Citation: SHALALA v R [2012] NSWSC 351
Court: Supreme Court of New South Wales
Date: 13 April 2012
Judge(s): RS Hulme J
Background
The applicant was arrested in December 2010 and charged with multiple offences involving the supply of amphetamines, including supplying a large commercial quantity. The maximum penalty for the most serious charge is life imprisonment. The Crown's case relied heavily on recordings from a controlled police operation, comprising approximately ten DVDs of audio and video surveillance.
The applicant sought to represent himself, having parted ways with a legal aid lawyer, and wished to challenge the legality of the controlled police operation. To do so, he needed access to the recorded evidence and a legal library. He made repeated requests to gaol authorities across multiple correctional centres for computer access and library facilities, but those requests were largely denied or inadequately met.
When the bail application first came before the Court in March 2012, the matter was adjourned to allow the Crown to obtain a formal response from Corrective Services. After repeated follow-up, Corrective Services stated only that it was unable to provide an official response and had been "informally advised" that no computer access had been denied. The Court found that response wholly unsatisfactory.
Legal Issues
- Whether the applicant could satisfy the high threshold under s 8A of the Bail Act 1978, which applies to charges of supplying a large commercial quantity of drugs and requires the applicant to affirmatively justify bail
- Whether the risk of the applicant failing to appear, the seriousness of the offences, and community protection concerns argued against bail under s 32 of the Bail Act 1978
- Whether the applicant's inability to prepare his defence while incarcerated, due to Corrective Services' failure to provide adequate facilities, weighed sufficiently in his interests to justify granting bail
Decision
Issue 1: Flight risk and community protection
The Court acknowledged a genuine risk that the applicant might abscond if released. His own intercepted statements included an admission that he had previously fled Queensland after being granted bail. An outstanding arrest warrant from Western Australia added to those concerns. The severity of the potential sentence upon conviction provided a further incentive to disappear.
On the other side, the applicant pointed to a consistent record of appearance in New South Wales proceedings despite facing serious charges on prior occasions. The Court accepted that as a countervailing factor but considered the overall flight risk appreciable. On community protection, the seriousness of the charges argued against bail, though statutory restrictions prevented the Court from treating the applicant's prior record as evidence that he was likely to reoffend during any bail period.
Issue 2: The applicant's interests and ability to prepare a defence
The Court found it impossible to avoid the conclusion that the applicant was unable to prepare his case while in custody. Corrective Services had not provided functioning equipment on which to view or listen to the recorded evidence, and there was nothing to suggest that position would change. Library access was also practically inaccessible because staff cutbacks meant a supervising officer was rarely available.
The Court stated that, in normal circumstances, it would have refused bail without hesitation given the s 8A threshold and the concerns under the flight risk and community protection considerations. However, the applicant's entitlement to prepare his own defence, and his effective prevention from doing so by the attitude of Corrective Services, constrained the Court to grant bail. The Court also noted that if the applicant were re-arrested under the Western Australian warrant upon release, he should be free to seek an urgent hearing before the same judge.
Orders Made
- Bail granted
Key Takeaways
- Under s 8A of the Bail Act 1978, an accused charged with supplying a large commercial quantity of drugs faces a high threshold and must affirmatively satisfy the court that bail should not be refused.
- Granting bail is not limited to cases where flight risk and community protection concerns are absent. Here, the Supreme Court held that an applicant's inability to access evidence and legal resources while in custody, owing to Corrective Services' conduct, was a factor in his interests sufficient to overcome what would otherwise have been a refusal.
- The court's assessment of flight risk took into account an outstanding interstate warrant, intercepted admissions about prior absconding, and the severity of the likely sentence, while also giving weight to the applicant's unbroken record of appearance in New South Wales.
- Corrective Services' failure to provide an adequate or timely response to the court's inquiry, and its inability to guarantee future access to facilities, contributed directly to the outcome. The informal assurance that no access had been denied was given no weight in light of contradicting evidence from endorsed complaints and magistrate endorsements.
- Where an unrepresented accused needs to review voluminous electronic evidence and conduct legal research, the absence of adequate prison facilities can bear materially on the interests consideration within the bail framework.
Legislation and Cases Referenced
Legislation
- Bail Act 1978
- Crimes Act 1900
- Drugs (Misuse and Trafficking) Act 1985
- Law Enforcement (Controlled Operations) Act 1997
Cases
- Not stated