R v Sparos

[2023] NSWSC 833

Supreme Court

New South Wales

Medium Neutral Citation:

R v Sparos [2023] NSWSC 833

Hearing dates:

11 July 2023

Date of orders:

17 July 2023

Decision date:

17 July 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1)   Refuse the applicant’s application for variation of his conditional bail.

(2)   Vary the references in condition 5 of the applicant’s current bail conditions from Detective Matthews to Detective Inspector Schleising.

Catchwords:

BAIL - conditional bail previously granted – variation application – application refused

Legislation Cited:

Bail Act 2013 (NSW)

Crimes Act 1900 (NSW)

Category:

Principal judgment

Parties:

Rex (Crown)
Luke Sparos (defendant)

Representation:

Counsel:
E Blizard (Crown)
D Edwardson KC (defendant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
MacDougall & Hydes Lawyers (defendant)

File Number(s):

2023/180301 & 2023/216981

Publication restriction:

Non-publication orders made

JUDGMENT

1. HIS HONOUR: On 7 September 2022, Harrison J granted Luke Sparos (‘the applicant’) conditional bail – of some stringency. On 3 March 2023 the applicant’s bail conditions were varied by Ierace J, following an application brought by the Crown, which placed further restrictions on the applicant.

2. The applicant seeks to vary the bail conditions (essentially, the residency and curfew conditions). The Crown opposes the variations sought. The Crown also applies to vary, in a limited way, those bail conditions. The applicant opposes that variation.

Background

3. On 5 May 2021 the applicant was arrested by police and charged with two offences: first, the offence of shoot with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW); and, secondly, doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act.

4. The first offence arises out of the shooting of Samir Marcus on 6 November 2020. The second offence arises out of the applicant, following his arrest in connection with the first offence, destroying his mobile telephone: the allegation is that when the applicant was at the Surry Hills Police Station following his arrest, he grabbed the mobile telephone that had been seized, threw it to the ground and stomped on it, breaking it in half.

5. Following his arrest, the applicant was refused bail. On 25 November 2021 the applicant sought, but was refused, conditional bail by Dhanji J. On 7 September 2022 Harrison J granted the applicant conditional bail. On 3 March 2023 the applicant’s bail conditions were varied by Ierace J following an application brought by the Crown.

6. The applicant’s current bail conditions are as follows:

1. He is to be of good behaviour.

2. He is to live at XXX XXXX XXXX, XXXXX XXXX, NSW, XXXX with Mr Leo Lewin.

3. On release from custody he is to travel by the most direct route to the above address and is only to be released into the custody of Mr Leo Lewin.

4. He is to report to Miranda Police Station once daily between 6am and 6pm.

5. He must not leave the above premises at all, except for the following reasons:

• Reporting to police as directed by the Court;

• To arrange pre-arranged appointments with his legal representatives between the hours of 9am and 6pm, with 24 hours’ written notice to Detective Matthews;

• Attending court;

• Attending to medical emergencies;

• In the company of Leo Lewin, with 24 hours’ written notice of destination, time and duration of the proposed trip to Detective Matthews;

• The applicant is permitted to attend pre-arranged medical and dental appointments, by the most direct route to and from his place of residence, upon the Officer in Charge being provided 24 hours’ notice via email.

6. He is not to take any illicit drugs or any prescription drugs unless lawfully prescribed to him.

7. He must not contact, directly or indirectly (except through his lawyers) any person who the police have told him are prosecution witnesses or who could be prosecution witnesses. This includes any direct or indirect contact in person, via telephone or any social media platform.

8. He is to wear a personal electronic monitoring (GPS) tracking device at his own expense. If he is called upon to do so, he must subject himself to the appropriate law enforcement authorities to examine and verify the GPS tracking device.

9. He is to not to leave New South Wales.

10. He is not to apply for a passport or other travel document.

11. He is to present himself at the front door of the above premises at the direction of a police officer to confirm compliance with the curfew condition.

12. He must only possess one mobile phone and the following information is to be provided to the officer in charge within 24 hours of obtaining a mobile phone:

(a) The phone number;

(b) The IMEI number of the handset being used;

(c) The network provider for the mobile phone number.

13. He is not to be in possession of an encrypted phone such as a Blackberry or Cipher phone.

14. One acceptable person, namely Leo Lewin, is to enter into an agreement to forfeit $2,000,000 with security against the property at XXX XXXX XXXX, XXXX XXXX, NSW, XXXX if he fails to appear before the Court in accordance with the bail acknowledgment.

15. One acceptable person, namely, Elly Greenfield, is to enter into an agreement to forfeit $100,000 with or without deposit if he fails to appear before the Court in accordance with the bail acknowledgment.

7. In relation to these conditions, all conditions were as ordered by Harrison J – except condition 5 which was in the form ordered by Ierace J.

8. In the terms ordered by Harrison J, condition 5 was:

5.   He must not leave the above premises at all, except for the following reasons:

(a) Reporting to police as directed by the Court;

(b) To attend pre-arranged appointments with his legal representatives between the hours of 9am and 6pm;

(c) Attending court;

(d) Attending to medical emergencies;

(e) In the company of Leo Lewin.

9. It is, thus, apparent that Ierace J tightened the restrictions around the applicant’s movements by the variations made to condition 5 – and significantly so.

10. Since the orders made by Ierace J on 3 March 2023, there was a further development. The applicant’s trial, which was scheduled to commence in May 2023, was vacated – essentially on two grounds: being the unavailability of the Officer in Charge (‘OIC’) for the trial due to medical reasons and issues with disclosure by the Crown.

The conditions: the proposed variations

11. The applicant seeks to vary, or to revoke, five of his bail conditions – being the following:

1. The removal of electronic monitoring. This involves the revocation of condition 8.

2. The applicant be allowed to reside at XXXX XXXX XXXX, XXXX NSW. This involves variations to condition 2 and condition 5.

3. His reporting station to be amended to the closest Police Station to his new residence. This follows on from the variations sought to conditions 2 and 5, and involves a variation to condition 4.

4. Removal of the condition preventing him from leaving his home unaccompanied. This involves a variation to condition 5.

5. A curfew to be imposed from 10pm to 5am unless in the company of Leo Lewin, Aristofanis Sparos or Josianna El-Areiji. This involves a variation to condition 5.

12. During the course of submissions, the applicant advanced a “fall-back” argument: that if the Court was minded to vary the residence and curfew conditions so as to permit the change in residency and to permit him to leave that address for the purposes of the proposed employment, then the applicant accepted, if the Court thought it desirable, to continue with electronic monitoring. Otherwise, the variations were argued on an “all or nothing” basis.

13. The applicant advances three bases to vary the bail conditions as proposed – being, first, the vacation of the trial and significant delay through no fault of the applicant; secondly, demonstrated reduced bail risk as evidenced by the period of time the applicant has been on bail; and, thirdly, significant weakening of the Crown case insofar as there is emerging evidence that the applicant was not “the shooter” and the failure of the prosecution to eliminate the reasonable possibility that another or others were responsible for the shooting (applicant’s submissions at [3]). (The third submission was later refined to a point – or supplemented – by later submissions, to the effect that there were issues of non-disclosure that undermined the Crown case). These matters were said to demonstrate a change in circumstances that warranted varying the bail conditions in the manner sought by the applicant.

14. The Crown opposes the variations sought.

15. The power to vary bail conditions is contained in s 51 of the Bail Act 2013 (NSW). All references to statutory provisions in these reasons are a reference to that Act, unless otherwise indicated.

Consideration and disposition

16. In relation to the submission that the applicant is a “reduced bail risk”, the applicant submits that because he has complied with his bail conditions for nine months, has always attended court and has not been subject to breach of bail proceedings, it follows that he is a “reduced bail risk”.

17. I do not accept this submission. It does not follow, in my view, that simply because there has been compliance with the stringent conditions imposed that the applicant’s “bail risk” has reduced. It merely demonstrates that the applicant has complied with the conditions and, in consequence, minimised what would otherwise be an unacceptable risk based upon the assessment of the bail concerns. The applicant sought to buttress the submission by relying upon the finding made by Harrison J – viz., that although the applicant was at some risk of reoffending having regard to his criminal history, that risk was not unacceptable (reasons at [18]). I do not accept that submission. In my view that finding needs to be understood in context, particularly the statutory context: absent that finding bail must be refused (s 19(1)) and it is only with such a finding is the Court to consider the nature and extent of any bail conditions to be imposed. It does not constitute, as seems to be suggested, a finding that there is no risk or, of itself, a finding that there is a “reduced bail risk”.

18. Nor do I accept the submission that, in and of itself, the fact that the trial was aborted “without fault” of the applicant justifies a variation. What is presented in consequence of the adjourned trial is the fact that the applicant’s trial date will now not be until at some time in the second half of 2024. In furtherance of this, the applicant argued that this fact supported the relaxation – by removal – of the electronic monitoring condition because of the cost involved. (I address this submission later in these reasons: see [44], below).

19. The applicant next argued that there was a weak Crown case in connection with the shoot with intent to murder offence, or a significant weakening of it (being the refinement, earlier noted: see [13], above). This weakening was submitted to follow because, so it was argued, there was emerging evidence that the applicant was not the shooter (applicant’s submissions at [13]) and, specifically, it was submitted that there were significant issues around non-disclosure in connection with the existence of what was described during submissions as a “rival alternate shooter” (applicant’s submissions at [12] and [14]).

20. I do not accept the submission that there is emerging evidence that the applicant was not the shooter. (The submission was not developed, and the evidence to support it was not identified). As the Crown submitted, whether the applicant fired the weapon is unknown: the Crown case is that the applicant was either the shooter or, if not, present at the shooting and committed at his behest. So much is clear, in my respectful view, from the Crown Case statement.

21. Given the applicant’s remaining submissions on the third ground – that there is a weak Crown case, or a weakening of the Crown case by reason of the alleged non-disclosure – it is necessary to make some reference to the earlier bail decisions and reasons of Dhanji J (who refused the applicant bail), Harrison J (who granted the applicant bail) and Ierace J (who, upon the Crown’s application, imposed further restrictions on the terms of the curfew condition). Before doing so, for context, I will briefly set out some matters of background relating to the shooting on 6 November 2020.

22. The Crown case is that the applicant was either the person who shot the victim, or was present during the course of the shooting. It is said that the firearm used in this attack was discharged at least 8 times, with the victim being hit by a number of bullets in the area of his right shoulder and neck. The shooting occurred at the location where the victim was then residing. The injuries sustained in this attack are extremely serious: according to the Crown Case statement, they include a spinal cord injury with loss of motor and sensory function below the injuries to the cervical spine. Part of the Crown case – although submitted by the Crown before me to be an inessential part of the Crown case – is that the applicant had a motive to shoot the victim: the allegation is that the victim had attacked, and seriously injured, the applicant using a makeshift knife whilst they were former prison inmates at the Mid North Coast Correctional Centre in 2019. (This event is shown in photographs contained in the Crown Case statement at [4]). The Crown case is that the victim has identified the applicant by what was said at the shooting (that is, by voice identification – discussed further in what follows), and there is other circumstantial evidence which also links the applicant to the shooting. I emphasise this is not intended to be a granular dissection of the Crown case (neither side suggested that was required); it is merely a short summary, and an overview and introduction into what follows.

The application for conditional bail on 25 November 2021

23. On 25 November 2021 the applicant sought bail before Dhanji J. In order to secure conditional bail, the applicant was required to show cause why his detention was not justified (s 16A)(1)).

24. Relevantly here, the applicant argued that the Crown case against him was weak and that was a matter that justified a finding that cause has been shown. In aid of that submission, a number of matters were raised on behalf of the applicant including: (a) the fact that the victim identifies the applicant by his voice, and there is a question about the reliability of that evidence (albeit that the victim said that he heard the shooter use the words: “you fucking dog, remember me from fucking gaol. This is payback, motherfucker”); (b) the evidence of motive was significantly weakened as a consequence of a number of other persons who also had a strong motive to do harm to the victim; (c) the victim’s partner, who was present at the time of the shooting, had provided a statement, and she did not refer to having heard any words uttered (albeit, as Dhanji J noted, that ‘omission’ – if it be that – is potentially explicable by reason of the fact that the victim’s partner, on hearing the shots, dived back into the car and closed the door: see in this respect the Crown Case statement at [83]); (d) there are questions about the reliability of the victim himself; and (e) the Crown case otherwise relies upon circumstantial evidence, described by his Honour as “of some complexity”.

25. Dhanji J gave careful and detailed consideration to what was submitted by the applicant to be a fragile Crown case, ultimately concluding that the Crown case was “reasonably strong, although I would certainly not describe it as overwhelming” (judgment, p 6). Thus, the strength of the Crown case – or, as the applicant submitted, its lack thereof – was fully ventilated before Dhanji J.

The application for conditional bail on 1 September 2022

26. The applicant made a further application for conditional bail on 1 September 2022 before Harrison J. Relevantly, the applicant, in order to show cause and, further, to demonstrate that he did not present as an unacceptable risk, argued that the Crown case was a weak one. That submission was addressed in the following terms by Harrison J (at [10]-[12]):

10. Mr Sparos also asserts that the Crown case against him is weak. This was a matter raised before Dhanji J. His Honour said that in his view the Crown case “is reasonably strong” although he “would certainly not describe it as overwhelming”. Mr Sparos’ contention needs to be examined.

11. The Crown case is that the victim of the shooting and Mr Sparos were at one time in gaol together. The allegation is that the victim seriously assaulted Mr Sparos with a makeshift weapon and that the shooting was an act of retribution or revenge for that incident. There is evidence to suggest that if Mr Sparos had a motive to kill the victim that might be inferred from these circumstances, that evidence is significantly weakened as the result of a number of other people being identified who also had a strong motive to do him harm. There are no witnesses to the event apart from the victim who did not see or identify Mr Sparos. The victim only “identifies” him by reference to his voice which the victim says he recognised. There is some other material to suggest that the victim did not recognise Mr Sparos’ voice on a different occasion and that he may otherwise have expressed doubt about the accuracy of his recollection. There is no scientific or similar evidence, such as gunshot residue or DNA material that can be linked to Mr Sparos. The car said to have been used to convey the shooter to the scene contains no biological or other evidence inculpating Mr Sparos. A version of events given by Anita Adam, a witness who states that she heard no words spoken at the time of the shooting, detracts from the victim’s account that the shooter spoke to him at the time of or during the volley of shots that the Crown says were fired.

12. The Crown case is predominantly circumstantial. That does not mean that it is for that reason weak. However, on Mr Sparos’ reckoning, it is not a case that is likely to succeed at trial. In particular, there are very real questions about the reliability of the victim, a matter of some importance as the predominant, not to say almost exclusive, source of direct evidence.

27. Harrison J was satisfied that the applicant had shown cause for several reasons but, relevantly here, in part based upon the “identified frailties in the Crown case” (reasons at [13]). Harrison J did not consider that the applicant presented an unacceptable risk of failing to appear (reasons at [15]). His Honour was, however, satisfied that the range of bail concerns identified by the Crown were present – namely, the risks of reoffending, including “the risk that he may endanger the safety of the current victim and his partner and that he may interfere with evidence or contact Crown witnesses”, but was not satisfied that those risks were unacceptable (reasons at [16] and [18]). Thereafter his Honour granted the applicant conditional bail of some stringency, including the imposition of electronic monitoring (an enforcement condition that had been offered by the applicant). Again, as is apparent from his Honour’s reasons, the strength of the Crown case was again fully ventilated before Harrison J and despite his Honour’s assessment – and finding – on it, was satisfied that stringent bail conditions were nevertheless required.

The Crown’s variation application on 3 March 2023

28. On 3 March 2023, the Crown applied to Ierace J to vary the applicant’s bail conditions – specifically, in relation to the curfew condition (condition 5).

29. In relation to the application to vary condition 5, Ierace J accepted “that there is considerable force in the submission by the Crown that the circumstances in which the [applicant] has left the premises for other than the stated reasons are concerning, given the persons that he has associated with” (judgment, p 2). The “persons” Ierace J was referring to were earlier described by his Honour as “persons with serious criminal background which has caused concern to investigating police having regard to a perceived danger to the alleged victim of the charge of shoot with intent to murder” (judgment, pp 1-2).

28. Further, his Honour recorded that “the parties have agreed that it is appropriate that the conditions be varied so as to oblige the [applicant] to give advanced written notice to the officer in charge of the investigation before he leaves the premises” (judgment, p 2). Thereafter his Honour noted that the “effect of the agreed variation is that, except when the [defendant] leaves the premises to report to police or to attend court or in response to a medical emergency, he is obliged to give advanced written notice to the officer in charge” (judgment, p 2).

29. Having set out those parts of the previous bail decisions, I return now to the applicant’s submissions – that there is a weak Crown case and that there has been a significant weakening of it in consequence of alleged non-disclosure.

30. In relation to the submission that there is a weak Crown case, the substance of that submission (and the matters advanced) were essentially what was put before Dhanji J in November 2021 and Harrison J in September 2022. On each of those occasions, the applicant argued that the weakness in the Crown case arose, amongst a range of other matters, from the fact that there was an identifiable “rival alternate shooter”. That this is so is apparent from what was noted in Dhanji J’s judgment – namely, that although it was not argued by the applicant that he did not have a motive or that, at a minimum, the evidence of motive was not available to the Crown, it was argued that “the evidence of motive is significantly weakened as a result of a number of other people who had a strong motive to do harm to the complainant” (judgment, p 4). It is also apparent from what was noted in Harrison J’s judgment – including a consideration of the submission that the apparent motive of the applicant to shoot the victim was “significantly weakened as the result of a number of other people being identified who also had a strong motive to do him harm” (reasons at [11]). In my view, it is not appropriate in those circumstances to accede to any invitation to revisit the assessment of the strength of the Crown case: it has been assessed, and argued, on earlier occasions. Further, even if I were to do so, I am unpersuaded that such ground would be a proper basis upon which to vary the applicant’s bail conditions.

31. The applicant’s next submission was that the alleged non-disclosure further weakened what was submitted to be an already fragile Crown case. The submissions noted that two weeks before the trial was due to commence, the Commissioner for Police produced intelligence reports which revealed that the complainant had been shot in the face by a fellow DLASTHR (‘The Last Hour’) member prior to the shooting which forms the basis of the charges against the applicant. It followed, so the applicant submitted, that – notwithstanding that the applicant concedes “that the police did investigate” the specific rival alternate shooter – there has been a failure to properly disclose information in connection with those investigations and that failure “significantly weakens the prosecution case” (applicant’s submissions at [12]-[14]).

32. The thrust of that submission requires some short explanation, and some context. The Crown Case statement identified that the victim was a member of what was described as an “organised crime group”, DLASTHR, and that the victim had been shot in the face in June 2020 (Crown Case statement at [1], [10]-[14]). More generally, in relation to the intelligence reports, it should be noted that the applicant (a) did not submit that he was unaware of the identity of the person who is alleged to have shot the victim in June 2020; and (b) accepted that it was known that the police did investigate that person as being a possible shooter of the victim on 6 November 2020. The substance of the applicant’s submission is more nuanced: it is that the “investigative steps which either eliminated or did not eliminate alternate suspects” is yet to be disclosed.

33. The material tendered in this application contains evidence of contact that the police had made with the person identified by the applicant as the “rival alternate shooter” (statement of Shawn Neoh dated 13 June 2023). Nevertheless, the submission (and complaint) made was that there were “no notebooks or records of the conversation or communications that took place” with the “rival alternate shooter”. This is the material that the applicant submits is yet to be disclosed. The applicant’s submission is necessarily contingent: the complaint raised is that the investigative steps in connection with that “rival alternate shooter” necessarily generated “notebooks or records”, but those records are yet to be disclosed. The premise of the submission is not only that there is material available (of the kind identified) but that such ‘material’ is necessarily destructive of the Crown case.

34. I am not prepared to infer, in the circumstances, that there is such material. It should be noted that the basis for me to draw that inference was not identified in submissions. It should also be noted that there was evidence that established there was no such material – for example “no notebook records available”. Further even if it be the case that, ultimately, there is, as the applicant submitted, “notebooks or records” in connection with the person described as the “rival alternate shooter”, what those records might disclose and, critically for the applicant, whether – and, if so to what degree – that weakens the Crown case (rather than, say, reinforce it or, as another possibility, be neutral) I consider to be matters of conjecture. I am not prepared to infer, even assuming there is material of the kind suggested, that it somehow amounts to a weakening of the Crown case – less still that it is a “significant weakening”, and the submissions did not identify precisely why that consequence followed. In my respectful view, the predictive exercise argued by the applicant is an exercise in speculation. It follows, therefore, that I do not accept that there has been a recent and significant weakening of the Crown case, as argued.

35. To sum up: I do not accept any of the grounds advanced by the applicant to justify an order varying the bail conditions (see [13], above). The conditions imposed by Harrison J, and subsequently by Ierace J, were self-evidently directed to a range of bail concerns, undoubtedly extending to a concern that the applicant would commit a serious offence (s 17(2) (b)); endanger the safety of the victims, individuals or the community (s 17(2)(c)); and interfere with witnesses or evidence (s 17(2)(d)). The conditional bail granted reflects these bail concerns. The tightening of them reflected their currency. There is nothing to suggest that those concerns no longer exist. I am satisfied that they remain, as the Crown submitted. The applicant, it should be noted, did not argue to the contrary (except in the limited way addressed at [16]-[17], above); the applicant’s argument was that there should be a relaxation of some of the conditions to reflect what was argued to be a change in circumstances.

36. Notwithstanding that I have not accepted any of the grounds advanced for varying the bail conditions I will, albeit briefly, address the applicant’s further arguments that the bail conditions “unnecessarily interfere” with the applicant’s ability to work, parent and spend time with his ageing father (applicant’s submissions at [15]).

37. In relation to the interference with spending time with his “ageing father”, the written submission was not developed during the course of argument.

38. The applicant’s father is currently retired, and is 71 years of age. His evidence included: (a) that he visits the applicant “1 to 2 times per week” at the premises where he is required to reside; (b) that he would like to visit the applicant there more often, but he is “set in [his] ways and [doesn’t] feel comfortable being in someone else’s house for long periods” and that he would “like to be able to spend time” with the applicant in his own home, particularly as he feels awkward visiting the applicant where he is required to reside; (c) that he assists the applicant by doing groceries and other tasks; and (d) that he would like to be able to celebrate special occasions at his house, or other family members’ houses with the applicant and his daughter.

39. I accept that there is a degree of inconvenience in the conditions that have been imposed. Nevertheless, the evidence falls demonstrably short of establishing unnecessary interference, and I am unpersuaded that there is.

40. In relation to the applicant’s ability to work, he has been offered a position – as the “operations manager” of Unique Wedding Cars with an annual salary of $95,000. It would be based at the head office of that business in Fairfield East “unless transporting the vehicles to jobs and contractors”. The position offered is a full-time role, working 5 days a week.

41. The applicant argued that the conditions imposed unnecessarily interfere with this opportunity to secure employment. The Crown’s essential submission, which I accept, is that although it is generally desirable to enable individuals the subject of conditional bail to secure or continue employment, to permit the applicant to engage in, at least aspects of this work – notably, the transportation of vehicles that would require the applicant to drive in an unrestricted and unsupervised manner around Sydney – would significantly undermine the efficacy of the conditions, particularly the monitoring conditions imposed to mitigate the bail concerns. The Crown further emphasised in aid of its primary submission, in this respect, that the very matter that caused Ierace J to impose further restrictions upon the applicant (requiring him to advise the police, with 24 hours written notice, of his intent to travel, in the company of Mr Lewin, to a destination, and the time and duration of the proposed trip) recurred: the applicant had recently been observed dining and socialising with a number of persons with serious criminal backgrounds – that is, the applicant met with the very type of persons that persuaded Ierace J to further restrict the applicant’s bail conditions. Whilst I accept, as the applicant submitted, that this was not a breach of the bail conditions, it emphasises the currency of the bail concerns and the risks that remain, in my view.

42. To the extent that the applicant submitted that the delay in the trial was significant because of the cost associated with electronic monitoring, there was no express submission that financial hardship or constraints warranted the relaxation. If it be the case that the submission is implicit, I do not accept it. In this respect I would simply observe that the evidence in connection with the applicant’s financial position is quite meagre. It is also inconsistent. For example, on the one hand it was submitted on behalf of the applicant that the applicant has relied upon assistance in order to fund the electronic monitoring (applicant’s supplementary submissions at [6]), but the submissions did not go on to identify any details of that “assistance” nor was any attempt made to demonstrate – by evidence or other credible or trustworthy information (s 31) – the applicant’s financial position. On the other hand, the material tendered by the Crown, which was admitted without objection, established that the applicant attended the Verde restaurant with 30 other male persons in late June 2023, and the applicant is said to have paid “for the bill in full, in cash, at the end of the evening”. The Crown also pointed out that the applicant’s submission (as noted above) needed to be assessed in the context of the applicant urging the Court to amend the residency condition to allow him to reside in an apartment at an annual rent of $135,200 albeit that it was suggested, during submissions by the applicant, that the applicant’s putative employer would pay the ‘lion’s share’. Given these matters, particularly the unsatisfactory state of the evidence (such as it is) I am not persuaded that there is any basis to remove the electronic monitoring conditions based upon any suggestion that there is financial hardship or constraints.

43. The applicant next submitted that the conditions unnecessarily interfere with his ability to parent his daughter. The written submission was not significantly developed during the course of argument: it was submitted that, if the residency condition changed, the applicant’s daughter might reside with the applicant on weekends.

44. The evidence on this topic is sparse, and general. It is confined to the evidence referred to in the affidavit of the applicant’s father. It appears that the applicant’s daughter currently resides with her mother. I do not doubt that there is a degree of inconvenience in the conditions that have been imposed. Nevertheless, the evidence falls demonstrably short of establishing, as was argued, unnecessary interference, and I am not satisfied that there is.

45. Overall, I am satisfied that the bail conditions (essentially the residence and curfew conditions) are reasonably necessary to address the bail concerns (s 20A(2)(a)), are reasonable and proportionate to the offence for which the applicant has been granted conditional bail and appropriate to the bail concerns (ss 20A(2)(b) and (c)) and not more onerous than is necessary to address those concerns (s 20A(2)(d)).

The Crown’s application: the appointment of a new OIC

48. The Crown applies to vary the bail conditions to reflect that the former OIC remains medically unwell, and a new OIC has been appointed.

49. The involvement of the OIC is a consequence of the varied condition imposed by Ierace J and the involvement of the OIC is reflected in condition 5.

50. The Crown seeks the appointment of three serving police officers to fulfil what otherwise was the responsibility of the former OIC. The applicant opposes the appointment of three, rather than one, police officer, essentially on the footing that, given the stringency of the conditions, there is a risk of conflicting instructions and therefore innocent or inadvertent breach by the applicant.

51. The Crown submissions did not address why there was a need for three rather than one, police officer and I am not prepared, essentially for the reasons advanced by the applicant, to appoint more than one person in the place of the former OIC (within the terms of condition 5).

52. In my view the officer should be the current informant which is Detective Inspector Schleising.

Orders

53. For the above reasons, I make the following orders:

1. Refuse the applicant’s application for variation of his conditional bail.

2. Vary the references in condition 5 of the applicant’s current bail conditions from Detective Matthews to Detective Inspector Schleising.

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Decision last updated: 17 July 2023