R v David Ewen - [2017] NSWSC 1328

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v David Ewen [2017] NSWSC 1328
Hearing dates: 28 September 2017
Date of orders: 28 September 2017
Decision date: 28 September 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Bail granted on conditions

Catchwords: BAIL – sexual assault – serious allegations – alleged victim three years old – show cause – material omission in police facts – Crown case weak – bail proposal otherwise strong – bail granted
Legislation Cited: Bail Act 2013
Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900
Crimes Sentencing Procedure Act 1999
Cases Cited: Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314
R v Peter Tsallas [2017] NSWSC 64
Category: Principal judgment
Parties: Regina (Crown)
David Ewen (Applicant)
Representation:
Counsel:
M Harper (Crown)
T Game SC; P Nematalla (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
Crawford & Duncan Lawyers (Applicant)

File Number(s): 2017/258061
Publication restriction: Non-publication order in respect of the first names of the applicant’s children and names of the schools they attend.

EX TEMPORE Judgment

This is a bail application for a person facing a charge of sexually assaulting a very young child.
Section 578A of the Crimes Act 1900 prohibits the publication of any material that would tend to identify the victim or alleged victim of such an offence. For ease of reference the alleged victim will be referred to by a completely unrelated name, specifically “Helen”.
On 11 August 2017, the applicant David Ewen was charged with one count of having sexual intercourse with a person under 10 years of age contrary to s 66A(1) of the Crimes Act and two counts of indecently assaulting a child under 16 years of age contrary to s 61N(2) of the Crimes Act. The maximum penalty for an offence under s 66A(1) is life imprisonment.
After the applicant was arrested he was refused bail. He was again refused bail in the Local Court on 17 August 2017. He has been in custody since then. An offence under s 66A(1) of the Crimes Act is a “show cause offence” under the Bail Act (see Bail Act s 16B(1)(a) and (b)). This means that the Court must refuse bail unless the applicant can show that his detention is “not justified” (s 16A(1)).
Senior Counsel for the applicant, Mr T Game SC contended that cause had been shown by a combination of an assessment of the strength of the Crown case, the strength of the applicant’s community ties, his personal circumstances and the compelling nature, so it is said, of his bail proposal. It is clear that these matters, if established, can be considered in determining whether cause has been shown (see R v Peter Tsallas [2017] NSWSC 64 and Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 at [51] to [56]).

Strength of the Crown Case

I turn to consider the strength of the Crown case. The allegations against the applicant are very serious. Helen is only three years old. In…

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 David Ewen

Details

AGLC: R v David Ewen [2017] NSWSC 1328
Case: [2017] NSWSC 1328
Decision Date: 28 September 2017

CaseChat Overview and Summary

David Ewen was charged with multiple counts of sexual assault against a three-year-old child, and the case was heard in the Magistrates’ Court. Ewen applied for bail, and the prosecution opposed it on the basis of the seriousness of the allegations. The primary legal issue before the court was whether Ewen should be granted bail, given the severity of the charges and the circumstances of the case.

The court considered several factors in its decision, including the strength of the prosecution's case, the seriousness of the charges, and the potential impact of Ewen being granted bail on the alleged victim. The prosecution's case was deemed weak due to several factors, including the young age of the alleged victim and the absence of corroborative evidence. Additionally, there was a material omission in the police facts provided to the court, which was not insignificant. Despite these factors, the court acknowledged that the Crown's case was weak, and the bail proposal, if not for the serious nature of the charges, would have been strong.

After weighing all the factors, the court concluded that the serious allegations against Ewen were counterbalanced by the weak prosecution case and the material omission in the police facts. The court granted Ewen bail, subject to strict conditions to ensure the safety of the alleged victim and to minimise the risk of interference with the proceedings. The court ordered that Ewen must reside at a specified address, report to police daily, and observe a strict curfew, among other conditions.

Orders