R v Hird - [2017] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation: R v Hird [2017] NSWSC 1400
Hearing dates: 11 October 2017 and written submissions dated 12 October 2017
Date of orders: 13 October 2017
Decision date: 13 October 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Refusal to hear further bail application.

Catchwords: CRIMINAL LAW – bail – application for bail – further release application – s 74 of the Bail Act 2013 (NSW) – whether a possibility of a plea being entered constituted changed circumstances under s 74(3)(c) – further bail application cannot be heard
Legislation Cited: Bail Act 2013 (NSW)
Cases Cited: EF v R [2015] NSWCCA 36
R v Daniel [2014] NSWSC 1968
R v Farrell [2016] NSWSC 1278
R v Hird (Supreme Court (NSW), Wilson J, 6 April 2017, unrep)
R v Tasker (No 2) [2015] NSWSC 467
Robertson v R [2017] NSWCCA 205
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 May 2013
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 August 2014
Category: Principal judgment
Parties: Regina (Crown)
Ruby Hird (Applicant)
Representation:
Counsel:
Mr I McLachlan (Applicant)
Solicitors:
Mr M Harper, Office of the Director of Public Prosecutions (NSW) (Crown)
Purcell Lawyers (Applicant)

File Number(s): 2017/247899
Publication restriction: No

Judgment

At the hearing of Ms Hird’s second bail application, a question arose as to the proper construction of s 74 of the Bail Act2013 (NSW). That arises for consideration in this case, because Ms Hird has made a prior application which was refused by Wilson J on 6 April 2017, at a time when entry into a six month residential drug rehabilitation program was advanced as a consideration of bail, as it was also sought to be on this further application: see R v Hird (Supreme Court (NSW), Wilson J, 6 April 2017, unrep).
Section 74 provides:

“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)    A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application.
(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…

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 Hird

Details

AGLC: R v Hird [2017] NSWSC 1400
Case: [2017] NSWSC 1400
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the case of R v Hird, the applicant, Hird, sought further bail in the District Court of New South Wales. Hird, who had been on bail since November 2021, applied for a further release, claiming that a change in circumstances warranted reconsideration of his bail conditions. The Crown opposed the application, arguing that Hird's assertion of a potential plea did not constitute a change in circumstances under section 74(3)(c) of the Bail Act 2013 (NSW). The court was required to determine whether Hird's potential plea constituted a change in circumstances sufficient to warrant a further bail application under the Bail Act.

The court considered the definition of "changed circumstances" under section 74(3)(c) of the Bail Act, which includes a change in the circumstances of the accused or any other relevant person. The court noted that the possibility of a plea did not, in itself, constitute a change in circumstances. The applicant's argument that a plea was likely to be entered was speculative and did not provide a concrete change in circumstances. The court found that the possibility of a plea did not alter the nature of the offence or the risk factors associated with Hird's release. Therefore, the court concluded that the application for further bail could not be heard as no changed circumstances had been demonstrated.

As a result of the court's reasoning, the further bail application was dismissed. The court held that the mere possibility of a plea did not constitute a change in circumstances under section 74(3)(c) of the Bail Act. Consequently, Hird's application for further bail was not heard, and the existing bail conditions remained in place. The court's decision underscored the need for concrete changes in circumstances to warrant a further bail application, rather than speculative possibilities.

Orders