R v Saenz de Heredia - [2017] NSWDC 293

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Saenz de Heredia [2017] NSWDC 293
Hearing dates: 8 August 2017
Date of orders: 09 August 2017
Decision date: 09 August 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
The accused is an unacceptable risk of failing to appear at any proceedings

Catchwords:
BAIL – RELEASE APPLICATION – show cause offence – use of explosive device – cause shown by combination of factors – whether accused is an unacceptable risk – whether immigration detention can be imposed as a condition of bail – accused remains unacceptable risk – release application declined

Legislation Cited:
Bail Act 1978 (NSW)
Bail Act 2013 (NSW) ss 7, 16A(1), 16B(1)(e)(i), 18(1), 19, 20A, 25(1), 28 and 29(1)
Evidence Act 1995 (NSW) ss 128 and 165
Migration Act 1958 (Cth)

Cases Cited:
Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
Islam v R [2014] ACTCA 2
Minister for Immigration and Multicultural Affairs v Dhingra [2000] FCA 406
Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314
Parhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240
R v Farrell [2016] NSWSC 1278
R v Xie [2015] NSWSC 1833
R v Dadash [2012] NSWSC 1511

Category: Procedural and other rulings
Parties: Regina (Crown)
Mr Roberto Saenz de Heredia (Accused)
Representation:
Counsel:
Ms V Lydiard (Crown)
Ms G Lewar (Accused)
Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
Alexander Maroulis Lawyers (Accused)

File Number(s): 2016/147902
Publication restriction: Decision restricted pending the trial of the accused.

Judgment

The accused, Roberto Saenz De Heredia, applies for release to bail having been indicted to stand trial in relation to an offence that on 15 June 1998, at Belrose in the State of New South Wales, he did cause grievous bodily harm to Brett John Boyd with intent to murder the said Brett John Boyd. The accused is currently awaiting a second trial listed to commence on 14 May 2018, an estimate of four weeks.

BACKGROUND

The background to the matter is as follows: Brett Boyd, a friend and former colleague of the accused, picked up a package left in the garage of his house in Belrose. That package was an explosive device designed to look like a parcel. It exploded in his hands with the consequence that he sustained serious injures including the loss of an eye and a thumb.
It appears that following this event an extensive police investigation was conducted. On 14 September 1998, the victim, Mr Boyd, brought Mr Stolzenhein to the police station. Police interviewed him. Mr Stolzenhein implicated the accused and denied any involvement in the crime. He stated that the accused spoke to him a couple of times about killing the victim by planting a bomb because he was owed some money.
The night after the bombing he stated the accused called him to ask him to call the victim to find where he was. The informant is said to have called the victim, spoken with him and called…

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 Saenz de Heredia

Details

AGLC: R v Saenz de Heredia [2017] NSWDC 293
Case: [2017] NSWDC 293
Decision Date: 09 August 2017

CaseChat Overview and Summary

The case before the court involved an application for bail by the accused, Saenz de Heredia, who was facing charges relating to the use of an explosive device. The matter was heard in a relevant Australian court, where the accused sought to be released on bail pending trial. The prosecution opposed the application, arguing that the accused posed an unacceptable risk to the community and was likely to fail to appear at future court hearings.

The central legal issue before the court was whether the accused could be released on bail. This involved determining whether the accused represented an unacceptable risk to the community, considering the nature of the offence and other relevant factors. Another significant issue was whether conditions could be imposed on the accused's bail to mitigate any risks, including the possibility of imposing immigration detention as a condition of bail.

In delivering its decision, the court considered the severity of the offence, the accused's history, and other factors that might indicate a risk to the community. The court noted that the use of an explosive device was a serious offence that demonstrated a potential for violence and harm. Furthermore, the court found that the accused's failure to comply with immigration laws added to the risk of reoffending. The court held that the combination of these factors demonstrated that the accused was an unacceptable risk of failing to appear at any future proceedings. As a result, the court declined the accused's application for bail and concluded that the accused remained an unacceptable risk.

No orders were made for the release of the accused on bail. The court's decision was grounded in the need to protect the community from potential harm and to ensure that the accused would attend any future court hearings.

Orders

Orders of the court

The accused is an unacceptable risk of failing to appear at any proceedings

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Saenz de Heredia [2017] NSWDC 293
Hearing dates:	8 August 2017
Date of orders:	09 August 2017
Decision date:	09 August 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The accused is an unacceptable risk of failing to appear at any proceedings
Catchwords:	BAIL – RELEASE APPLICATION – show cause offence – use of explosive device – cause shown by combination of factors – whether accused is an unacceptable risk – whether immigration detention can be imposed as a condition of bail – accused remains unacceptable risk – release application declined
Legislation Cited:	Bail Act 1978 (NSW) Bail Act 2013 (NSW) ss 7, 16A(1), 16B(1)(e)(i), 18(1), 19, 20A, 25(1), 28 and 29(1) Evidence Act 1995 (NSW) ss 128 and 165 Migration Act 1958 (Cth)
Cases Cited:	Director of Public Prosecutions v Hourigan [2017] NSWCCA 170 Islam v R [2014] ACTCA 2 Minister for Immigration and Multicultural Affairs v Dhingra [2000] FCA 406 Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 Parhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240 R v Farrell [2016] NSWSC 1278 R v Xie [2015] NSWSC 1833 R v Dadash [2012] NSWSC 1511
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mr Roberto Saenz de Heredia (Accused)
Representation:	Counsel: Ms V Lydiard (Crown) Ms G Lewar (Accused) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Alexander Maroulis Lawyers (Accused)
File Number(s):	2016/147902
Publication restriction:	Decision restricted pending the trial of the accused.