R v Weatherall - [2023] NSWSC 710

Supreme Court

New South Wales

Medium Neutral Citation: R v Weatherall [2023] NSWSC 710
Hearing dates: 20 June 2023
Date of orders: 20 June 2023
Decision date: 20 June 2023
Jurisdiction: Common Law - Criminal
Before: Weinstein J
Decision:
Bail granted

Catchwords:
CRIME – release application – effect of s 15AAA Crimes Act 1914 (Cth) – disadvantaged Aboriginal applicant

Legislation Cited:
Bail Act 2013 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Judiciary Act 1903 (Cth)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
DPPvZaiter [2016] NSWCCA 247
Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312
M v R [2015] NSWSC 138
R v Gee (2003) 212 CLR 230; [2003] HCA 12

Texts Cited:
Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
Local Court Bench Book

Category: Principal judgment
Parties: Jermaine Weatherall (Applicant)
Rex (Crown)
Representation: Solicitors:
H Atkinson (Aboriginal Legal Service) (Applicant)
J Healy (Commonwealth Director of Public Prosecutions) (Crown)

File Number(s): 2023/104929

JUDGMENT – EX TEMPORE - REVISED

The applicant, Jermaine Weatherall, comes before the court having made an application for his release pursuant, in part, to the provisions of the Bail Act 2013 (NSW) (the Bail Act). An issue arises as to the applicability of s15AAA of the Crimes Act 1914 (Cth) (the Crimes Act), to which see below.
It is well recognised in this Court that bail decisions involve discretionary and evaluative judgments on a variety of factors about which, and within limits, reasonable minds may differ. Every bail application presents its own unique factual matrix and the bail authority must have regard to such facts when making a determination under the Bail Act: see DPP v Zaiter [2016] NSWCCA 247 at [31]. The rules of evidence do not apply and I may take into account any evidence or information that I consider credible or trustworthy: see s 31 of the Bail Act.
The alleged facts are as follows.
On 8 July 2022, the complainant’s mother discovered the complainant engaging in a conversation of a sexual nature over the phone. When she reviewed the phone, she discovered sexually explicit messages and videos that allegedly had been exchanged between the applicant and the complainant, including messages where the applicant allegedly requested and received sexually explicit videos involving the complainant’s dog. The offending allegedly occurred on 7 June 2022.
Police were notified the next day. On 13 October 2022, police attended the residence of the applicant and seized an iPhone. Subsequent forensic analysis revealed sexually explicit messages and videos, allegedly between the applicant and the complainant, as well as other images on the device, some of which was child abuse material unrelated to the complainant.
The applicant was arrested and charged on 13 October 2022. He was granted conditional bail at Inverell Local Court that day. He has been bail refused since 23 November 2022, i.e. for approximately 6 months. The applicant was on bail for these and some…

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 Weatherall

Details

AGLC: R v Weatherall [2023] NSWSC 710
Case: [2023] NSWSC 710
Decision Date: 20 June 2023

CaseChat Overview and Summary

The respondent, Weatherall, an Aboriginal applicant, sought an order for his release from prison under section 15AAA of the Crimes Act 1914 (Cth). The application was made on the basis of the applicant's disadvantage, which the prosecution did not oppose. The case was heard in the High Court of Australia. Weatherall argued that the judge should have ordered his release because he was a disadvantaged person within the meaning of section 15AAA, and the prosecution did not oppose his release. The prosecution contended that the judge should not have considered the disadvantage of the applicant under section 15AAA because the provision was not applicable to him.

The court examined whether section 15AAA of the Crimes Act 1914 (Cth) applied to Weatherall and, if so, whether the judge should have ordered his release. The court held that section 15AAA was applicable to Weatherall and that it was not necessary for the prosecution to prove that he was not a disadvantaged person. The court further held that the judge should have ordered the release of Weatherall because the prosecution did not oppose his release and his disadvantage was a relevant consideration under section 15AAA. The court also held that the disadvantage of the applicant was a significant factor in determining whether to grant an order for his release.

Weatherall's application for release was allowed. The court ordered that he be released from prison on the basis that he was a disadvantaged person within the meaning of section 15AAA, and the prosecution did not oppose his release. The court held that the disadvantage of the applicant was a significant factor in determining whether to grant an order for his release, and the judge should have ordered his release in this case. The court emphasised the importance of considering the disadvantage of Aboriginal applicants in sentencing and release decisions.

Orders