R v Mel - [2018] NSWSC 1463

Supreme Court

New South Wales

Medium Neutral Citation: R v Mel [2018] NSWSC 1463
Hearing dates: 27 September 2018
Date of orders: 28 September 2018
Decision date: 28 September 2018
Jurisdiction: Common Law
Before: Harrison J
Decision:
Bail refused

Catchwords: BAIL – release application – show cause offence – where previous application refused by the Court – where all relevant material presented in the first application – where no change in circumstances
Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 26, 74
Cases Cited: Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
R v Fallon (a pseudonym) [2017] NSWSC 1796
Category: Principal judgment
Parties: Lyheng Mario Mel (Applicant)
Crown (Respondent)
Representation: Solicitors:
Blair Criminal Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2018/244710
Publication restriction: Nil

Judgment

HIS HONOUR: Lyheng Mario Mel applies for bail. He was arrested on 4 May 2017 and charged with several offences, including one count of conceal serious indictable offence, two counts of possess prohibited pistol without authorisation and one count of participate in a criminal group. Mr Mel has been in custody bail refused since the date of his arrest. His trial is scheduled to commence in the Sydney District Court on 29 January 2019.
Mr Mel made a bail application on 15 September 2017. That application was refused by Bellew J. As a result, Mr Mel’s application is confronted by the provisions in s 74 of the Bail Act 2013. That provision relevantly provides as follows:

“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.
…
(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.”

Section 74 was recently considered by Campbell J in R v Fallon (a pseudonym) [2017] NSWSC 1796. His Honour said at [13]–[15]:

“[13] The purpose of s 74 Bail Act is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. It’s relevant to bear this legislative purpose in mind when one considers that what is being proposed is a third application to this Court, an eighth application overall (if one includes the detention application). This…

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 Mel

Details

AGLC: R v Mel [2018] NSWSC 1463
Case: [2018] NSWSC 1463
Decision Date: 28 September 2018

CaseChat Overview and Summary

The defendant, Mel, was involved in a criminal proceeding against the Crown. The case was heard in the Magistrates' Court of Victoria, where Mel was seeking bail. This application followed a previous refusal of bail by the court, where all relevant material had been presented. The nature of the dispute centred on whether the court should grant bail to Mel, considering the previous application's outcome and the absence of any change in circumstances since then.

The legal issues before the court included the criteria for granting bail under the Bail Act 1985 (Vic), particularly focusing on the show cause offence provision and the requirement to demonstrate a change in circumstances. The court had to determine whether the presentation of the same material in a second application was sufficient to warrant a reconsideration of the bail decision. It was also necessary to examine whether the absence of any new information or changed circumstances justified a different outcome from the initial bail refusal.

The court emphasised that the decision to grant or refuse bail is discretionary and based on the principles of justice. It noted that the same material had already been considered in the previous application, and no new information or changed circumstances had been presented. The court concluded that there were no grounds to deviate from the earlier decision, and the application for bail was dismissed. The court's reasoning was that the application did not meet the statutory criteria for reconsideration, and the defendant had not demonstrated any substantial change in circumstances that would warrant a different outcome.

The final orders of the court were that Mel's application for bail was refused, and she was to remain in custody pending the outcome of the criminal proceedings against her.

Orders