Re Tilley
[2024] VSC 274
•15 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0085
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by SARAH TILLEY |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 May 2024 |
DATE OF RULING: | 15 May 2024 |
CASE MAY BE CITED AS: | Re Tilley |
MEDIUM NEUTRAL CITATION: | [2024] VSC 274 |
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CRIMINAL LAW – Application for bail – Charge of murder – Schedule 1 offence – Requirement to show exceptional circumstances – Nature and seriousness of alleged offending – Strength of prosecution case – No criminal history – No history of failure to comply with bail conditions – Availability of stable accommodation – Availability of full time employment – Availability of bail support service – Bail guarantee – Exceptional circumstances established – Applicant not an unacceptable risk – Bail granted – Application of rules of evidence – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAA, 8 – Evidence Act 2008 (Vic), ss 4, 75.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | C Farrington | Radovic Lawyers |
| For the respondent | E Dane (solicitor) | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
On 4 February 2024, Sarah Monique Tilley (“Tilley”) was charged with the murder of Sergio Andres Cuesta Posada (“Cuesta Posada”). The murder is alleged to have occurred at Chelsea Heights in Victoria on 16 September 2023.
Tilly is currently on remand and has applied for bail for the first time.
In support of her application, Tilley relied on a number of factors to establish the existence of exceptional circumstances justifying the grant of bail. These included issues with the prosecution case, her youth and lack of criminal history, the availability of stable accommodation and full time employment, and the offer of a bail guarantee. The application for bail was opposed by the prosecution on the basis that exceptional circumstances had not been established, but that in any event, Tilley would present an unacceptable risk if she were to be released on bail.
For the reasons to follow, Tilley’s application for bail is granted.
B. Background
B.1 Alleged offending
Tilley’s co-accused are Jared Stuart Baker (“Baker”), Michael Jeffrey Frankland (“Frankland”) and her intimate partner Hubba Able Stanley Paul (“Paul”).
The following account is based on the prosecution case and comprises allegations only.
It is alleged that in early September 2023, Cuesta Posada committed a burglary at Tilley and Paul’s home in Queensland, and that he was murdered in retaliation. A gold chain valued at $150,000 and sets of car keys were reported stolen. However, police believe that illicit drugs, not personal items, were stolen from Tilley and Paul. In addition, Cuesta Posada allegedly owed Paul and Frankland large drug debts.
On the morning of 16 September 2023, at approximately 9.40, Tilley was captured on closed-circuit television arriving at Brisbane Airport by car and stopping temporarily in the drop-off area of the domestic terminal.
Baker and Paul were also captured on closed-circuit television entering the domestic terminal at approximately 9.43 that morning. At 10.27am, the 2 men boarded a flight to Melbourne. It is alleged that given the close proximity between these 2 events, it can be inferred that Tilley dropped Baker and Paul off at the airport.
It is also alleged that Paul boarded the flight under the false name “Abbuh Laup”, being the letters of both his first name and surname arranged in reverse order, while Baker boarded the flight under the false name “Jarrad McHugh”.
Upon arrival at Melbourne Airport, Baker and Paul hired a rental car. Paul hired the car in his name and provided Baker and Tilley’s contact details to the hire car company. Call charge records indicate that Paul called Tilley at 1.38pm and again at 1.44pm whilst in Tullamarine.
Later that afternoon, the hire car was captured on closed-circuit television arriving in the suburb of Chelsea Heights. It is alleged Baker and Paul then entered a residential property (“the Chelsea Heights Residence”) and met with Frankland.
At 4.24pm, the hire car was captured on closed-circuit television leaving the Chelsea Heights area. A short time later, Frankland allegedly left the area separately in a rental van.
At 7.26pm, both vehicles were captured on closed-circuit television returning to the Chelsea Heights Residence. Frankland then allegedly left the Chelsea Heights Residence in the rental van at 7.40pm.
That same evening, Cuesta Posada attended The Smith restaurant and bar in Prahran for a friend’s birthday dinner. Cuesta Posada attempted to contact Tilley by phone at 7.23pm, but she did not answer. At 7.27pm, Tilley allegedly called Paul (who had just arrived at Chelsea Heights), before returning Cuesta Posada’s call 1 minute later. The call lasted for 26 seconds.
At approximately 7.25pm (being 3 minutes before he first spoke to Tilley), Cuesta Posada left the restaurant with a co-diner who had offered him a lift. He provided the co-diner with an address which was a few houses down from the Chelsea Heights Residence. Cuesta Posada allegedly told a friend who remained at the restaurant that he would “come back”. At approximately 7.50pm, Cuesta Posada and Tilley spoke over the phone for the second time. The call lasted for 1 minute and 46 seconds.
At approximately 8.37pm, Cuesta Posada was dropped off at the address near the Chelsea Heights Residence. His co-diner left the area shortly thereafter. At 8.40pm, Cuesta Posada called Tilley again. The call lasted for 13 seconds. It is alleged that during that call, Tilley provided Cuesta Posada with the address of the Chelsea Heights Residence.
At 9.18pm, the hire care rented by Baker and Paul was captured on closed-circuit television on Chelsea Park Drive, 1 street away from the Chelsea Heights Residence. At 9.22pm, the hire car was captured on closed-circuit television returning to the Chelsea Heights Residence. The prosecution case is that Baker and Paul murdered Cuesta Posada at the Chelsea Heights Residence at a point in time between Cuesta Posada’s arrival at approximately 8.40pm and when the hire care was captured driving on Chelsea Park Drive at 9.18pm.
At 9.20pm, Paul’s mobile phone was switched off. The last known location of the phone at that time was in the suburb of Carrum.
At 9.24pm, Frankland allegedly returned to the Chelsea Heights Residence. At 9.37pm, the hire car was captured on closed-circuit television departing the Chelsea Heights Residence, followed at 10.10pm by the rental van. Neither vehicle returned to the Chelsea Heights Residence that evening.
At 9.43pm, Cuesta Posada’s mobile phone was switched off. According to Cuesta Posada’s phone records, the last known location of his mobile phone was in the Seaford area. At 9.50pm, Paul’s mobile phone was switched back on in the Frankston area. Based on these records and other circumstantial evidence, it is alleged that Cuesta Posada’s body was transported by Baker and Paul in a southerly direction from Chelsea Heights, through Seaford and Frankston, to Mount Eliza.
Baker’s mobile phone had been switched off at 7.12pm and was turned back on in Mount Eliza at 11.22pm. Police believe this was a deliberate tactic by Baker to conceal his movements that evening.
At approximately 12.30pm the next day, Baker and Paul returned the hire car at Melbourne Airport before boarding a flight to Brisbane.
On 16 January 2024, statistical evaluation of DNA[1] profiles obtained from the boot of the hire car revealed a possible match with Cuesta Posada’s DNA profile.
[1]That is, deoxyribonucleic acid.
On 30 January 2024, Frankland was arrested at his home in Mount Eliza. A search warrant was executed at his address resulting in a large quantity of cannabis and other drugs being located and seized, as well as a pill press, a freezer, a chainsaw and other alleged drug manufacturing equipment.
On 3 February 2024, Paul was arrested at Melbourne Airport and Baker and Tilley were arrested in Queensland.
Police believe that Frankland, an alleged drug manufacturer, trafficker and supplier, orchestrated the murder of Cuesta Posada. To this end, it is alleged that Frankland had nominated the Chelsea Heights Residence as the scene of the murder, knowing it would be vacant.
The prosecution case is that Tilley lured Cuesta Posada to the Chelsea Heights Residence. Once Cuesta Posada was allegedly murdered, police believe Baker and Paul then left the Chelsea Heights Residence and made their way to Frankland’s home in Mount Eliza to dispose of the body. It is alleged that Cuesta Posada’s body was transported to Frankland’s home by Baker and Paul in the boot of the hire car.
The prosecution accepts that Tilley’s role in the alleged offending is in a different category to her 3 co-accused as she was not in Melbourne at the time. However, it is alleged that without Tilley’s involvement in luring Cuesta Posada to the Chelsea Heights Residence, he would not have been murdered that evening.
B.2 Applicant’s personal circumstances
At the time of the alleged offending, Tilley was 22 years of age. She was born in Cranbourne, Victoria, and completed year 12 at Hallam Secondary College before gaining employment as a medical receptionist.
Tilley has been in a relationship with Paul for 2 years, having relocated to Queensland with him approximately 12 months ago. Upon arrival in Queensland, she initially worked as a property manager and in a warehouse of a department store, until she and Paul decided to start their own coffee van business together. She has not had contact with Paul since they were both arrested, but she believes that their relationship remains stable and supportive.
Since the time of her arrest and remand, she has reportedly experienced a sharp downturn in her mental health, including suffering from anxiety and depression.
She has no criminal history and no reported drug or alcohol abuse issues.
C. Legal principles
In interpreting and applying the Bail Act 1977 (Vic), the court is required to take into account the guiding principles set out in section 1B. These include competing considerations of the importance of maximising the safety of the community, and the presumption of innocence and the right to liberty.[2]
[2]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
Murder is a Schedule 1 offence.[3] Therefore, Tilley must demonstrate that exceptional circumstances exist that justify the grant of bail.[4]
[3]Bail Act, sch 1, item 2.
[4]Ibid, s 4AA(1).
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances must be such as to take the case out of the ordinary or norm so as to justify the grant of bail.[5] Although the threshold is high, it is not an impossible standard to reach. It may be met by a combination of matters even when none of the individual circumstances is considered exceptional.[6]
[5]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[6]Ibid.
If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[7] In assessing that risk, the court must consider whether the risk posed may be mitigated by any conditions of bail.[8]
[7]Bail Act, s 4D(a).
[8]Ibid, s 4E(3)(b).
The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the exceptional circumstances test has been met.[9] The notion of unacceptable risk does not concern merely any risk of offending. Rather, the question is whether such a risk is unacceptable.[10] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[11]
[9]Ibid, s 4E(1).
[10]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[11]Bail Act, s 4E(2).
In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[12] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:
[12]Ibid, ss 4A(3), 4E(3)(a).
…
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i) that the accused would be sentenced to a term of imprisonment; and
(ii)if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iiia)was on remand for another offence; or
(iiib)was at large awaiting sentence for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order …
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including—
…
(iii) experiencing any ill health, including mental illness; or
…
(i) the availability of treatment or bail support services;
…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
If the court is considering the release of an accused on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of risk that the accused may endanger the safety or welfare of any other person, interfere with a witness or fail to surrender into custody.[13] However, those conditions must be no more onerous than is required and must be reasonable, having regarding to the nature of the alleged offence and the circumstances of the accused.[14]
D. Submissions
[13]Ibid, s 5AAA(1).
[14]Ibid, s 5AAA(2).
D.1 Applicant’s submissions
In support of bail, it was submitted on behalf of Tilley that exceptional circumstances were established by the combined weight of several factors, namely:
(1)The strength (or lack thereof) of the prosecution case. It was submitted that presently the prosecution case cannot be categorised as strong and a jury would likely return a “not guilty” verdict. It was further submitted that thorough consideration of the matter by the prosecution ought to result in a discontinuance of the charges against Tilley.
(2)Tilley’s lack of criminal history. Tilley is relatively young and this is her first time before the courts and in custody. It was submitted that it would be “deeply troubling” to keep a young woman with no prior criminal history or other outstanding matters in custody in light of the current weaknesses in the prosecution case.
(3)At the time of the alleged offending, Tilley was not subject to bail, a summons, at large awaiting trial, on parole, the subject of any community correction order or any family violence intervention order.
(4)Tilley has used her time on remand wisely, applying herself and completing educational courses and obtaining employment as a billet.
(5)The availability of stable accommodation. Tilley proposes to reside with her parents at their address in Melbourne and not return to Queensland.
(6)The availability of employment. Tilley has been offered full time employment as a grouter upon her release from custody. Her brother is an employee of the same business.
(7)The availability of bail support services. Tilley has been assessed as suitable to participate in the Bail Safe outpatient treatment and monitoring program. As part of this program, she would be required to participate in individual psychological counselling sessions and group therapy sessions offered by Bail Safe. If considered appropriate, she could also be subject to electronic monitoring to assist with her supervision whilst on bail.
(8)Tilley’s personal circumstances. Her father has recently been diagnosed with cancer. While his prognosis is good, this has been a source of constant worry for Tilley.
(9)The availability of a bail guarantee. In support of their daughter’s application, Tilley’s parents have offered $100,000 by way of security over their family home.
It was submitted that given her lack of criminal history, her prior good character and supports in the community, there ought to be no concern that Tilley poses an unacceptable risk of endangering the safety or welfare of any other person or interfering with witnesses. Further, it was submitted that it would be possible to sufficiently mitigate any such risk associated with a grant of bail by the imposition of the following conditions, namely that Tilley must:
(1)Reside at [her parents’ residential address].
(2)Report to the Cranbourne Police Station (the frequency of which to be determined by the court).
(3)Comply with a curfew from 10.00pm to 6.00am, unless in the company of her parents or for medical reasons.
(4)Surrender herself into custody at the time and place of hearing or trial and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender herself into custody.
(5)Not change her place of residence without the leave of the court.
(6)Not leave the State of Victoria.
(7)Not leave the Commonwealth of Australia.
(8)Not attend any port, airport or international point of departure.
(9)Surrender any passport or travel documents held by her and not apply for another.
(10)Not have any contact or seek to contact any witnesses for the prosecution, whether directly or indirectly, except for the informant.
(11)Not contact or associate with any co-accused or named persons of interest as nominated by the informant (except for her intimate partner, Paul, who may only be contacted by phone, noting he is presently on remand).
(12)Comply with all directions of the Bail Safe Program and its electronic monitoring system.
Further, Tilley was willing to agree to any other conditions the court deemed appropriate.
D.2 Respondent’s submissions
In response, the prosecution submitted that Tilley had not reached the high threshold of establishing exceptional circumstances. Particular reliance was placed on the seriousness of the alleged offending and what the prosecution contended to be a case that could not be described as weak. It was submitted that in relation to murder charges, it is not unusual for the accused to have no prior criminal history. In addition, it was submitted that there are numerous pieces of evidence that inculpate Tilley in the alleged offending, including the call charge records, the movement of the vehicles on the day of the alleged murder, the DNA evidence obtained and the evidence of a clear motive.
The prosecution made no submissions in relation to matters personal to Tilley, but contended that she had previously had family supports and full time employment which evidently did not prevent her from engaging in the alleged offending.
The prosecution submitted that even if exceptional circumstances could be established, Tilley posed an unacceptable risk of endangering the safety or welfare of any other person and interfering with witnesses or otherwise obstructing the course of justice. The prosecution further submitted that the proposed conditions of bail did not mitigate these risks to an acceptable level. In this regard, it was noted that investigators considered certain witnesses to be in danger, Cuesta Posada’s remains have not yet been found and investigations are ongoing. That said, the prosecution accepted that there would be no value in Tilley wearing an ankle bracelet for electronic monitoring purposes, as she did not appear to be a flight risk.
E. Consideration
E.1 Exceptional circumstances
It was common ground between the parties that the alleged offending is objectively serious. If convicted of the offence of murder, Tilley would be sentenced to a mandatory term of imprisonment which would be highly likely to exceed any time spent on remand.
Presently however, the evidence linking Tilley to the alleged offending is very limited. While it is not the court’s role in a bail application to reach conclusions about the evidence, it is necessary in having regard to the surrounding circumstances to form a broad view about whether, taking the prosecution’s case at its highest, it might be regarded as a strong or weak case.[15]
[15]Re Wetzler [2023] VSC 626, [71] (Champion J). See also s 3AAA(1)(b) and FT v The King [2024] VSCA 90, [78] (Beach, McLeish and Niall JJA).
As Tilley was not in the jurisdiction at the time of the alleged murder, the prosecution’s case will depend on evidence of complicity in relation to the offence. The prosecution indicated it would have a better appreciation of its case once the hand up brief is filed. Be that as it may, viewing the evidence at its highest, there is currently scant evidence upon which Tilley could be incriminated as being part of any conspiracy to murder Cuesta Posada.[16]
[16]Compare Re Nguyen [2022] VSC 836, [68] (Lasry J).
It was properly conceded by the informant under cross-examination that there is currently no evidence to indicate that Tilley coerced Cuesta Posada to attend the Chelsea Heights Residence. It was also conceded that, even if she did so, there was nothing to establish she had any knowledge that Cuesta Posada would be murdered.
More specifically, there is presently no probative evidence that:
(1)Tilley was aware of the reason why Baker and Paul were going to the airport, if it was in fact her who drove them there.
(2)Tilley was aware that her contact details were provided to the hire car company.
(3)Tilley coerced or lured Cuesta Posada to attend the Chelsea Heights Residence, to the exclusion of all other reasonable hypotheses consistent with innocence. As was submitted on behalf of Tilley during oral argument, there are several hypotheses consistent with innocence, including that the only reason she was communicating with Cuesta Posada on the night of 16 September 2023 was because he made the initial contact. The informant conceded during cross-examination that the prosecution would have to exclude the hypothesis that even if Tilley did provide the address of the Chelsea Heights Residence to Cuesta Posada, she did so innocently.
(4)Tilley knew Cuesta Posada would be murdered or that he was in fact murdered. The informant conceded during cross-examination that the police currently have no evidence that Tilley knew Cuesta Posada would be harmed.
As noted above,[17] the call charge records suggest it was Cuesta Posada who attempted to initiate contact with Tilley on the evening of 16 September 2023. Without further evidence as to what was discussed during those calls, or why Cuesta Posada instigated them, the prosecution’s contention that Tilley actively sought to contact Cuesta Posada for the purpose of luring him to the Chelsea Heights Residence must be subject to material doubt.
[17]See par 15 above.
Having considered the strength of the prosecution case in combination with Tilley’s lack of criminal history, her personal circumstances, the availability of stable accommodation and full time employment, the availability of support through the Bail Safe Program, and the offer of a not insignificant bail guarantee, I am satisfied that exceptional circumstances exist that justify the grant of bail.
E.2 Unacceptable risk
As recently observed by the Court of Appeal, “[t]he question of risk is forward looking and involves a predictive exercise often based on incomplete material”.[18] On the evidence, there was nothing of substance to suggest that Tilley would endanger the safety or welfare of any other person, interfere with witnesses or otherwise obstruct the course of justice while on bail. Further, the matters referred to in the previous paragraph strongly point to a conclusion that any risk is minimal.
[18]FT v The King [2024] VSCA 90, [79] (Beach, McLeish and Niall JJA).
In any event, I am satisfied that any such risk could be reduced to an acceptable level by the imposition of strict conditions of bail. Notably, Tilley proposed a non-association condition with her co-accused, save for her intimate partner, Paul, whom she seeks to contact by phone whilst he is on remand. The evidence before the court was that such calls could be easily monitored by police.
In addition, conditions of bail which will allow the police to monitor Tilley’s mobile phone usage are appropriate in the circumstances and will reduce the likelihood of Tilley interfering with witnesses or otherwise obstructing the course of justice while on bail.
In light of the concession made by the prosecution regarding the lack of utility of electronic monitoring,[19] a condition of this kind would not be reasonable and would be more onerous than is required in the circumstances.[20]
[19]See par 46 above.
[20]Bail Act, s 5AAA(2)(a) and (b).
F. Conclusion
For the reasons stated, exceptional circumstances exist justifying the grant of bail. Further, the prosecution has not established that Tilley poses an unacceptable risk of endangering the safety or welfare of any other person, or interfering with witnesses or otherwise obstructing the course of justice. Accordingly, bail is granted on the following conditions, namely that Tilley must:
(1)Reside at [residential address] (“the Residence”).
(2)Report to the officer in charge of the Cranbourne Police Station, or her or his nominee, every Monday and Friday between the hours of 7.00am and 9.00pm.
(3)Not leave the Residence between the hours of 10.00pm and 6.00am each day (“the Curfew Hours”), unless in the company of her father, her mother, or in the case of a medical emergency.
(4)Present at the front door of the Residence during the Curfew Hours upon the reasonable request of the informant, or his nominee, being an authorised member of Victoria Police.
(5)Not change her place of residence without leave of the court.
(6)Not use or possess any narcotic substance as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(7)Not possess or use more than 1 mobile phone.
(8)Provide the informant or his nominee with the phone number, International Mobile Equipment Identity (“IMEI”) number and any password or Personal Identification Number (“PIN”) of the mobile phone she possesses or uses, within 24 hours of first having access to that mobile phone, and notify the informant or his nominee of any change of password or PIN of that mobile phone within 24 hours of that change.
(9)Produce the mobile phone she possesses or uses for inspection upon the reasonable request of the informant or his nominee.
(10)Provide any password or PIN for the mobile phone she possesses or uses upon the reasonable request of the informant or his nominee.
(11)Not leave the State of Victoria.
(12)Not attend any port, airport or international point of departure.
(13)Surrender any current passport or any interstate or international travel documents in her possession or control to the informant or his nominee within 24 hours of the date of these orders.
(14)Not apply for any passport or any interstate or international travel documents or cause, whether directly or indirectly, any other person to do so on her behalf.
(15)Not have any contact with, or seek to contact, any witnesses for the prosecution, whether directly or indirectly, other than the informant.
(16)Not have any contact with, or seek to contact, whether directly or indirectly, any co-accused, namely, Baker and Frankland, other than Paul, whom she may only contact by phone.
(17)Comply with all lawful directions of the Bail Safe Program (which are not to include electronic monitoring).
(18)Attend the Magistrates’ Court of Victoria at Melbourne on 12 August 2024 and there surrender herself and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender herself into custody.[21]
[21]The matter is next listed for a committal case conference on 12 August 2024.
G. Further observations
The prosecution’s affidavit in opposition exhibited 2 affidavits sworn by the informant. Of these, the affidavit specifically in response to the affidavit in support of this application contained a number of bare assertions. It also contained submissions. Indeed, the affidavit stated on no fewer than 11 occasions either “I submit …”, “I would submit …” or “it is submitted that …”.
The court is not bound by the rules of evidence when considering and determining applications for bail,[22] and may receive and take into account any evidence it considers credible or trustworthy in the circumstances.[23] However, this does not mean the court is obliged to ignore the policy and rationale underlying those rules.[24] The absence of any factual detail setting out the basis for bare assertions made in bail proceedings warrants the court not attributing any weight to those assertions.[25]
[22]Bail Act, s 8(1)(aa). See also ss 4(1)(a) and 75 of the Evidence Act 2008 (Vic); FT v The King [2024] VSCA 90, [61] (Beach, McLeish and Niall JJA) regarding the interlocutory nature of bail proceedings.
[23]Ibid, s 8(1)(e).
[24]R v RB [2024] NSWSC 471, [30]-[32] (Lonergan J), citing Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227, [36]-[39] (Beech-Jones J, with whom Gleeson JA relevantly agreed). Both cases involved consideration of equivalent provisions of the Bail Act 2013 (NSW). See also, Re Ammar Dhaimat (No 1) [2014] ACTSC 42, [43] (Refshauge J), concerning equivalent provisions of the Bail Act 1992 (ACT).
[25]Ibid, [31].
Neither bare assertions nor submissions in an informant’s affidavit or statement in opposition assist the court. On this application, they played no part in determining the outcome. To that end, although not strictly necessary, rulings were made during the course of the hearing that several paragraphs of the informant’s affidavit be excluded.
A number of issues were also identified in respect to the material filed on Tilley’s behalf.
In support of Tilley’s application for bail, 2 affidavits were filed from each of her parents purporting to provide evidence of ownership of the property the subject of the bail guarantee. Although each affidavit stated that copies of the certificate of title, council rates notices and mortgage documents were exhibited, neither affidavit was filed in the prescribed form with the exhibits and certificates attached. Unsatisfactorily, it only became clear during the hearing that no attempt had been made to exhibit any of the relevant documents. Although the prosecution agreed to a short adjournment to allow Tilley to rectify these issues, the adjournment and refiling of the affidavits resulted in unnecessary delay and inconvenience.
In summary, although the court is not bound by the rules of evidence when hearing and determining a bail application, considerations of fairness and efficiency mandate that care must still be taken concerning the substance, form and structure of material placed before the court.[26]
[26]Ibid, [32].
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