R v Walton

[2021] NSWDC 182

District Court

New South Wales

Medium Neutral Citation:

R v Walton [2021] NSWDC 182

Hearing dates:

27 April 2021 and by submissions

Date of orders:

27 April 2021

Decision date:

27 April 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

I grant the accused bail with conditions as outlined in paragraph [17].

Catchwords:

Criminal Law – bail application – show cause offence – significant delay – strength of Crown case – oath against oath - detention not justified

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Cases Cited:

R v Farrell [2016] NSWSC 1278

R v Daniel [2014] NSWSC 1968

R v Cain (No 1) [2001] NSWSC 116

Category:

Procedural rulings

Parties:

Regina (Crown)
Gary Walton (Accused)

Representation:

Solicitors:
Mr Thomas (DPP)
Mr Blomfield

File Number(s):

2020/00136689

Publication restriction:

Statutory non-publication order in relation to the names of the two complainants.

Judgment

1. HIS HONOUR: Gary Lesley Walton applies for bail. He was arrested on 7 May 2020. On 8 May 2020 he was refused bail by the Local Court. The applicant relies upon s 74(3)(c) of the Bail Act in that there is a change of circumstances. It is submitted that the time the applicant has served in custody is longer than was anticipated at the initial bail hearing. The premise that a change of circumstances must be demonstrated is a false premise.

2. Section 74 is headed, "Multiple release or detention applications to same Court not permitted." Subsection (1) refers to, "A Court that refuses bail for an offence." The Local Court refused bail. The District Court has not. Second or subsequent release applications after a refusal of bail are not permitted in the same Court unless there are grounds for a further application.

3. Section 74 has no application to this bail application because the District Court is not the same Court that refused bail. The applicant has misconceived s 74. In my view the bail application to this Court is to be dealt with as a new hearing. However, if I am wrong about that a change in trial date since the refusal of bail can constitute a change of circumstances: R v Farrell [2016] NSWSC 1278 at [8]; R v Daniel [2014] NSWSC 1968 at [9].

4. Pursuant to s 61 of the Bail Act, a Court may hear a bail application for an offence if proceedings for the offence are pending in the Court. The accused was arraigned on a 15 count indictment on 11 December 2020. He pleaded not guilty to the charges. The offences are pending in this Court. Jurisdiction to hear a bail application is made out.

5. I have read the Crown case statement comprising 17 paragraphs which is undated. It is exhibit 1 in the proceedings. In short compass, serious allegations are made against the applicant. There is a single count for the complainant, AP. The applicant was in a relationship with her mother. He was acting as the stepfather. It is alleged he pulled his pants down and asked her to suck his penis. She declined. AP's sister, SP, was also the stepdaughter of the applicant. There are 14 counts that pertain to her. The allegations are that the applicant had sexual intercourse with the complainant by placing his penis in her mouth and ejaculating between the ages of 9 and 14 (counts 2, 3, 5, 6, 8, 10 and 14), as well as a number of counts of indecent assault involving groping of her breast (counts 4, 7, 9, 11, 12, 13 and 15). Some of the offences are contrary to s 66A(1) of the Crimes Act and carry a maximum penalty of life imprisonment.

6. The applicant is in a show cause position. The onus is on him to show cause why his detention is not justified.

7. The following has been filed on behalf of the applicant;

1. application for bail 

2. affidavit of Linda Marie Hardwick sworn 22 December 2020 (Exhibit A)

3. proposed conditions of bail.

8. I take into account the following matters in the determination of show cause.

1.  STRENGTH OF THE CROWN CASE.

9. There are questions as to whether the evidence of the complainants is cross‑admissible. There is no independent supportive evidence strengthening the allegations. The case may boil down to oath upon oath. The jury will be instructed that if they believe the accused, they must acquit. Alternatively, if they find difficulty in accepting the accused's evidence, but think it might be true, then they must also acquit. Mr Thomas who appears for the Crown sensibly concedes that the Crown case is not strong. The assessment of the strength of the Crown case is an impressionistic one. My impression is that the Crown case is not strong.

2. DELAY IN PROCEEDINGS AND LENGTH OF TIME TO BE SPENT IN CUSTODY.

10. The accused went into custody on 7 May 2020. Due to COVID-19 jury trials in Griffith were suspended between February and September 2020. Mr Walton's trial is listed to commence on 6 September 2021. He is presumed to be innocent. He will spend 16 months in custody unless there is a grant of bail. In R v Cain (No 1) [2001] NSWSC 116 Sperling J at [9] said:

"The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights."

11. The prospect of an accused who is presumed to be innocent spending 16 months in custody is not consistent with modern concepts of civil rights.

3. WHETHER A SENTENCE OF IMPRISONMENT IS LIKELY.

12. Two of the counts carry life imprisonment however a bail application should not be approached on the basis that it would be sensible or expedient for the accused to begin serving an apparently inevitable custodial sentence now rather than at a later point when he is convicted and duly sentenced: R v Farrell [2016] NSWSC 1082 at [16]. In making an assessment that the Crown's case is not a strong case, it is not inevitable that a conviction and custodial sentence will occur.

4. FAMILY NEEDS.

13. The applicant's mother is 69. She has a number of health issues. Prior to his incarceration the applicant provided regular assistance to her. She deposes that she "would be greatly assisted if Gary was to be released to my home and recommence performing activities as my carer, as I have very limited support."

5. PREPARING A DEFENCE.

14. Ms Hardwick deposes that the applicant is, "Illiterate and cannot read or write." She says further that her son has, "Spoken to (her) about the difficulties he has had understanding the brief of evidence despite his solicitor visiting him and calling him. Gary also has ADHD which means at times he has a short attention span." She makes the observation that from her experience, "Gary needs extended time to go through material so that he can understand and comprehend what is before (sic)." Clearly, she meant him.

15. In my view being illiterate is a significant issue for the adequate preparation of his defence if he remains in custody. Ms Hardwick resides a short distance from the solicitor's office. Gaol visits are time consuming for practitioners. Visits to a solicitor's office do not pose the same logistical difficulties as attending a prison.

6. OTHER FACTORS.

16. (i) The applicant offers 15 proposed conditions of bail. If there was a grant of bail the prosecution do not seek any other conditions. I have considered the strength of the bail proposals.

(ii) The applicant has strong ties to the Griffith community and family support.

(iii) Record and fail to appear. The majority of the applicant's convictions relate to driving offences; however he has some stalk and intimidate charges resulting in a s 9 bond that was breached and called up and he received a sentence of imprisonment. He has also had suspended sentences called up and breached resulting in gaol for apprehended domestic violence orders.

DETERMINATION

17. The factors relied upon by the applicant in combination satisfy me that the applicant has shown cause why his detention is not justified.

UNACCEPTABLE RISK

18. I turn now to the question of unacceptable risk. The Crown submit that he is an unacceptable risk. The Crown's bail concern (pursuant to s 17) is that the applicant will:

1. fail to appear;

2. commit a serious offence.

19. The Crown point to his domestic violence breaches and that he will not appear due to the lengthy sentence he will receive if convicted. The meaning of the phrase "unacceptable risk" should be determined by reading the statute as a whole having regard to the content of s 19 and the objects of the Act. The test of assessing whether there is an unacceptable risk in a particular case for the purposes of s 19 is an evaluative one which involves considering the various bail concerns identified in s 18. I have taken into account the matters set out in s 18. I am satisfied that the proposed bail conditions address any bail concerns in accordance with s 20A.

BAIL CONDITIONS

20. Bail is granted on the following conditions.

1. To be of good behaviour.

2. Must appear on 6 September 2021 at the District Court at 9am and any other time when required by law to be at court.

3. Must reside at 19 MacArthur Street, Griffith, NSW, 2680 with Linda Hardwick and nowhere else.

4. May only leave the premises between the hours of 8pm and 8am if in the direct company of Linda Hardwick.

5. To report to the Griffith Police Station daily between the hours of 8am and 8pm.

6. Not to drink alcohol or enter any premises in which alcohol is sold. That includes hotels, clubs and licensed restaurants.

7. Not to take any illegal or prescriptive drugs except for a drug lawfully prescribed for the applicant.

8. Must not have any contact directly or indirectly (except through their lawyers) with any person who the prosecutor has told them is a prosecution witness or could be a prosecution witness.

9. Not to make or attempt to make contact in any way whether directly or indirectly through a third party and whether in person or by telephone or other electronic means including social media.

10. If they happen to run into any of those persons on the street or elsewhere accidentally, it is their responsibility to immediately turn and walk away.

11. The applicant is to travel from the correctional centre from which they are to be released on bail in the company of Linda Hardwick who must be in attendance at the correctional centre before the applicant is released.

12. He is not to apply for any new passport or travel document.

13. He is not to go within 500 metres of any point of department from the Commonwealth of Australia.

14. One (or more) acceptable person is to enter into an agreement under which they agree to forfeit $10,000 if the applicant fails to appear before the Court in accordance with the bail acknowledgment.

15. One (or more) acceptable person is to provide a character acknowledgment which complies with the Bail Act 2013 and the Bail Regulations 2014. His mother is a suitable person to provide a character acknowledgement and in my view her affidavit is sufficient for that purpose.

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Decision last updated: 19 May 2021