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
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
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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.
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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.
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The alleged facts are as follows.
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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.
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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.
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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…
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- AGLC
- R v Weatherall [2023] NSWSC 710
- Case
- [2023] NSWSC 710
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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