R v Fernando

[2025] NSWSC 654

Supreme Court

New South Wales

Medium Neutral Citation:

R v Fernando [2025] NSWSC 654

Hearing dates:

20 June 2025

Date of orders:

24 June 2025

Decision date:

24 June 2025

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Bail refused

Catchwords:

BAIL – where applicant is accused of murder – Aboriginal mother with mental health challenges – where the Crown’s case is strong – whether cause has been shown – application refused

Legislation Cited:

Bail Act 2013 (NSW)

Cases Cited:

Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314

R v Alchin [2015] NSWSC 2112

R v S [2016] NSWCCA 189

R v Wright [2015] NSWSC 2109

Category:

Principal judgment

Parties:

Diane Fernando (Applicant)
Crown

Representation:

Counsel:
M Wade (Applicant)
L Shaw (Crown)

Solicitors:
Legal Aid New South Wales (Applicant)
ODPP New South Wales (Crown)

File Number(s):

2025/161328

Publication restriction:

Nil

JUDGMENT

1. This application is made in circumstances where the applicant has been bail refused since she was arrested in February 2025 and charged with murder in the second degree, an offence which attracts the maximum penalty of life imprisonment. She is next due before the Local Court at Newcastle on 9 July 2025.

2. There is no issue that in the circumstances the Bail Act 2013 (NSW) imposes an obligation on the applicant to show cause why her detention is not justified: s 16A. That cause has been shown is in issue. If cause is shown the bail concerns which the applicant poses and whether she poses unacceptable risks, must also be considered: ss 17-20. That is also in issue, there being no disagreement that those that arise to be considered are the risk of non-appearance, of the commission of a serious offence and of endangering the safety of the victim, individuals or the community.

3. At common law a person seeking bail is entitled to the presumption of innocence and has a general right to be at liberty, matters which still remain relevant. The principles are as discussed in Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314. But the Bail Act requires that the application be refused if cause is not shown.

4. The application has to be decided on the balance of probabilities: s 32. Taking into account evidence or information considered to be credible or trustworthy in the circumstances. It is not to be undertaken according to the laws governing the admission of evidence: s 31. In this case pertinent extracts from CCTV footage are in evidence.

5. Cause can be shown by a single powerful factor or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

6. The applicant relies on a combination of factors to satisfy the show cause requirements, including matters which arise under s 18 in respect of bail concerns. Under s 16A, the question of whether the applicant has satisfied the obligation to show cause is not confined to those matters. The matters relied on included:

• The applicant’s personal circumstances, including her childcare responsibilities and family and community ties;

• Her vulnerabilities owing to her Aboriginality and mental health problems;

• Delay, a trial likely not to be listed until late 2026 or early 2027;

• Her lack of criminal antecedents; and

• The strength of the Crown case.

7. That the applicant had mental health challenges, including suicidal ideation, for which she was pursuing treatment in the community before her arrest was established. As was that she did not always have care of the five younger of her seven children as a result.

8. They are now being cared for by her sister, as she has in the past on occasions. It is she who offers the applicant ongoing support, including as to residence if granted bail. That the applicant’s children are adversely affected by her being in custody must be accepted, as must that she has strong community ties and support.

9. I thus accept that the applicant’s personal circumstances support her contention that cause has been shown. The Court has recognised that regard must be had to the impact of the removal of a parent in cases such as R v Wright [2015] NSWSC 2109 and R v Alchin [2015] NSWSC 2112 on which reliance was placed.

10. In the latter McCallum J, as her Honour then was, accepted that a lengthy period on remand awaiting trial during which the applicant would in all likelihood see very little of his newly born first child if bail refused was a factor which was likely to perpetuate the cycle of disadvantage and deprivation notoriously faced in indigenous communities and specifically, in the applicant’s family: at [3]. Conditions calculated to break that cycle were then accepted to be a strong factor in finding cause had been shown.

11. It is pertinent, however, that the offending which there arose to be considered was much less serious than that which here arises. In other cases, very serious offending has precluded the Aboriginality of the applicant as being accepted as having shown cause: R v Greenup [2020] NSWSC 1866 for example. There it was proposed that the applicant would reside away from the community in which the alleged murder was committed. Each case must be decided in its own circumstances, but in this case such a distance in residence is not proposed.

12. Account also has to be taken of the fact that at the time of the murder this applicant was on conditional liberty, being subject to a conditional release order in respect of an offence of affray which she had committed in April 2024. Given the nature and seriousness of the offending involved in Mr Callahan’s murder and her alleged involvement in it, despite a limited prior record of violence, it cannot be accepted that her circumstances were relevantly similar to those considered in the cases relied on.

13. What is in issue arises to be determined in circumstances where there is no question that the applicant was present when the victim, Mr Callahan, was viciously murdered by a group of people who acted in concert on 17 November 2024. It was captured on both CCTV and a mobile phone.

14. What has to be considered includes not only the graphic murder which they depict, but the unfortunate trigger for the attack in which Mr Callahan was murdered. It was trivial. A comment he made at about 2:15 am to Ms Briggs, whose car the applicant was driving.

15. They had stopped and Ms Briggs had littered while Mr Callahan was sitting on the footpath nearby. He and Ms Briggs had a verbal altercation about her littering. It resulting in a scuffle in which others were involved, during which Mr Callahan was kicked in the face. The applicant intervening by pulling one of those involved in the fighting away.

16. This came to the attention of police who happened to drive by, stopped and spoke to the applicant and Ms Briggs. But this did not deter the assailants.

17. The applicant then drove Ms Briggs’ car away to a car park where a group of people met and the applicant used her phone. This was also captured on CCTV. The victim was tracked down and the applicant then drove Ms Briggs in her car to where he was located at an intersection.

18. The victim was soon attacked by a considerable number of people, including Ms Briggs, who stabbed him with a knife. He was also punched, grabbed and tackled, kept forcibly on the ground while he was kicked in the head and abdomen, before being stabbed multiple further times in the back and neck while he was lying prostrate on the ground. He died of his stab wounds, one of which had injured his heart.

19. There is no issue that the applicant was nearby. She remaining in the car, having driven close to the altercation and using its lights to illuminate the attack, before moving the car. She then waited nearby, before driving Ms Briggs and three others away from the scene to Ms Briggs’ home.

20. The applicant and others later made police statements. The applicant’s statement sheds light on her involvement, although she did not admit all that the CCTV footage depicts. A witness present in the car which the applicant drove to Ms Briggs’ home has also made a statement which establishes that what had happened was discussed by Ms Briggs and the applicant. That discussion further implicates the applicant in the murder.

21. Ms Briggs, the applicant and five others, one of them the applicant’s brother, have all been charged with Mr Callahan’s murder. Another accused has been charged with being an accessory after the fact.

22. The applicant denies having given Ms Briggs the knife she used to stab Mr Callahan, having known what was going on, having been involved in the murder, or having had such a conversation in the car.

23. What evidence will be accepted at her trial depends on the evidence which is led and what the trier of fact concludes, given what the parties then put in issue. That cannot be determined on this bail application.

24. On the applicant’s case the evidence against her is circumstantial and contains a number of gaps about which inferences will have to be drawn, if she is to be convicted, given the criminal onus. With the result that she has a real chance of acquittal.

25. Given the CCTV footage and other evidence, that those directly involved in the attack in which Mr Callahan was murdered will be convicted cannot be doubted. On all that evidence that the applicant is also likely to be convicted must be accepted. I am not persuaded that there is much likelihood of her acquittal.

26. There is no issue that if convicted the applicant will be sentenced to a significant term of imprisonment. The non-parole period will inevitably be greater than any time she will have spent in custody bail refused, notwithstanding that it is likely that the applicant will have been bail refused for up to 2 years before any hearing. That does not involve any undue delay and may be shortened if other accused enter pleas. That appears possible, given the significant reduction in their sentences which would result.

27. Having weighed all that has to be considered, I am unable to come to the conclusion that the applicant has shown cause, notwithstanding the combination of factors she relies on, given the strength of the Crown case and that the applicant was on conditional liberty at the time, having been convicted of affray.

28. Even if I had been, I am satisfied that s 19 of the Bail Act would require the application to be refused, the applicant not having established that she does not pose the unacceptable risks identified, which I am satisfied are established. Notwithstanding the conditions of bail she proposes.

29. Mr Callahan would of course not be at further risk, but I am satisfied that others would be. That conclusion is not only driven by the awful circumstances of his murder and the applicant’s apparent involvement in it, but also by the applicant’s earlier involvement in an affray and her evident breach of the terms of her conditional release, when she became involved in Mr Callahan’s murder, having decided to drive Ms Briggs’ car as she did.

30. The applicant’s proposed return to living in the community in which she was involved in Mr Callahan’s awful murder, while awaiting her trial, in my view makes the proposed conditions of bail incapable of establishing that she would not pose unacceptable risks, despite the presumption of innocence to which she is entitled.

31. The Crown’s case, that the applicant was involved in the coordinated attack on Mr Callahan which resulted in his murder, has a real foundation. She pursued that involvement at a time when she was on conditional liberty. In all of the circumstances I am unable to arrive at the necessary level of confidence that if released on the proposed conditions of bail, the applicant would comply with them.

32. Bail must thus be refused.

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Decision last updated: 26 June 2025