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11
Supreme Court 28 April 2006

R v Young

[2006] NSWSC 1499

Homicide
BAIL CHARGE OF MURDER S.9C BAIL ACT 1978 APPLICABLE EXCEPTIONAL CIRCUMSTANCES DEMONSTRATED CONDITIONAL BAIL GRANTED

Citation: R v Young [2006] NSWSC 1499
Court: Supreme Court of New South Wales
Date: 28 April 2006
Judge(s): Johnson J

Background

The applicant, a 22-year-old electrical apprentice with no prior criminal history, was charged with murder, failing to stop and assist after a vehicle impact causing death, and high-range drink driving. The charges arose from events on the evening of 17 March 2006, when the applicant attended a Newcastle hotel, consumed a significant quantity of alcohol (later recorded at a blood alcohol concentration of 0.185), and became involved in an altercation with another group. The deceased was a stranger to the applicant prior to that night.

The Crown alleged that the applicant deliberately drove his four-wheel drive vehicle, fitted with a metal bull bar, at the deceased as he stood on a footpath, killing him. The applicant was stopped by police shortly after the incident, initially denied involvement, and was subsequently charged. He had been held on remand since mid-March 2006.

Because the most serious charge was murder, the applicant could not be granted bail unless he satisfied the court that "exceptional circumstances" justified it, pursuant to section 9C of the Bail Act 1978 (NSW).

  • Whether the applicant could demonstrate "exceptional circumstances" under section 9C of the Bail Act 1978 to justify the grant of bail on a murder charge
  • What factors are relevant to assessing "exceptional circumstances" in the bail context
  • What conditions, if any, should be imposed if bail were granted

Decision

Johnson J identified that section 9C of the Bail Act 1978 creates a presumption against bail for persons charged with murder, reflecting a longstanding common law principle. The court examined historical authorities on the exceptional circumstances test and confirmed that such circumstances need not arise from a single dramatic factor. A combination of factors can together satisfy the test.

Three main considerations led the court to find exceptional circumstances in this case. First, even at the bail application stage and before the full Crown brief had been served, aspects of the available evidence raised a question about the strength of the murder charge specifically. Second, the applicant's personal circumstances were favourable: no prior criminal history, stable long-term employment, strong family ties, a good character evidenced by unchallenged documentary evidence, and support from his parents with whom he lived. Third, the court was satisfied that the applicant posed no ongoing threat to the community, characterising the events of that night as an isolated incident with no indicators of likely repetition.

The court was careful to note that this assessment was made in the limited context of a bail application, not a committal or trial. It acknowledged that the full Crown brief had not yet been served and that the factual picture remained incomplete. Nonetheless, taking the combination of factors together, Johnson J was satisfied that exceptional circumstances were demonstrated and that bail should be granted on strict conditions.

Orders Made

Conditional bail was granted on all three charges, subject to the following conditions:

  • Appear at Newcastle Local Court on 24 May 2006 and as required thereafter
  • Report daily to Belmont Police Station between 8am and 8pm
  • Reside at a specified address in Eleebana
  • Enter into a bail undertaking with a personal recognisance of $5,000
  • One acceptable person (the applicant's father) to enter into a surety agreement secured for $250,000
  • Not attend any international points of departure or arrival
  • Not apply for any passport or travel documents during bail
  • Not enter any licensed premises
  • Not leave the specified residence between 10pm and 4:30am unless accompanied by a parent
  • Be of good behaviour throughout the bail period
  • Not contact named prosecution witnesses except through legal representatives
  • Not drive or occupy the driver's seat of a motor vehicle on a public street

Key Takeaways

  • Under section 9C of the Bail Act 1978, bail for a person charged with murder is not available unless the court is satisfied that exceptional circumstances justify its grant, placing the onus squarely on the applicant.
  • Exceptional circumstances need not arise from a single standout factor. The Supreme Court confirmed that a combination of factors considered together can meet the threshold.
  • A relatively weak Crown case on the specific murder charge, assessed on the limited material available at the bail stage, can contribute to a finding of exceptional circumstances alongside favourable personal circumstances.
  • Strong subjective factors such as good character, no criminal history, stable employment, and solid family ties are relevant to the exceptional circumstances analysis, not merely to the separate question of bail conditions.
  • Where exceptional circumstances are found, the court retains a broad discretion to impose detailed conditions designed to address flight risk and community safety concerns, including restrictions on movement, reporting obligations, and prohibitions tailored to the nature of the alleged offending.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), s 9C

Cases
- R v Cable (1947) 63 WN 267
- R v Watson (1948) 64 WN 100
- R v Zvonaric (1967) 1 Petty Sessions Review 77 (Moffitt J, 3 November 1967)
- R v Tapueluelu (Dowd J, 5 January 2004, unreported)
- R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402