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Court of Criminal Appeal 2 August 2013

R v Michael John BROWN

[2013] NSWCCA 178

Sexual offencesAssault & violence
BAIL APPLICATION FOR REVIEW EXCEPTIONAL CIRCUMSTANCES PRESUMPTIONS PROTECTION OF ALLEGED VICTIM BAIL REFUSED

Citation: R v Michael John Brown [2013] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 2 August 2013
Judges: Rothman J, Fullerton J, Beech-Jones J

Background

The respondent was charged with aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900, the underlying offence being the indecent assault of a 14-year-old child. It was alleged he broke into a home, lay on top of the sleeping complainant, partially undressed her, and made forcible contact with her. The complainant identified the respondent immediately and made complaints to her mother, a friend, and ultimately police.

A judge of the Court had granted the respondent bail. On 7 May 2013, the Director of Public Prosecutions applied to the Court of Criminal Appeal for a review of that decision. The review was heard on 24 May 2013, at which time the Court refused bail and reserved its full reasons, which are the subject of this judgment.

The respondent had prior convictions for robbery with striking (1995, two counts) and robbery in company (2003), both of which qualify as serious personal violence offences under the Bail Act 1978. At the time of the alleged offence, he was also subject to a good behaviour bond.

  • Whether the Court had jurisdiction to conduct a de novo review of bail on the DPP's application.
  • Which presumptions under the Bail Act 1978 applied, given the respondent's prior convictions for serious personal violence offences.
  • Whether "exceptional circumstances" within the meaning of s 9D of the Bail Act justified the grant of bail.
  • What weight should be given to the protection of the alleged victim and community, the respondent's community ties, and his Aboriginal background.

Decision

The Court confirmed it had jurisdiction to hear the bail review as a hearing de novo under s 45(1)(b) of the Bail Act, on the DPP's application under s 48(1)(a)(iv). The Court reviewed the bail application afresh rather than merely reviewing the earlier decision for error.

Because the respondent had prior convictions for serious personal violence offences, s 9D of the Bail Act applied. That provision requires a court to refuse bail to a repeat serious personal violence offender unless satisfied that exceptional circumstances justify its grant. The ordinary presumption in favour of bail and other burden-shifting provisions did not apply.

The Court acknowledged several factors favouring the respondent, including his ties to community and family, his Aboriginal background and associated kinship connections, and the low flight risk he presented. The Court also noted the importance, particularly for younger Aboriginal accused, of exploring culturally appropriate supervision as an alternative to remand.

Despite those factors, the Court identified countervailing concerns of significant weight. These included implicit threats made to the complainant and her family, apparently in the respondent's interests; his history of unlicensed driving; and evidence that alcohol remained a feature of his current circumstances, raising the risk that it could act as a disinhibitor. His proposed residence in Brewarrina was remote enough that conditions requiring alcohol abstinence could not be policed effectively, nor could his proximity to the complainant be adequately controlled. Taken together, the circumstances were not sufficiently exceptional to justify bail, and it was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Under s 9D of the Bail Act 1978, a court must refuse bail to a repeat offender charged with a serious personal violence offence unless satisfied that exceptional circumstances justify its grant; the ordinary presumption in favour of bail is displaced entirely.
  • A DPP-initiated bail review under the Bail Act is conducted as a hearing de novo, meaning the Court considers the matter afresh rather than reviewing the earlier decision for error.
  • Refusing bail is not a form of punishment; the Court reaffirmed that bail determinations turn on statutory criteria including flight risk, the interests of the accused in liberty, protection of the alleged victim, and protection of the community.
  • The Aboriginal background of an accused and associated kinship and community ties are relevant considerations in bail applications, and the Court indicated that culturally appropriate supervision should be explored as an alternative to remand, particularly for younger Aboriginal accused.
  • Proximity of proposed residence to the complainant, the unworkability of proposed conditions, and evidence of ongoing alcohol use were each treated as factors undermining the case for exceptional circumstances, even where flight risk was low.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), ss 8A–8F, 9, 9A, 9B, 9C, 9D, 30AA, 32, 45, 48
- Crimes Act 1900 (NSW), ss 95, 97, 112(2)

Cases
- Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- R v Chehab [2013] NSWCCA 62
- R v Daron John Wright (Supreme Court of NSW, Rothman J, 7 June 2005, unreported)
- R v Gregory William Jacobs (Supreme Court of NSW, Rothman J, 30 April 2008, unreported)
- R v Hamill (1986) 25 A Crim R 316
- R v Hilton (1987) 7 NSWLR 745
- R v Mahoney-Smith [1967] 2 NSWR 154
- R v Medich [2010] NSWSC 1488
- R v Newby (Supreme Court of NSW, Sully J, 27 January 2006, unreported)
- R v Pakis (1981) 3 A Crim R 132
- R v PDR (No 2) (Supreme Court of NSW, Rothman J, 30 July 2007, unreported)
- R v Petroulias [2010] NSWCCA 95
- R v Young [2006] NSWSC 1499