R v YY No. 2

[2016] NSWDC 363

District Court

New South Wales

Medium Neutral Citation:	R v YY No. 2 [2016] NSWDC 363
Hearing dates:	4 - 10 October; 19 October 2016
Date of orders:	21 October 2016
Decision date:	21 October 2016
Jurisdiction:	Criminal
Before:	A Haesler SC DCJ
Decision:	Bail detention application refused.
Legislation Cited:	ss 3, 8, 16A, 50, 74 Bail Act 2013
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Category:	Procedural and other rulings
Parties:	LD (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr M Fox (for the ODPP) Solicitor: Ms J Hall (for the offender)
File Number(s):	2015/87400
Publication restriction:	The Offender will be referred to by a pseudonym, YY (which will not be his correct initials). Likewise, the names of the complainant/s (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.

Judgment

1. YY was the accused in a judge alone trial before me at Wollongong District Court. The trial ran from 4 to 10 October 2016. YY appeared on bail and attended each day of his trial. After evidence and submissions the trial was adjourned. I delivered judgment on 19 October 2016. I convicted YY of 12 offences. They include two convictions for sexual intercourse with a child, which are show cause offences: s 16A Bail Act 2013. The matter was adjourned to 1 December 2016 for sentence.

2. Ordinarily bail, once granted, continues until the proceedings conclude after sentence unless there is a detention application. After my formal convictions a detention application was made. No formal notice was given but it was not unexpected. Often where, as here, further custody is inevitable, no resistance is offered to such applications but Ms Davenport SC, for the accused person, indicted the application was opposed.

3. Things were a bit tense after the verdict, which had taken me some time to deliver and where family members, in different camps, were present. Decisions were made without proper reference to the scheme of the Bail Act. The fact that some of the offences were show cause offences was not raised and thus not fully explored. As the analysis set out below shows, we were in fact all dealing with the wrong questions. I refused the application. The existing bail continued.

4. Mr Crown, believing that show cause was a critical issue, and that the matters discussed in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 had not been raised, within an hour contacted the court and asked that the matter be relisted, either to revisit the original application or as a fresh detention application. Notice was given to the defence. The interests of justice require that the application be properly determined, whether by revisiting the original application or as a fresh detention application, is a question of form not substance.

5. Ms Davenport SC, who appeared at trial and when the application was before me on Wednesday is indisposed. Ms Hall, solicitor, now appears.

6. When arrangements were made to re-list the application I raised a preliminary question for the parties: 

• Where a person has bail and has previously shown cause does the mere fact that a s 50 detention application is made require that the respondent accused person again shown cause?

7. This point was not an issue in Tikomaimaleya. It requires an examination of the Bail Act.

8. Section 50 allows the Prosecutor to make a detention application

1. The prosecutor in proceedings for an offence may apply to a court or authorised justice for revocation of bail for an offence.

2. An application under this section is a “detention application”.

…

3. If a bail decision has already been made, a court or authorised justice may, after hearing the detention application:

1. affirm the bail decision, or

2. vary the bail decision.

9. Section 16A provides:

1. A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

10. Section 3 defines bail decision “see section 8”.

11. Section 8 provides:

Bail decisions that can be made

1. The following decisions (each of which is a “bail decision”) can be made under this Act in respect of a person accused of an offence:

1. a decision to release the person without bail for the offence,

2. a decision to dispense with bail for the offence,

3. a decision to grant bail for the offence (with or without the imposition of bail conditions),

4. a decision to refuse bail for the offence.

12. In summary, a “detention application” involves the making of “a decision to refuse bail,” which is a “bail decision.” And, section 16A applies to a bail decision.

13. My initial confusion came about because s 50(4) in its terms is not entirely clear. If read literally, and applied here, as a bail decision - the decision allowing YY’s release was made on 31 March 2016 “has already been made” - I now have no power to revoke bail. I can only affirm or vary the earlier bail decision. This would be, as Mr Crown properly submitted, an absurd result for a detention application provision!

14. Section 50(4) must be read within the scheme of the Act noted above and in particular s 74 which restricts multiple applications. Section 50(4)’s purpose is to allow for affirmation and variation of earlier bail decisions without having to overcome those restrictions.

15. Section 74, to a degree, also overcomes a procedural fairness problem that could arise if an accused person having already once before met their onus of showing cause must again have to meet that onus every time another detention application is made.

16. Before I can entertain a further detention application I need to know:

1. Whether a detention application had previously been made? I assume that one had been made as the accused was bail refused when he first came before the District Court on 27 October 2015 and a successful release application was made on 31 March 2016.

2. If there was an earlier detention application, what grounds are there for a further detention application?

17. Grounds, applying s74 (4), are relevantly that:

1. material information relevant to the grant of bail is to be presented that was not presented to the court in the previous application;

2. that circumstances relevant to the grant of bail have changed since the previous application was made.

18. To assess these questions I will need to know what those circumstances were.

19. Given the Bail Act is a comprehensive statutory scheme or code (s.3(1)) the circumstances relevant to the grant of bail could only be:

1. Those set matters referred to in sections 17 and 18.

or

2. Any additional circumstances particular to the accused person that led to cause being shown when the release application was made.

20. If there is no new material information, or circumstances relevant to the grant of bail have not changed, the further detention application must be refused.

21. I note that none of these issues were raised in Tikomaimaleya as it appears Mr Tikomaimaleya had bail up until conviction and the matter before the Court was the first detention application that had been made.

**********

Decision last updated: 19 January 2017