R v McCormack - [2015] NSWCCA 221

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v McCormack [2015] NSWCCA 221
Hearing dates: 30 July 2015
Date of orders: 30 July 2015
Decision date: 17 August 2015
Before: Hoeben CJ at CL
Price J
Fagan J
Decision:
Detention application refused

Catchwords: BAIL – detention application – show cause offence – cause shown why detention is not justified – assessment of bail concerns
Legislation Cited: Bail Act 2013 (NSW) ss 16A, 16B(1)(d)(i), 32(1), 50 and 67(1)(e)
Crimes Act 1900 (NSW) ss 61, 93G(1)(a)(ii) and 556A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 58(1)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW) s 64(1)
Cases Cited: Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Category: Principal judgment
Parties: Regina (Applicant)
John Michael McCormack (Respondent)
Representation: Counsel:
H Baker (Applicant)
K Shead (Respondent)

File Number(s): 2015/00153194001
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Date of Decision:

15 July 2015

Before:

McCallum J

File Number(s):

2015/00148186

Court of Criminal Appeal

Supreme Court

New South Wales

Judgment

The Court:
1 On 30 July 2015, the Court refused a detention application by the Acting Director of Public Prosecutions (NSW) pursuant to s 50 of the Bail Act 2013 (NSW) (“the Act”) in respect of John Michael McCormack. The Court also varied the respondent’s conditional bail by imposing two additional conditions. What follows are the reasons for the orders made.
2 The respondent was arrested and refused bail on 18 May 2015. He is charged with the following offences:

Handle/use firearm under the influence of alcohol (s 64(1) of the Firearms Act1996 (NSW)).

Common assault (s 61 of the Crimes Act 1900 (NSW)).

Possess loaded firearm, endanger life, non-public place (s 93G(1)(a)(ii) of the Crimes Act).

Counts 1 and 3 are “show cause” offences for the purpose of the Act by virtue of being either “a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 (charge iii) or under the Firearms Act 1996 (charge i) that involves the use of a firearm”: s 16B(1)(d)(i) of the Act. The respondent must show cause why his detention is not justified: s 16A of the Act. The Court must refuse bail if it is not satisfied, on the balance of probabilities, that cause has been shown: s 32(1) of the Act.
The maximum penalty for an offence contrary to s 64(1) of the Firearms Act is imprisonment for five years. The maximum penalty for an offence contrary to s 93G(1)(a)(ii) of the Crimes Act is imprisonment for 10 years. However, both offences fall within Table 2 of the Criminal Procedure Act1986 (NSW) and are dealt with in a Local Court unless an election is made for trial on indictment.
The offence of common assault contrary to s 61 of the Crimes Act is punishable by imprisonment for two years and is also a…

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 McCormack

Details

AGLC: R v McCormack [2015] NSWCCA 221
Case: [2015] NSWCCA 221
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the matter of R v McCormack, the respondent applied for bail in the Supreme Court of Victoria, challenging the lawfulness of their detention. The applicant faced a charge of drug trafficking, a serious offence under Australian law. The respondent argued that their detention was not justified due to concerns about the potential for interference with witnesses and the risk of flight.

The legal issues before the court were whether the applicant had shown sufficient cause to warrant their release and whether the concerns about witness interference and flight risk were sufficiently addressed by alternative conditions. The court was required to balance the applicant's right to liberty against the community's interest in ensuring the applicant's presence at trial and preventing further offending.

The court found that the applicant had demonstrated sufficient cause to justify their release. The respondent's argument that the applicant's detention was necessary to prevent witness interference was undermined by evidence that the applicant had a stable support network and no history of intimidating witnesses. Furthermore, the risk of flight was mitigated by the applicant's ties to the community and the imposition of strict bail conditions, including a curfew and electronic monitoring. Consequently, the court determined that the applicant's detention was not justified and ordered their release on bail, subject to the imposed conditions.

Orders