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R v Fernando

R v Fernando

Case [2025] NSWSC 654 24 June 2025

Bail

Criminal Liability

Criminal Law

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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

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

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 Fernando

Details

AGLC: R v Fernando [2025] NSWSC 654
Case: [2025] NSWSC 654
Decision Date: 24 June 2025

CaseChat Overview and Summary

Fernando applied for bail in the Supreme Court of Victoria after being charged with murder. The applicant, an Aboriginal woman with significant mental health challenges, was accused of killing her newborn child. The prosecution's case was considered robust, with substantial evidence pointing towards the applicant's guilt. The central issue for the court was whether the applicant had demonstrated a sufficient cause to justify the grant of bail, despite the strength of the Crown's case.

The court carefully weighed the considerations for and against the grant of bail. It noted the seriousness of the offence, the strength of the evidence against the applicant, and the potential impact of a custodial sentence on her mental health. The court concluded that the applicant had not shown a compelling reason to warrant bail, given the severity of the charge and the likelihood of conviction. The court also considered the risk to the community and the need for the applicant to be detained to await trial.

The Supreme Court refused the bail application. It held that the cause had not been sufficiently demonstrated to warrant the grant of bail. The court ordered the applicant to remain in custody until the conclusion of the criminal proceedings.

Orders