R v Haz

[2018] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation:	R v HAZ [2018] NSWSC 386
Hearing dates:	15 March 2018
Date of orders:	28 March 2018
Decision date:	28 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Application dismissed
Catchwords:	CRIME – bail – release application – where previous application refused by the Court – consideration of Bail Act 2013 s 74 – alleged change of circumstances relevant to the grant of bail – Court not satisfied on balance of probabilities that new material was available or that relevant circumstances had changed – application dismissed
Legislation Cited:	Bail Act 2013 Crimes Act 1900
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Crown HAZ (a pseudonym) (Applicant)
Representation:	Counsel: J Rafeeq (Crown) G James QC (Applicant)   Solicitors: Director of Public Prosecutions (Crown) Abbas & Co (Applicant)
File Number(s):	2018/30102
Publication restriction:	Not applicable

Judgment

1. On 8 August 2017, the applicant, to whom I will refer as to “HAZ”, was arrested and charged with two offences. He was taken into custody at that time.

2. Those offences were:

1. an offence contrary to s 98 of the Crimes Act 1900 of robbery in company causing a wounding, which carries a maximum penalty of 25 years imprisonment; and

2. an offence contrary to s 33(1)(a) of the Crimes Act 1900 of wounding a person with intent to cause grievous bodily harm, which also carries a maximum penalty of 25 years imprisonment.

3. On 5 October 2017, the applicant made a release application which was heard and determined by Adamson J in this Court. Her Honour refused the application, and expressed this conclusion in her judgment:

“Having regard to the matters raised in the Crown case and notwithstanding that there will be a significant delay in bringing the applicant to trial, I am not satisfied that a grant of bail, even on the strict conditions proposed on behalf of the applicant, would be sufficient to ameliorate the risk of his committing a serious offence and the risk of danger to the victim and individuals in the community if bail was granted …”

4. On 15 January 2018, HAZ made a further application to this Court pursuant to s 8 of the Bail Act 2013 (“the Act”) to be released on bail. That application was heard on 15 March 2018. This judgment relates to that second application.

Second Application

5. Because the applicant is making a second application to this Court for bail after initially being refused bail, the provisions of s 74 of the Act apply.

6. Section 74 is in the following terms:

“74 MULTIPLE RELEASE OR DETENTION APPLICATIONS TO SAME COURT NOT PERMITTED

(1)    A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.

(2)    ...

(3)    For the purposes of this section, the grounds for a further release application are:

(a)    the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b)    material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c)    circumstances relevant to the grant of bail have changed since the previous application was made, or

(d)    the person is a child and the previous application was made on a first appearance for the offence.

(4)    ...

(5)    In this section,

‘court’ does not include an authorised justice.”

7. It is to be observed that this Court is commanded by the legislation to refuse to hear this application unless it is satisfied that there are grounds for a further release application.

8. Accordingly, it is convenient to start with the question of whether the applicant can satisfy the Court, on the balance of probabilities, that new material information is available or else that relevant circumstances have changed.

Changed Relevant Circumstances

9. The applicant submitted that circumstances relevant to the grant of bail had changed since the previous application was made in the following respects:

1. a significantly different set of conditions were being proposed for bail;

2. the likely date for trial had been further delayed;

3. the strength of the Crown case and the material which implicated the applicant had not improved as might have been expected; and

4. since the applicant had been in custody, after the first application was determined, there had been no material provided to this Court by the prosecution to suggest that he had engaged in any conduct which would suggest that he was likely to commit a serious crime if released.

10. It is appropriate to examine each of these matters. First, it was submitted that the proposed conditions of bail have significantly altered because of two factors. The first is that the monetary security being offered by the applicant’s parents, namely $500,000, being the equity in their home, is significantly greater than was previously offered. It is not entirely clear from the judgment of Adamson J precisely what security sum was originally offered. Senior counsel did not know. Her Honour recorded that the applicant’s parents offered a charge over their property. They do so again. Her Honour noted that such an offer was irrelevant to her decision because the Crown did not raise any bail concern about the applicant failing to appear. An order for security as a condition of bail is directed at ensuring that an applicant appears when the matter comes before the Court.

11. The Crown did not raise any bail concern about a failure to appear. Whether or not the sum being offered by the applicant’s parents is increased from that offered at the first application, is wholly irrelevant. It does not constitute a change of relevant circumstances.

12. The second matter relied upon as constituting a change of relevant circumstances, and seemingly also as new material presented to the Court, is the offer by the applicant to wear an electronic monitoring device (“the device”), and to fund the cost of it and any monitoring of it. To this end, the applicant relies upon an affidavit of Ms Laura Windsor sworn 8 March 2018.

13. Ms Windsor is an executive of Attenti Australia Pty Ltd, which is part of a larger worldwide group.

14. Attenti has the capacity to provide a device which is installed on an individual and which is then capable of transmitting data about a person’s location to Attenti which in turn, through an automatic system, provides information to a designated police officer. The device can be configured so as to specify “inclusion zones” being areas the monitored person must remain in. These inclusion zones can be scheduled for curfews when required. As well Attenti can set exclusion zones into which a person is prohibited to travel by their bail conditions such as international points of departure.

15. As well, various alerts are generated relating to the correct operation of the equipment or when a violation of fixed rules or parameters of an individual’s device occurs.

16. When a violation event occurs, the device will respond by notifying Attenti’s central monitoring system of the violation. That system automatically transmits an SMS or email to the designated police officer. The type of violation events which commonly occur and which give rise to a notification are:

1. tampering with the equipment;

2. breaking a curfew fixed by the bail conditions;

3. moving out of an inclusion zone; or

4. moving into an exclusion zone.

17. Once an alert is despatched to the designated police officer, it becomes a matter for that officer to determine what, if any, response is required. If a response is required, it is matter for the officer to find available resources and deploy them as appropriate.

18. As well, after the event, the designated police officer receives a report recording the movements and compliance with bail conditions of the individual concerned. That report is generally provided each business day and covers either a 24 hour period, or a longer period when a weekend or public holiday intervenes.

19. Ms Windsor informed the Court that, in the course of Attenti’s operations, they had not had an occasion where a client had failed to appear in court when required. As has earlier been remarked, there is no bail concern expressed that HAZ is unlikely to appear in Court when required to do so.

20. Senior counsel for the applicant submitted that the fact that the applicant would be wearing a device, provides a significant deterrent to the commission of any serious offence because the whereabouts of the device will be known by virtue of the regular 24 hourly report to the designated police officer, and the fact that such geographic location could be related to the location of a particular crime at a particular time. As well, because the device alerts the designated police officer to any violation of a curfew requirement, the likelihood of the commission of further crimes, at least during that period, is mitigated.

21. It is in that way, the applicant submits, that there has been a change of relevant circumstances - namely, that the wearing of a device will tend to diminish or mitigate against the commission of a further serious offence.

22. I am not satisfied that this is so. Whilst, undoubtedly, the fact that a person is wearing a device will remind them of their geographic and curfew conditions, I am wholly unpersuaded that it would have any effect upon the commission of any further serious offence other than, perhaps, during a curfew period which they might be tempted to break.

23. The significance here, as Adamson J found, of the risk of the applicant committing further serious offences, relates to the strength of the Crown case. Her Honour was unpersuaded that the Crown case was, as alleged by the applicant, weak. Secondly, as her Honour found, the risk of the applicant committing further serious offences was heightened by the nature and seriousness of the charges with which the applicant is confronted. The offer of a device being worn at all times, in my view, is not a change of circumstances which can be categorised as relevant to the grant of bail.

24. The second change of circumstance relevant to the grant of bail upon which the applicant relied was that the likely future trial date had changed from the estimate given when the first bail application was heard and determined.

25. On the first bail application, Adamson J concluded that there would be a significant delay in obtaining a trial and that it appeared that any trial would not take place until August or September 2018. On its face, this was a prediction necessarily beset by uncertainty.

26. The matter presently remains in the Local Court and is next before that Court on 2 May 2018. If committal takes place, it is likely that the applicant will be committed to the District Court by the end of June 2018. It can be expected that he would face a joint trial with the other co-accused whom the Crown alleges were present at the time of this crime and participated in it.

27. Senior counsel submitted that the Court would form the view that it would be unlikely that the applicant would receive a date for trial before the middle of 2019 at the earliest.

28. No material was provided by way of the result of any enquiry from the District Court listing authorities as to the current delay. No basis was provided for the bald assertion or, what senior counsel described as “… what is generally the listing experience of joint trials in the District Court in Sydney on the present existing resources”. The applicant’s solicitor did not provide an affidavit or other material relying upon recent experience to estimate the likely trial date.

29. Whilst I accept that it is unlikely that if the applicant is first committed at or about the end of June 2018, he will receive a trial this year in the District Court of NSW, I do not accept, without any further material, the submission of senior counsel for the applicant as to the likely future date of a trial.

30. During the first application, a date for trial was predicted, but as Adamson J said, there would be a significant delay. There is no reason to think that a future delay is, of itself and without more, and in the absence of much more significant material about the length of that delay, a change of relevant circumstances.

31. The third matter relied upon as a relevant change in circumstances is elusive. Senior counsel seemed to suggest that as a matter of practice, or else common experience, it would be anticipated that the Statement of Facts relied upon by the prosecution would be improved, in relation to the strength of the Crown case, when the police brief is actually served. He argued that because no additional material had been served which was demonstrative of the applicant being involved in the offence, this Court should take the view that the strength of the Crown case had been thereby diminished.

32. This was a very general submission which did not descend to any particular detail. I do not accept the assumption upon which this submission relies. Once a Crown brief is served it may or may not strengthen the initial police views. For example, DNA testing returned in the form of a scientific expert certificate may increase the strength of the Crown case. On the other hand, further investigations undertaken by police may throw some doubt on the Crown case, of joint criminal enterprise with respect to the participation of the applicant in that enterprise. However, the submission is put at such a broad level of generality that I am simply unable to conclude that, of itself and without more, it shows that there has been a relevant change in circumstances.

33. The fourth and final matter relied upon is that there is no evidence that the applicant whilst in custody has attempted to commit any further offences by contacting his co-accused or anyone else in an attempt to interfere with witnesses or the victim of the offence. It is certainly correct that the Crown has not put forward any material of that kind. The applicant submitted that because he has access to a telephone from the correctional centre, he would have been able had he chosen to do so, to engage in such conduct. He therefore submitted that the fact that he chose not to do so demonstrate that it would be unlikely that he would do so if released on bail.

34. Any contact via the telephone from a correctional centre to any number is monitored and recorded. At the start of any such phone call an announcement to that effect is made. The announcement includes inviting the recipient of the phone call to hang up if they do not wish to have their conversation recorded. The recorded message can be heard by both participants in the conversation.

35. Whilst it is not unknown that recordings of conversations from correctional centres to external numbers do provide evidence in support of one or more criminal charges, the mere fact that in this case that has not occurred, does not seem to me to be a relevant circumstance of a kind to which s 74 refers.

36. Given that the applicant is in custody, one would not expect him to be engaging in arranging for the commission of external serious crimes or, alternatively, arranging over the telephone for witnesses or victims to be interfered with.

37. In those circumstances, I do not regard this as a change of circumstance relevant to the grant of bail.

38. It seemed from senior counsel’s submissions, although it was not entirely clear, that the applicant also relied upon some, or perhaps all, of these matters as amounting to material information relevant to the grant of bail that was not available to be presented at the first bail application.

39. To the extent that he did rely upon each of these matters, I would come to no different conclusion. Simply put, new information has to be material to the grant of bail. That is to say that, on the probabilities, it would impact upon the decision of the Court to grant bail. None of this material falls into that category.

40. It follows that the applicant has not established any changed circumstances relevant to the grant of bail, nor has he established that there is any new material information. In those circumstances, the legislation requires that the application not be heard. It must be dismissed.

Orders

41. The application is dismissed.

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Decision last updated: 28 March 2018