Citation: R v Christodoulou [2005] NSWSC 1362
Court: Supreme Court of New South Wales
Date: 15 December 2005
Judge(s): Howie J
Background
The applicant had been committed for trial in the Sydney District Court on two serious charges: detaining for advantage and aggravated sexual assault. The Crown alleged the applicant threatened the complainant with a knife during the assault. The trial was listed to commence on 27 March 2006.
The applicant sought bail in the Supreme Court pending trial. At the hearing, his solicitor sought to call his ex-wife to give evidence directed at attacking the reliability of the complainant's account, and also asked the court to review alleged inconsistencies in the complainant's statements. The applicant had not called evidence at the committal proceedings before the magistrate.
The bail application also raised the applicant's community ties, his need to earn money to fund his defence, and the possibility of locating further evidence before trial. Countering these factors were findings that the applicant had contravened apprehended domestic violence orders on at least two occasions, had assaulted the complainant at a hospital while on bail, and faced a significant risk of a lengthy custodial sentence upon conviction.
Legal Issues
- Whether it was appropriate for a bail court to receive defence evidence directed at attacking the strength or reliability of the Crown's case, particularly where no such evidence was called at committal.
- What role, if any, the apparent strength of the Crown case plays in a bail determination.
- Whether, on the totality of relevant considerations, bail should be granted pending trial.
Decision
Howie J declined to allow the bail hearing to be used as a vehicle for testing the Crown case. His Honour observed that the applicant had been committed for trial without calling evidence at committal, and that it was not appropriate for the Supreme Court to hear evidence at a bail application that could have been led then and would be led at trial. Bail courts are busy, and permitting such evidence would undermine the court's capacity to deal with its list, particularly at year's end.
His Honour also declined to review the complainant's statements for inconsistencies. He reasoned that it was not the function of a bail court to assess a witness's credibility, particularly without hearing from the witness or giving her any opportunity to respond. The assessment of the complainant's reliability was a matter for the jury at trial.
On the relevance of the strength of the Crown case, Howie J held it is generally pertinent only at the extremes: where the prosecution case is so strong that conviction and a significant sentence are highly probable, bearing on flight risk, or where it is so weak that absconding becomes unlikely. This application fell at neither extreme. The court accepted, in principle, that the applicant had a positive case to call at trial, but could not assess the Crown case's strength without having seen the complainant.
Weighing all factors, including the seriousness of the charges, the real risk of a substantial custodial sentence upon conviction, the applicant's history of contravening domestic violence orders, the assault of the complainant while on bail, the risk of flight, and the relatively short period before trial, Howie J refused bail.
Orders Made
- Bail refused.
Key Takeaways
- A bail court is not an appropriate forum for receiving defence evidence aimed at challenging the reliability or credibility of a Crown witness, especially where that evidence was not called at committal and will be led at trial.
- Refusing to permit such evidence, Howie J emphasised that assessing a witness's credibility from statements alone, without hearing from the witness, is not a proper function of a bail application.
- The apparent strength of the Crown case is generally relevant to bail only at the two ends of the spectrum: where conviction appears highly probable (supporting an inference of flight risk) or where the case is so weak that absconding becomes unlikely.
- Committal for trial carries implicit weight: the magistrate's decision to commit reflects a view that a reasonable jury could convict, and a bail court should not routinely re-examine that foundation through evidence that could have been called before the magistrate.
- Where an applicant faces serious charges carrying a substantial potential sentence, the risk of flight remains a real consideration even if the defence has a potentially strong case to present at trial.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), s 9A
Cases cited: No cases were cited in the judgment.