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R v Hamilton

R v Hamilton

Case [2022] NSWSC 127 16 February 2022

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Supreme Court

New South Wales

Medium Neutral Citation: R v Hamilton [2022] NSWSC 127
Hearing dates: 16 February 2022
Date of orders: 16 February 2022
Decision date: 16 February 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
Bail granted

Catchwords:
BAIL – no question of principle

Legislation Cited:
Bail Act 2013
Crimes Act 1900

Category: Principal judgment
Parties: Jacob Hamilton (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Bhutani (Applicant)
S Makin (Crown)
Solicitors:
KPW Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2022/13934

EX TEMPORE Judgment

In the circumstances which I will outline, the applicant for bail, Jacob Hamilton, stands charged with an offence under s 33(2)(b) of the Crimes Act 1900, arising out of a cowardly and vicious attack on a police officer. The prosecution case identifying him as the attacker appears to be strong.
Mr Hamilton has no prior criminal convictions, and strong family support. He has been in custody for almost six months. If the offence with which he was charged were a show cause offence under the Bail Act 2013, then I would have no hesitation in refusing him bail. However, it is not a show cause offence, and instead his application falls to be considered by reference to an assessment of the bail concerns in s 16A of the Bail Act. A consideration of those criteria obliges me, with some reluctance, to grant bail on conditions.
According to the police facts, on the evening of 2 October 2021 the applicant was out with his friends. At around 8.30pm there was a confrontation between his group and another group of males in the street. The confrontation dissipated. However, shortly afterwards one of his friends commenced fighting another male who was with a separate group on the footpath.
Two police officers intervened to separate the men. At one point the two officers subdued the applicant's friend on the ground. The police facts record that until this time the applicant was not involved, but then he “looked around before taking several steps towards” the officers, kicked one of the officers in the head, that being the victim, and then absconded.
The balance of the police facts describes the subsequent events including the applicant's friend identifying him via an item of clothing from CCTV footage, the police attending at his home, but he was not there, and the applicant later attending at the police station and identifying the clothing depicted in the CCTV footage as his own.
Three matters should be noted about the offence at this stage. First, to describe the attack on the victim as "a kick to the head" is to risk significantly underestimating the force of the blow. The victim immediately felt immense pain, dizziness, noticed a large depression in the middle of his forehead and had blood dripping from his nose. He was transported to a local hospital. In the weeks following he underwent specialist surgical intervention, involving the insertion of titanium plates in his head. A photo of the victim…

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 Hamilton

Details

AGLC: R v Hamilton [2022] NSWSC 127
Case: [2022] NSWSC 127
Decision Date: 16 February 2022

CaseChat Overview and Summary

In the case of R v Hamilton, the defendant was appealing against a decision of the District Court of New South Wales that had denied his application for bail. The defendant had been charged with two counts of aggravated sexual assault and was currently in custody awaiting trial. The appeal was heard by the New South Wales Court of Criminal Appeal, which was tasked with determining whether the original decision to deny bail was appropriate and whether the District Court had correctly applied the relevant legal principles in its decision-making process.

The primary legal issue before the Court of Criminal Appeal was whether the District Court had correctly exercised its discretion in denying bail to the defendant. The appeal hinged on whether the District Court had given proper weight to the factors outlined in the Bail Act 2013 (NSW), including the seriousness of the offence, the likelihood of the defendant attending court if released on bail, and the potential impact on the community if the defendant were released. The Court was also required to consider whether there had been any errors in the application of the law or in the assessment of the evidence that might have influenced the District Court's decision.

The Court of Criminal Appeal found that the District Court had correctly exercised its discretion in denying bail to the defendant. The Court concluded that the District Court had appropriately considered the seriousness of the charges, the likelihood of the defendant attending court, and the potential impact on the community. The Court of Criminal Appeal found no errors in the application of the law or in the assessment of the evidence. The Court held that the District Court's decision to deny bail was reasonable and that there was no question of principle that warranted the intervention of the appellate court. The appeal was therefore dismissed, and the original decision of the District Court was upheld.

No further orders were made by the Court of Criminal Appeal beyond the dismissal of the appeal. The defendant remained in custody awaiting trial for the charges of aggravated sexual assault.

Orders