Hoeben CJ at CL at [1] R A Hulme J at [39] RS Hulme AJ at [40]
Decision:
Crown’s application for Detention Order is refused.
Catchwords:
CRIMINAL LAW – Detention Application under Bail Act 2013 – offences of aggravated sexual assault – consideration of bail concerns under Act – assessment of whether unacceptable risk unless Detention Application granted – no bail concerns that cannot be met by conditions – Detention Application refused.
Counsel: NJ Adams – Applicant Crown R Rodger - Respondent Solicitors: Solicitor for Public Prosecutions – Applicant Crown SE O’Connor – Legal Aid NSW - Respondent
File Number(s):
2014/370037
Decision under appeal
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Bail
Date of Decision:
02 February 2015
Before:
Davies J
File Number(s):
2014/370037
Judgment
HOEBEN CJ at CL:
Nature of application
A Release Application was heard in the Supreme Court on 2 February 2015 in relation to the respondent. Davies J granted conditional bail on that occasion.
The bail conditions imposed were:
That the accused enter into an agreement to observe the following specified requirements as to conduct while at liberty on bail:
To be of good behaviour.
To report to the Blacktown Police Station once daily between 8am and 6pm on Monday, Wednesday and Saturday.
Not to apply for any new passport or travel document.
To live at xxxxx with Aboulgasim Yagoub.
Not to associate or communicate by any means with the victim of the offences charged.
Not to travel to Liverpool, except for the purpose of attending court or seeing his lawyers.
Not to have any contact in any way (including via a third party) with his brother, Hussein Kugor, TE and FA.
To appear at Campbelltown Local Court on 11 February 2015 and thereafter as required.
To comply with a curfew: The applicant is not to be absent from the address at which he is required to live between the hours of 8pm and 6am.
That one acceptable person deposit the sum of $5,000 in total in cash and enter into a bail security agreement or agreements to forfeit the amount if that person fails to comply with the bail acknowledgment. An acceptable person is the applicant’s father, Abdel Rahman Kurtikaila.
The Crown brought a Detention Application (the application) pursuant to s50 of the Bail Act 2013 (the Act). That application was opposed by the respondent and was heard by the Court on 18 February 2015. The Court refused the Detention Application and advised that it would provide reasons in due course. These are the reasons.
It was common ground that the application before the Court was to be heard de novo.
The Crown case
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.
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AGLC
R v Kugor [2015] NSWCCA 14
Case
[2015] NSWCCA 14
Decision Date
CaseChat Overview and Summary
The matter of R v Kugor involved the defendant facing charges of aggravated sexual assault. The case was heard in a relevant court, where the primary focus was on the application for bail under the Bail Act 2013. The court had to determine whether the defendant should be granted bail or if it would be appropriate to keep him in detention pending the outcome of his trial.
The legal issues before the court were whether the defendant posed any unacceptable risk to the community or to any person if he were to be released on bail, and if so, whether this risk could be mitigated by imposing certain bail conditions. The court had to consider the nature of the offences, the circumstances in which they were committed, and any relevant history of the defendant in making this assessment.
The court found that while the charges were serious, there were no specific concerns regarding bail that could not be addressed by appropriate conditions. The court considered factors such as the defendant's history, the potential impact of his release on the community, and the likelihood of him attending court if granted bail. Ultimately, the court determined that the risk could be sufficiently managed through the imposition of strict bail conditions. As a result, the application for detention was refused, and the defendant was granted bail.
The final orders of the court included the granting of bail to the defendant, subject to a number of conditions designed to ensure that any risk to the community or to any person was minimised. These conditions likely included requirements for the defendant to reside at a specified address, to surrender his passport, to observe a curfew, and to refrain from contacting certain individuals. The court's decision emphasised the importance of balancing the defendant's right to liberty with the need to protect the public.