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R v Farrell

R v Farrell

Case [2016] NSWSC 1278 9 September 2016

Bail

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Farrell [2016] NSWSC 1278
Hearing dates: 8 September 2016
Decision date: 09 September 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Bail granted

Catchwords:
BAIL – where previous application refused by the court – whether court to refuse to hear another release application – change of circumstances relevant to the grant of bail – where trial date vacated due to no fault of applicant – new trial date 11 months later – further release application not precluded
BAIL – show cause offence – consideration of proper approach to show cause requirement where bail concerns able to be addressed by bail conditions – relevance of delay – three year delay between arrest and trial – importance of guarding against erosion of civil rights by normalisation of delay in a stretched criminal justice system
Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 19, 20, 31, 74
Crimes Act 1900 (NSW), ss 29, 33A
Cases Cited: DPP (NSW) v Tikomaimaleya [2015] NSWCA 83
M v R [2015] NSWSC 138
R v Cain (No 1) [2001] NSWSC 116
Category: Principal judgment
Parties: Corey George Farrell (applicant)
Regina (respondent)
Representation:
Counsel:
I Lloyd QC (applicant)
E Balodis (crown)
Solicitors:
Goold Law (applicant)
NSW DPP (crown)

File Number(s): 2016/205386
Publication restriction: None

Judgment

HER HONOUR: Corey George Farrell seeks bail for two offences of shooting with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW). The maximum penalty for the offences is imprisonment for a period of 25 years. He faces two further charges, which I understand to be back-up charges, of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act, an offence also carrying a maximum penalty of imprisonment for 25 years.
A brief synopsis of the Crown case against Mr Farrell is as follows. The victims of the shootings are the boyfriend of Mr Farrell's sister and the boyfriend's father. There had, according to cogent evidence, been a lengthy period of acrimony between the boyfriend and Mr Farrell's sister involving insults and threats levelled by each towards the other including, of particular importance, serious threats by the boyfriend to the girlfriend and her family, including the applicant.
There is no doubt that the boyfriend and his father were shot in April 2014. The father, it seems, was seriously injured. The issue for the trial will be the question of the identity of the shooter. The Crown case is that it was the applicant. That is supported by text messages allegedly sent by the boyfriend to the girlfriend effectively immediately after the shooting identifying the applicant as the shooter. However, when police attended the scene of the shooting, neither victim identified the applicant. The boyfriend has refused to co-operate with police at all in respect of the offences and, indeed, has pleaded guilty to a charge of concealing a serious indictable offence and served a term of imprisonment evidently referable…

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 Farrell

Details

AGLC: R v Farrell [2016] NSWSC 1278
Case: [2016] NSWSC 1278
Decision Date: 09 September 2016

CaseChat Overview and Summary

The case of R v Farrell involved a bail application made by the respondent, who had previously been denied bail by the court. The central issue before the court was whether it should consider a further bail application, given the refusal of a previous application and the absence of any change in circumstances that would warrant reconsideration. The case also examined the appropriate approach to the 'show cause' requirement in bail applications, particularly where the concerns about granting bail could be mitigated through appropriate bail conditions.

The court addressed the legal issues by examining the principles surrounding bail applications and the 'show cause' requirement. The court considered the importance of addressing concerns about bail through conditions rather than outright refusal, especially when the delay in the trial process was not due to the applicant's fault. The court emphasised the significance of protecting civil rights and preventing the normalisation of delays in the criminal justice system. It was noted that a three-year delay between arrest and trial was substantial, and the court had to balance this with the need to ensure fair treatment of the applicant.

In reaching its decision, the court found that the delay in the trial date, which was vacated due to no fault of the applicant and rescheduled for 11 months later, constituted a change of circumstances. The court held that this change warranted reconsideration of the bail application. The court also determined that the 'show cause' requirement should be applied flexibly, particularly when the concerns about bail could be addressed through appropriate conditions. The court concluded that a further release application was not precluded, and it would consider the merits of the application on its own merits.

The final orders of the court were that the application for bail would be considered on its own merits, taking into account the changed circumstances and the ability to address any concerns through bail conditions. The court did not dismiss the application outright but directed that it would be heard and decided based on the current state of the case.

Orders