R v Tsintzas

[2017] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172
Hearing dates:	26 May 2017
Date of orders:	26 May 2017
Decision date:	21 July 2017
Before:	Bathurst CJ at [1] McCallum J at [2] N Adams J at [3]
Decision:	Release application granted.
Catchwords:	BAIL – applicant charged with a show cause offence – both of applicant’s sons seriously injured in motor vehicle accident – cause shown – whether any unacceptable risks – bail granted on conditions
Legislation Cited:	Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 26(5), 49 Crimes Act 1900 (NSW), s 193C(1) Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited:	Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 McAndrew v R [2016] NSWCCA 58 Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 R v Kugor [2015] NSWCCA 14 R v Marcus [2016] NSWCCA 237 R v SK; R v DK [2014] NSWSC 816 R v S [2016] NSWCCA 189
Category:	Principal judgment
Parties:	Harry Tsintzas (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: Mr Z Khatiz, solicitor (Applicant) Ms N Williams (Respondent)   Solicitors: Oxford Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/00123487

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of N Adams J in draft. For the reasons given by her Honour I joined in the order made by the Court on 26 May 2017.

2. McCALLUM J: I have read the judgment of N Adams J in draft. Her Honour’s reasons reflect my own reasons for joining in the orders made on 26 May 2017.

3. N ADAMS J: On 26 May 2017, the Court heard a release application brought by the applicant pursuant to s 49 of the Bail Act2013 (NSW). The Director of Public Prosecutions (“the Director”) opposed the application. At the conclusion of the hearing, and after adjourning to consider the matter, the Court ordered the release of the applicant on a number of strict conditions. These are my reasons for joining in the decision to grant the release application at that time.

The charges

4. On 29 March 2016, investigators were lawfully monitoring conversations between the applicant and his co-accused. On that day, the co-accused said to the applicant, “Two and one yeah?” The applicant replied, “I’ve got it already. The two is there, I am just waiting for the one.” Investigators continued to monitor conversations between the two men over the next two days.

5. On 1 April 2016, investigators conducted physical surveillance at the applicant’s home. At about 9pm, the co-accused and another man attended the premises. The applicant supplied the co-accused with 27.8 grams of cocaine and the second man with 0.94 grams of cocaine. Police stopped and searched the vehicle in which those two men left the applicant’s home. The drugs were found and both men were arrested and charged.

6. During September 2016, police were lawfully monitoring conversations between the applicant and a number of his associates. It is alleged that the applicant, during one of those conversations, made an order for “10” from his up-line supplier. On 13 September 2016, the applicant was observed to drive his vehicle in a northerly direction on the M1 motorway. Investigators stopped the vehicle two kilometres north of Ourimbah. Police observed a hidden compartment underneath the bottom of the motor vehicle which contained two bags of a substance that was later analysed and found to be 267.5 grams of methylamphetamine. The prosecution case is that the applicant was en route to Mackay in Queensland for the sole purpose of supplying this methylamphetamine to a number of identified associates in that area.

7. The applicant declined an opportunity to be interviewed by police. His fingerprints were located on one of the two plastic resealable bags located in the car and his DNA was located on the outside edge of the filter casing of the engine bay, where the methylamphetamine was found.

8. A search warrant was executed at the applicant’s home later that day. Police located two concealment cans hidden in a black bin and wrapped in plastic bags on the rear verandah. The cans contained a number of smaller plastic bags containing white crystalline substances, which upon analysis were found to be 158.57 grams of cocaine and 14.6 grams of methylamphetamine. The applicant’s fingerprint was subsequently located on the exterior of the can and his DNA was located around the sealing area of a clear plastic resealable bag found within the concealment can.

9. On 13 September 2016, the applicant was charged with a number of offences contrary to s 25 of the Drug Misuse and Trafficking Act1985 (NSW) (“DMTA”), being the supplies of 27.8 grams and 158.57 grams of cocaine, the supply of 14.6 grams of methylamphetamine, and the supply of 267.5 grams of methylamphetamine (which exceeds the commercial quantity prescribed for that drug).

10. Subsequent investigations led to the applicant being charged with a further count of dealing with property being the proceeds of crime contrary to s 193C(1) of the Crimes Act1900 (NSW). The prosecution case for that charge is that persons who purchased drugs from the applicant were directed to pay money into a St George bank account opened by the applicant’s wife in 2013. A total of $14,300 was transferred into that account between March and September 2016.

11. The applicant is an unemployed 47-year-old man who is married and has four children aged between 16 and 24. He has no prior convictions for drug offences. He has convictions for common assault in 1993 and 2000, assault occasioning actual bodily harm in 2001, and driving offences in 1993, 1997, 2000 and 2001.

Procedural history

12. The applicant was arrested and charged on 13 September 2016. He was refused bail and remained in custody until the hearing of this release application. The proceedings were next listed for committal at the Campbelltown Local Court on 28 June 2017. The reason for the delay in the Local Court is that the committal proceedings were adjourned on 5 April 2017 and again on 16 May 2017 on the applicant’s application. The basis for the adjournment on both occasions was that the applicant is in plea negotiations with the Director.

13. The applicant has made two release applications to the Supreme Court since his arrest. On 23 November 2016, Button J refused the applicant’s first release application. On 15 May 2017, Bellew J refused a second release application. At the release application before Bellew J, the Director conceded that the threshold imposed by s 74 of the Bail Act had been satisfied. Section 74(1) provides that a court is to refuse to hear a second application for bail after an initial refusal unless there are grounds for a further release application. Section 74(3)(c) provides that one such ground for a further release application is where circumstances relevant to the grant of bail have changed since the previous application was made.

14. It was common ground that there had been a change in the circumstances relevant to a grant of bail between the date of the application before Button J and that of the second application before Bellew J. The relevant change was that on 15 April 2017 the applicant’s two sons were involved in a serious motor vehicle accident.

15. Before turning to consider the considerable evidence placed before the Court on this application, it is pertinent to have regard first to the relevant provisions of the Bail Act and to the principles to be applied in consideration of this application.

The Bail Act

16. Part 3 of the Bail Act deals with the making and variation of bail decisions. Division 1A (ss 16A and 16B) deals with the "show cause requirement" for certain types of offences. That division was inserted into the Bail Act as an amendment and commenced operation on 28 January 2015. Section 16A(1) provides that a bail authority considering a bail application for a “show cause offence” must refuse bail unless the applicant shows cause why his or her detention is not justified. Section 16B(1) lists the offences that are “show cause” offences for the purposes of s 16A(1). The applicant must show cause why his detention is not justified because he has been charged with an offence involving the supply of a commercial quantity of a prohibited drug: s 16B(1)(f) of the Bail Act.

17. Section 16A(2) of the Bail Act provides that, if an applicant for bail does show cause why his or her detention is not justified, the bail decision must be made in accordance with Division 2 of the Bail Act. Division 2 (ss 17 to 20A) deals with the "unacceptable risk test", which applies to all offences. Section 17(1) provides that the court must, before making a bail decision, assess any “bail concerns”. Section 17(2) goes on to set out four bail concerns for the purposes of the Bail Act, being concerns that, if the applicant were released from custody, he or she would: (a) fail to appear at any proceedings for the offence; (b) commit a serious offence; (c) endanger the safety of victims, individuals or the community; or (d) interfere with witnesses or evidence.

18. Section 18(1) of the Bail Act provides a list of matters that the bail authority is required to consider in assessing the relevant bail concerns. Those are the only matters to be considered in assessing bail concerns. Section 19(1) provides that bail must be refused if the bail authority is satisfied, on the basis of an assessment of the bail concerns, that there is an “unacceptable risk”. Section 19(2) provides that an “unacceptable risk” is an unacceptable risk that, if released, the applicant will (a) fail to appear at any proceedings for the offence; (b)  commit a serious offence; (c)  endanger the safety of victims, individuals or the community; or (d)  interfere with witnesses or evidence. Section 19(3) provides that, in applications involving show cause offences, the fact that the applicant has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.

19. Section 67(1)(e) of the Bail Act provides that this Court may hear a bail application for an offence if  a bail decision has been made by the Supreme Court. It is accepted that such an application is a de novo application and there is no need to demonstrate error: R v Marcus [2016] NSWCCA 237 at [27]. This Court has had occasion to consider Part 3 of the Bail Act in a number of decisions, including Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 (“Mawad”); Director of Public Prosecutions (NSW) v Tikomaimaleya (“Tikomaimaleya”) [2015] NSWCA 83; Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247; McAndrew v R [2016] NSWCCA 58; R v Marcus; and R v S [2016] NSWCCA 189.

20. The principles derived from those decisions as to how a court is to consider a release application when an offender is charged with a show cause offence were conveniently summarised by Button J in Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 at [51] – [56] as follows:

“First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.

Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].

Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.

Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.”

21. In relation to the sixth of the matters to which Button J referred, I would add the observations of Beech-Jones J in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35] as follows:

“In Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33] (“Zaiter”), RA Hulme J (with whom Hoeben CJ at CL and Wilson J agreed), noted that decisions of first-instance judges of this Court concerning bail applications published on caselaw have no greater precedent value than any other judgments at first instance. His Honour also stated that discretionary value judgments made in first instance judgments on bail applications do not establish any precedent as the doctrine of precedent is confined to decisions on points of law only (at [32] to [33]). Those observations apply with equal force to bail decisions of the Court of Criminal Appeal, including the outcome in Zaiter itself.”

22. One example of a circumstance that has been held to be relevant to the show cause test is family vulnerability in the absence of the applicant: Mawad at [44]. In Mawad, the applicant’s son was severely disabled and his daughter also had special needs. There was evidence before the Court as to the difficulty that the applicant’s wife had in caring for the children while he was in custody. Although the Court was satisfied that cause had been shown, it refused bail on the basis of an unacceptable risk that the applicant would commit a further serious offence if he were released on bail.

23. Finally, I note that, by virtue of s 31 of the Bail Act, the rules of evidence do not apply to release applications. Section 31 provides:

“A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence.”

Material relied upon by the applicant

24. On this application the applicant read affidavits sworn by his wife, his two daughters, and his parents. In addition, he tendered a number of documents relating to the current medical condition of his two sons.

25. The applicant’s younger son is aged 16. As a result of the injuries caused by the motor vehicle accident he has had part of his bowel removed as well as a large portion of his intestine. He has five broken ribs, a broken femur and a broken jaw. He has had 15 teeth removed. His jaw is wired and he has to be fed through a straw. He is in a wheelchair and needs assistance at all times. Such assistance includes being taken to the bathroom every two to three hours, including during the night. That is required because he is unable to control his bowels as a consequence of the removal of part of his intestine. He needs to be taken to medical appointments with a number of different medical specialists, including physiotherapists, a plastic surgeon, orthopaedics and a trauma team.

26. The older son is aged 22. He suffered severe injuries to his hip in the accident and is also confined to a wheelchair. He has had metal plates and screws placed into his hip. He also broke his arm and had surgery to insert a metal rod into it. As a result of significant nerve damage, he is unable to move his right hand. He has also had his left finger operated on. He has a fractured eye socket. He cannot walk and needs to be assisted all times, as well as be driven to number of medical appointments.

27. The affidavit evidence of the applicant’s wife, Alexandra Galanopoulos, is that she is struggling to take care of both of the young men. She has no one to help her. She necessarily has to leave one of her sons at home unattended when she takes the other to a medical appointment. The applicant’s parents deposed that they are old and frail and suffer from medical conditions themselves. Affidavits from the applicant’s two young adult daughters were before the Court setting out the long hours that they work. The applicant’s wife gave evidence that they are currently supporting her as she has had to leave her job working at a fish and chip shop to care for her sons.

28. Ms Galanopoulos gave additional evidence at the hearing of this application in response to the evidence of Senior Constable Osborne (see below at [34] – [36]). She indicated that she had made a number of enquiries about assistance in the community. One provider informed her that the cost would be $46 an hour, which she cannot afford. Another provider advised of a waiting period of 21 days. In relation to the “ComPacks” programme, she stated that she had spoken to a woman there who informed her that her boys were not eligible because they had already been discharged from hospital. She was informed that, to be eligible, they had to have been assessed in hospital. She stated that she was not given any referrals for home help while the boys were still in hospital.

29. Ms Galanopoulos was cross-examined about her affidavit evidence concerning the difficulties looking after her two sons and thus was able to elaborate upon that evidence. She described her younger son as having had more operations than her older son. She said that he was to undergo further surgery the following week. There has been some progress, but he has a very fast heart rate, which is being monitored with medication. She confirmed that she has to get up three or four times a night to assist him to go to the toilet because, as a result of the operation on his bowels, he is unable to “hold anything”. She gave evidence that the family’s general practitioner told her that it will be a ”long time” before he gets back to normal, or “it might be a permanent thing”.

30. She described having to take her older son to see a community nurse twice a week to change all of his dressings. He underwent plastic surgery on his leg and has scarring. The dressings have to be changed regularly to avoid infection. He is taken to a plastic surgeon once a week and physiotherapy is about to commence.

31. Ms Galanopoulos gave evidence that, although a community nurse came to visit them initially, she was no longer able to do so because the service was “understaffed”. She indicated that her older son sees a general practitioner once a week, a physiotherapist in Fairfield for his hand and a physiotherapist in Liverpool for his leg. There is a further appointment pending to see his surgeon because there is “a lot of” nerve movement in his right hand that is causing great concern.

32. There was affidavit evidence before the Court from the applicant’s parents, Ioannis and Rosa Tsintzas, stating that their family home is a property in Casula valued at about $620,000. They deposed that they were willing to offer that property as security for a surety in the amount of $620,000.

Material relied upon by the Director

33. The Director did not challenge the fact that on 15 April 2017 the applicant’s two sons were involved in a serious motor vehicle accident.

34. Plain Clothes Senior Constable Sarah Osborne swore an affidavit in relation to alternative care options for the applicant’s sons. She deposed that she had made enquiries of the Department of Health and was informed that they are currently eligible for a community support service called “Healthy at Home” provided by ComPacks. That service could assist the applicant’s sons with personal care (bathing, dressing or personal hygiene), food preparation, and transportation to and from appointments, as well as in-home respite for the applicant’s wife and daughters. She deposed that the service is only a short-term package for a period of up to six weeks, but that during that time the case manager would assess the sons’ ongoing needs and refer them to other services accordingly.

35. Annexed to Senior Constable Osborne’s affidavit was a brochure published by ComPacks in which information was provided about, inter alia, the “Healthy at Home” service. The package is described in that brochure as being available “for up to 6 weeks following discharge from hospital.” Under the heading “Eligibility”, the brochure states that, “People of any age who are in hospital who need case management and accommodation or community support services after discharge from hospital, may be eligible for ComPacks Services.” The brochure also states that referrals occur whilst an individual is in hospital and that, “Hospital staff will work with you to identify if ComPacks is suitable for you.”

36. In addition to the evidence about ComPacks, the Director relied upon a letter in which police advised the Court that the applicant had strong ties with the Rebels Outlaw Motorcycle Gang (“OMCG”). In addition, Senior Constable Osborne gave sworn evidence that she was aware that the applicant had affiliations with the Rebels OMCG. She stated that she believed that he was attached to the Liverpool Chapter and has “quite close” affiliations with high-ranking members of that gang. She described having intelligence in relation to the applicant’s clothing and telephone intercept material in which the applicant identified himself as being a member of the Rebels OMCG.

The applicant’s submissions

37. Mr Khatiz, solicitor, who appeared for the applicant, placed reliance upon a combination of factors in order to show cause. Those factors were the applicant’s need to be at liberty for a lawful reason, specifically to care for his two sons; the fact that it is his first time in custody; his limited prior criminal history; his ties to the community; the significant surety offered by acceptable persons, being his parents’ family home; and the proposed strict conditions that would mitigate the bail concerns. The focus of the submissions of Mr Khatiz was on the first of these factors and, in particular, on the evidence that the only person presently able to care for the two applicant’s sons was his wife.

38. Turning to address the question of potential bail concerns, Mr Khatiz made submissions in relation to the concern that the applicant would fail to attend court. He referred to s 26(5) of the Bail Act and noted that a surety condition is available. He submitted that, in addition to the significant surety condition, the applicant has strong family ties. He advanced a potential bail condition that the applicant be confined to his home on the basis that all he wishes to do is look after his sons. Although it was conceded that there were possible bail concerns, it was submitted that strict conditions would ameliorate any risk.

The Director’s submissions

39. The Director’s primary position was that the applicant had not shown cause why his detention was not justified. It was submitted that the medical records do not address the likely prognosis of the sons’ injuries. Nor do they address the length of time that the applicant’s two sons will be incapacitated. It was submitted that government-funded assistance was available. Counsel for the Director noted that the applicant’s sons were able to attend court for the hearing of the release application, albeit in wheelchairs. It was submitted that the evidence before the Court falls short of being “compelling and significant”, as was submitted on behalf of the applicant, and that the “great efforts” made by Ms Galanopoulos meant that the young men already had sufficient care. It was submitted that, although it might be difficult for her, the condition of the applicant’s sons will continue to improve and this “extraordinarily difficult phase” will pass. The Director did not cavil with the fact that the injuries were very serious. Rather, it was submitted that the acute phase had passed.

40. In the event that the Court was prepared to find that the applicant had shown cause, the Director submitted that the bail concerns could not be met by bail conditions. The Director submitted that, if the applicant were to be released, there were unacceptable risks both that he would fail to appear and that he would commit further offences. Reliance was placed upon the strength of the Crown case. It was submitted that, if convicted, the applicant would inevitably be sentenced to a significant full-time custodial sentence, which means there is a real risk of flight. Reliance was also placed on the applicant’s associations with the Rebels OMCG. The Director acknowledged that the applicant had not previously offended in this way, but noted that the course of conduct involved alleged repeat offending from March to September 2016.

Consideration

41. Applying the principles stated above to the facts in this case, I am satisfied that the applicant has established on the balance of probabilities that his detention is not justified. On the evidence before the Court, the burden of having to look after two young men is being borne solely by the applicant’s wife. She has had to stop work to look after her two sons and is being supported by her two daughters. The Court had the opportunity to hear her describe what that involves. In addition, the Court had the opportunity to observe her and her two sons, who were present in court for the hearing of the application. Ms Galanopoulos was petite in stature and her sons were not. I am satisfied that the burden of looking after them is creating an intolerable strain on her.

42. The principles derived from the cases to which I have referred above allow for the fact that a particular vulnerability experienced by a family member or members may, either alone or in combination with other matters, be sufficient to show cause. There is no authority for the proposition that any form of hardship to a family will necessarily establish that cause is shown. Rather, the court makes an evaluative judgment in each case.

43. I have noted the evidence regarding the availability of assistance through ComPacks. Unfortunately, the state of the evidence on that issue was somewhat unsatisfactory. The document annexed to the affidavit of Senior Constable Osborne clearly states that the “Healthy at Home” programme only applies to persons assessed whilst they are still in hospital. This is consistent with the evidence of Ms Galanopoulos as to what she was told after her sons were discharged from hospital. Although I have no reason to doubt the evidence of Senior Constable Osborne, who did not speak to the same person as Ms Galanopoulos, sufficient doubt remains as to whether an exception to the general rule could be made for the applicant’s sons.

44. In this particular case, having regard to the evidence before me with respect to the hardship to the applicant’s family, as well as to the other matters relied upon by the applicant referred to above at [37], I am satisfied that cause has been shown.

45. Turning to the consideration of the bail concerns, I accept the Director’s submission that two bail concerns in particular are present in this matter. The first bail concern is that the applicant may fail to appear at court if released on bail. It seems to me that the case against the applicant is strong, even allowing for the fact that the court has only been provided with the Crown Case Statement. Consistent with my assessment on this issue, it is to be noted that the committal proceedings have twice been adjourned on the basis that plea negotiations are on foot. It is anticipated that the applicant will plead guilty to at least some of the offences with which he has been charged.

46. The more significant bail concern is that the applicant may commit further serious offences if released on bail. The unchallenged evidence before the Court is that the applicant is a member of the Rebels OMCG. The experience of the courts is that such affiliations can mean that the applicant has access to criminal sources to continue in his drug trade. The suspicion held by police that the applicant has been living off the proceeds of supplying prohibited drugs is strengthened to some small extent by the fact that the applicant was otherwise not employed during the relevant period. Mr Khatiz submitted that the applicant was previously unemployed and that his wife was supporting him. I am satisfied that there is a bail concern that the applicant would continue drug dealing if released. The question is whether that bail concern, as well as the concern that he may not appear in answer to his charges, amounts to an unacceptable risk.

47. The conditions advanced were stringent. They included, among other things, restrictions amounting to house arrest, reporting obligations, non-association with co-accused, a requirement to surrender his passport and not apply for any other travel document, a requirement that he use only one mobile telephone, and a curfew enforcement condition. The imposition of a curfew enforcement condition means that police would be able to attend the applicant’s home at any time to ensure that he is complying with his curfew condition. In addition, his elderly parents would provide their home as security for a surety in the amount of $620,000.

48. When assessing the bail concerns, I have had regard to all of the matters in s 18(1) of the Bail Act. The material going to those relevant factors pulls in different directions. The applicant’s criminal history and criminal associations, the seriousness of the charges, the strength of the prosecution case and the likelihood of a significant term of imprisonment being imposed weigh in favour of finding that the bail concerns amount to unacceptable risks. On the other hand, the applicant has strong family ties, has never breached bail in the past, needs to be free to look after his children and has advanced strict bail conditions that could address any bail concerns in accordance with s 20A of the Bail Act. In particular, I have had regard to the significant needs of the applicant’s children as being relevant to his need to be at large. The need to care for them weighs against him fleeing the jurisdiction.

49. Any grant of bail applies only until the matter is next in court. It is always open to the Director to make a detention application under s 50 of the Bail Act if the relevant factors in s 18(1) of the Bail Act change. Further matters that may change the circumstances relevant to both tests would be if there was a plea of guilty, or if there was evidence that the condition of the applicant’s sons had improved such that two adults were not required to care for them.

50. Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, “The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk.” I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk.

51. I note that, after the Court had indicated that it proposed to grant bail, the Director asked that there be additional conditions that the applicant not approach or contact any member past or present or associate of any outlaw motorcycle gang and that any guard dogs at the applicant’s home be contained in order for the police to attend to enforce the curfew and residence requirements. Those conditions were incorporated into the final order.

52. Finally, I make the observation that this application is being heard de novo and as such there is no need to demonstrate error in the detailed reasons of Bellew J, who refused the applicant’s release application on 15 May 2017. It is nonetheless relevant to note in passing that, when the application was before Bellew J, there was no evidence as to why the applicant’s two adult daughters could not assist their mother. Nor was there any evidence regarding the difficulty in obtaining community assistance. That evidence was adduced for the first time on this application.

Amendments

29 April 2019 - publication restriction lifted

Decision last updated: 29 April 2019