R v Fesus

Case [2014] NSWSC 770

Supreme Court

New South Wales
Case Title: R v Fesus
Medium Neutral Citation: [2014] NSWSC 770
Hearing Date(s): 16 June 2014
Decision Date: 16 June 2014
Jurisdiction: Common Law
Before: Adams J
Decision:

Conditional bail granted.

The non-publication order is varied to permit publication of the full unredacted judgment to the Attorney-General.
Legislation Cited: Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Category: Interlocutory applications
Parties: Steven Frank Fesus (Applicant)
Regina (Respondent)
Representation
- Counsel: Counsel:
S Dowling SC (Respondent)
- Solicitors: Solicitors:
Nyman Gibson Stewart (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2014/115863

APPENDIX

Introduction

  1. At the time of granting bail on 16 June 2014, brief oral reasons were delivered. I have expanded those reasons somewhat for present purposes to enable a better understanding of the reasoning applied to the matter but without changing the substance of the reasons that were delivered in open court. At all events, most were matters stated, one way or another, during submissions. Because of the ensuing publicity, I have decided that some parts of my reasons should be published. This is the redacted version.

  2. Previous applications for bail were made in this Court on 4 October 2013 and 20 December 2013. Bail was refused, essentially on the ground that the applicant had not established exceptional circumstances justifying a grant of bail, as mandated the Bail Act 1978 (NSW), as it was then in force.

    Background

  3. The applicant, a 41 year old man, is currently charged with murdering his wife. They had met in early 1995 and began to live together as partners from August 1995. The deceased was pregnant when the couple met (that child being born in July 1995) and they had one child together (born in June 1996). Although between February and May 1997 there were problems in the relationship, the pair married in May 1997. Between June and August 1997, the deceased had told a friend about wanting to leave the applicant but did not do so. There was other evidence that the deceased had told the applicant that, if he did not change his attitude, she would leave him and take the children. The two argued and fought at the house of a friend on 11 August 1997 although they left together, the deceased having declined an invitation by the friend to stay the night with her. The deceased spoke on the telephone later that evening with her mother. That was the last contact anyone had with her, so far as the police investigation shows.

  4. The body of the deceased was found in the evening of 14 September 1997 in a shallow grave on Seven Mile Beach near Gerroa. Unfortunately by that time, decomposition had the result that an autopsy, conducted by pathologist Mr Paull Botterill on 16 September 1997, was unable to establish the mechanism of death. The prosecution alleges that the deceased was killed by the applicant sometime on the night of 11 August 1997.

  5. [The applicant was interviewed several times by police. Following further evidence…

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R v Fesus [2014] NSWSC 770
Case
[2014] NSWSC 770
Decision Date

CaseChat Overview and Summary

The case of R v Fesus involved the applicant, a 41-year-old man, who was charged with the murder of his wife. The applicant had previously been denied bail under the Bail Act 1978 (NSW) but applied again following the enactment of the Bail Act 2013 (NSW). The court was tasked with determining whether the applicant qualified for bail under the new legislative framework, which placed greater emphasis on the presumption of innocence and the right to be at liberty. The key legal issue before the court was whether the applicant presented an unacceptable risk, as defined by the new Act, that would warrant continued detention.

The court examined various factors stipulated by the Act, including the applicant's background, the nature and seriousness of the offence, the strength of the prosecution case, and the likelihood of the applicant failing to appear in court or interfering with witnesses. After considering these factors, the court concluded that, on the balance of probabilities, the applicant did not pose an unacceptable risk. Consequently, the court decided to grant conditional bail to the applicant. The bail conditions included restrictions on communication with potential prosecution witnesses, requirements for regular police reporting, and prohibitions on international travel and the acquisition of new travel documents.

In summary, the court's decision hinged on the new bail legislation, which shifted the focus from the risk of unacceptable conduct to the presumption of innocence. Based on the comprehensive assessment of the applicant's circumstances and the applicable legal criteria, the court determined that conditional bail was appropriate. The specific bail conditions were designed to mitigate any potential risks while allowing the applicant to prepare for his court appearance.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Previous applications for bail were made in this Court on 4 October 2013 and 20 December 2013. Bail was refused, essentially on the ground that the applicant had not established exceptional circumstances justifying a grant of bail, as mandated the Bail Act 1978 (NSW), as it was then in force.Background The applicant, a 41 year old man, is currently charged with murdering his wife. They had met in early 1995 and began to live together as partners from August 1995. The deceased was pregnant when the couple met (that child being born in July 1995) and they had one child together (born in June 1996). Although between February and May 1997 there were problems in the relationship, the pair married in May 1997. Between June and August 1997, the deceased had told a friend about wanting to leave the applicant but did not do so. There was other evidence that the deceased had told the applicant that, if he did not change his attitude, she would leave him and take the children. The two argued and fought at the house of a friend on 11 August 1997 although they left together, the deceased having declined an invitation by the friend to stay the night with her. The deceased spoke on the telephone later that evening with her mother. That was the last contact anyone had with her, so far as the police investigation shows. The body of the deceased was found in the evening of 14 September 1997 in a shallow grave on Seven Mile Beach near Gerroa. Unfortunately by that time, decomposition had the result that an autopsy, conducted by pathologist Mr Paull Botterill on 16 September 1997, was unable to establish the mechanism of death. The prosecution alleges that the deceased was killed by the applicant sometime on the night of 11 August 1997. [The applicant was interviewed several times by police. Following further evidence coming to light the applicant was arrested and charged with the deceased's murder.] This is an application that comes to be made under the amendments recently coming into effect in relation to bail. As mentioned above, bail has previously been refused under different requirements. This test was changed in a very significant way by the new Act, Bail Act 2013 (NSW), and applications which were or would have been refused under the old regime might now have a different outcome as, indeed, was the case here. The legislative scheme If this application was being made for the first time, it would be governed mainly by the following provisions -3 Purpose of Act(1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.(2) A bail authority that makes a bail decision under this Act is to have regard to the presumption of innocence and the general right to be at liberty....17 Requirement to consider unacceptable risk(1) A bail authority must, before making a bail decision, consider whether there are any unacceptable risks.(2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that an accused person, if released from custody, will:(a) fail to appear at any proceedings for the offence, or(b) commit a serious offence, or(c) endanger the safety of victims, individuals or the community, or(d) interfere with witnesses or evidence.(3) A bail authority is to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk:(a) the accused person's background, including criminal history, circumstances and community ties,(b) the nature and seriousness of the offence,(c) the strength of the prosecution case,(d) whether the accused person has a history of violence,(e) whether the accused person has previously committed a serious offence while on bail,(f) whether the accused person has a pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,(g) the length of time the accused person is likely to spend in custody if bail is refused,(h) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,(i) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,(j) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,(k) the need for the accused person to be free to prepare for their appearance in court or to obtain legal advice,(l) the need for the accused person to be free for any other lawful reason.(4) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence (or the seriousness of an offence), but do not limit the matters that can be considered:(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,(b) the likely effect of the offence on any victim and on the community generally,(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.(5) If the person is not in custody, the question of whether there are any unacceptable risks is to be decided as if the person were in custody and could be released as a result of the bail decision.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

[Here is discussed the relevant considerations specified by s 17 of the Bail Act. It would give misleading picture to refer only to some of the factors and to disclose others might have a prejudicial impact on the trial. Accordingly, this passage has been redacted.] Conclusion Viewing the information tendered on the application as a whole, I think that, on the balance of probabilities, the applicant does not present an unacceptable risk of failing to appear at any proceedings for the offence, committing a serious offence, endangering the safety of victims, individuals or the community, or interfering with witnesses or evidence. Accordingly, I propose to grant conditional bail.Bail conditionsHe is to be of good behaviour.He is to reside at XXXXX XXXXX XX.He is to report to the Officer in Charge of the Police Station at Wollongong twice on each day between the hours of 8am and 10am and 5pm and 7pm.He is to appear at Wollongong Local Court on 18 June 2014.He is not to communicate either directly or indirectly, except through his legal advisors, with XXXXX XXXXX XXX or any other person he is informed is or may be called as a Prosecution witness.One acceptable person is to acknowledge in writing that he or she is acquainted with the applicant as a responsible person who is likely to comply with his bail conditions.The applicant is to enter into an agreement without security to forfeit the sum of $1,000 if he fails to comply with his bail conditions.The applicant is not to enter any international point of departure from the Commonwealth of Australia.The applicant is to give an undertaking in writing to the Officer in Charge, Detective Herft, not to apply for any new passport or travel document during the currency of bail.In the event that the applicant breaches any of the conditions of his bail it is automatically revoked and the applicant may be arrested forthwith by any Police Officer.Bail may be entered into before any person authorised in that behalf.Publication At the hearing of the application on 16 June 2014 I ordered that there be no publication of the proceedings or of my reasons. I vary this order to permit publication of the full unredacted judgment to the Attorney-General. As mentioned above, I think it appropriate to vary that order by permitting publication of a redacted copy of these reasons, in the form of the appendix to this judgment.**********

Ratio Decidendi

Legal Principle Established

It follows that the application can be considered and, also, this must be in accordance with the new Act.Consideration of the application [Here is discussed the relevant considerations specified by s 17 of the Bail Act. It would give misleading picture to refer only to some of the factors and to disclose others might have a prejudicial impact on the trial. Accordingly, this passage has been redacted.] Conclusion Viewing the information tendered on the application as a whole, I think that, on the balance of probabilities, the applicant does not present an unacceptable risk of failing to appear at any proceedings for the offence, committing a serious offence, endangering the safety of victims, individuals or the community, or interfering with witnesses or evidence. Accordingly, I propose to grant conditional bail.Bail conditionsHe is to be of good behaviour.He is to reside at XXXXX XXXXX XX.He is to report to the Officer in Charge of the Police Station at Wollongong twice on each day between the hours of 8am and 10am and 5pm and 7pm.He is to appear at Wollongong Local Court on 18 June 2014.He is not to communicate either directly or indirectly, except through his legal advisors, with XXXXX XXXXX XXX or any other person he is informed is or may be called as a Prosecution witness.One acceptable person is to acknowledge in writing that he or she is acquainted with the applicant as a responsible person who is likely to comply with his bail conditions.The applicant is to enter into an agreement without security to forfeit the sum of $1,000 if he fails to comply with his bail conditions.The applicant is not to enter any international point of departure from the Commonwealth of Australia.The applicant is to give an undertaking in writing to the Officer in Charge, Detective Herft, not to apply for any new passport or travel document during the currency of bail.In the event that the applicant breaches any of the conditions of his bail it is automatically revoked and the applicant may be arrested forthwith by any Police Officer.Bail may be entered into before any person authorised in that behalf.Publication At the hearing of the application on 16 June 2014 I ordered that there be no publication of the proceedings or of my reasons. I vary this order to permit publication of the full unredacted judgment to the Attorney-General. As mentioned above, I think it appropriate to vary that order by permitting publication of a redacted copy of these reasons, in the form of the appendix to this judgment.**********