevity, I gratefully adopt his Honour’s recitation of the factual background and submissions of the parties. A familiarity with his Honour’s analysis and reasons for judgment is therefore assumed for present purposes.

2. Mr Callaghan has now brought a further application for bail. In the circumstances, he is necessarily confronted with the terms of s 74 of the Bail Act 2013 which provides relevantly as follows:

74 Multiple release or detention applications to same court not permitted

(1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.

(2) …

(3) For the purposes of this section, the grounds for a further release application are--

(a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) circumstances relevant to the grant of bail have changed since the previous application was made, or

(d) the person is a child and the previous application was made on a first appearance for the offence.

(4) …

3. Mr Callaghan contends that material information relevant to the grant of bail is now to be presented in this application that was not presented to the Court on the previous occasion. Having considered that further information, I am satisfied that it was not presented to Wright J or considered by him and that the s 74 obstruction to a further application is overcome.

4. Mr Callaghan now wishes to re-address the requirement that he show cause by reference to the fact that he has secured a placement within the Gadibundhu Home of Sober Living, which I am informed administers a rehabilitation program. The only particulars relating to that program and the details of how it is administered are set forth in an affidavit dated 30 June 2021 sworn by Steve Riddal, the director and co-ordinator of Gadibundhu Home of Sober Living. Mr Riddal provided the following information:

“3. The aim of Gadingundhu [sic!] is to provide supported medium-term accommodation for recovering alcohol and other drug dependent male persons in a protected environment and through our structured program designed to empower each client to become self-dependant. The residents are required to live at the facility on a full-time basis as part of the program.

4. We believe in helping people break their negative attachments to the environment from which they have established their former life-style by discovering new friendships, new coping mechanisms and new support networks.

5. Long separation is common between these people because of prolonged drug and alcohol abuse and gaol terms therefore we need to foster a supportive and receptive atmosphere geared toward reconciliation.

6. One of our main objectives is to continue to liaise with private and government departments, who understand the needs of our client base, so that we can continue to resource the services available which, contribute to the enhancement of each client.

7. Additionally, to meet these objectives we maintain and encourage a good and knowledgeable working relationship between the clients and the management committee, which enables us to address issues, concerns and requested activities as they arise.

8. This is achieved by:

a. Client assessment

b. One to one counselling

c. Regular in-house meetings

d. Group involvement utilising the expertise of field workers, committee members and qualified volunteers

e. Introduce life skills.

9. A typical day for Mr Callaghan would be:

a. 8am                      Coffee and group

b. 9.30am                 Breakfast, chores, shower and dressed

c. 9am-11.30am       Meetings

d. 11.30am-1pm       Lunch within the facility

e. 12.30pm-4.30pm  Meetings

f. 6pm                       Dinner within the facility

g. 7pm-10.30pm       Free time within the facility

h. 11pm                    Lights out (he will not be permitted to leave the facility during this time.

10. Whilst at the facility or out of the facility, residents are always supervised by a member of staff which is critical to compliance with bail and their rehabilitation.

11. I will undertake to inform the court or Police or his legal representative should he fail to adhere to any of his bail requirements.

12. If I become aware that Mr Callaghan is not allowed to have a mobile phone or other mobile electronic device. If I become aware that Mr Callaghan has breached any conditions relating to his possession or use of such a device in breach of his bail, I will also undertake to report this to the police or the court or his lawyer.

13. We are currently a house with residents who are not permitted to possess a mobile phone by their bail conditions and any failure to adhere to that condition, as an example, will be reported to the authorities.”

5. The Crown has submitted that this material is insufficiently comprehensive to give any reliable indication of how the program works or what constraints are applied to patients at the program. The Crown is particularly concerned that there appears to be no exclusive residential requirement and that for all that one can determine, Mr Callaghan would be free to leave the premises when not otherwise engaged in organised meetings or activities. The Crown also raises a more general concern that the program is not well known, at least in the experience of those in charge of the current investigation.

6. For my part, I confess to some concern that the program is not well described or documented. The number of staff employed at the program and their particular qualifications are nowhere described. It also appears from material before me that the only member of staff on site after 4.30pm each day is Mr Riddal. There is no clearly described or enforced condition that patients remain at the premises at all times or that they are only permitted to leave the premises if accompanied.

7. However, the evidence before me is deficient in another, more fundamental respect. The unstated assumption in Mr Callaghan’s application is that he is suffering from some addiction to alcohol or illicit substances for which problem he requires professional medical or therapeutic intervention and assistance. Unfortunately, there is no evidence to say so, apart from what I assume to be the inference that arises from his criminal history. However, not since 2011 has Mr Callaghan been convicted of any offence that suggests a problem with alcohol or drugs, in which year he was convicted of possessing a prohibited drug. That charge was dismissed pursuant to s 10. Although it is not uncommon for offenders, such as Mr Callaghan in this case, who have been charged with supply offences, to themselves also have some related addiction, the evidence in this case does not suggest it or that it is problematic for him.

8. It seems to me that before Mr Callaghan could establish that he needed some form of drug or alcohol rehabilitation or assistance, so as to demonstrate that he has shown cause why his continued detention is not justified, it would be necessary for him to lead some evidence about it. My attitude to bail for the purposes of attending appropriate therapeutic courses is well documented, and I am strongly in favour of any steps that might operate to break the cycle of drug and alcohol dependence and related criminality. However, even for someone favourably disposed to this approach, it is not possible to make assumptions about an applicant’s need to be released to attend such a course if there is no material with the benefit of which any decision about it can be made.

9. It follows in my opinion that Mr Callaghan has not shown cause why his continued detention is not justified. The application for bail is therefore refused.

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Decision last updated: 13 July 2021