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Supreme Court 5 September 2013

R v Fletcher

[2013] NSWSC 1273

Assault & violenceDrugsTheft & propertyPublic order & justice offences
CRIMINAL LAW BAIL MULTIPLE OFFENCES WHETHER EXCEPTIONAL CIRCUMSTANCES WHETHER BAIL SHOULD NOT BE REFUSED

Citation: R v Fletcher [2013] NSWSC 1273
Court: Supreme Court of New South Wales
Date: 5 September 2013
Judge: Price J

Background

The applicant was charged with ten offences spanning late 2011 and early 2012, including two counts of specially aggravated break and enter with a serious indictable offence, two counts of causing grievous bodily harm with intent, participation in a criminal group, drug supply, threats made via carriage service, and dealing with suspected proceeds of crime. The charges arose from a series of alleged incidents including a violent home invasion, a street assault causing life-threatening injuries, and a pattern of threatening phone calls to a former partner.

The Crown opposed bail. Much of its case rested on lawfully intercepted telephone calls, which it said placed the applicant at the centre of escalating criminal activity connected to an outlaw motorcycle gang (the Lone Wolf OMCG).

The applicant had a prior conviction for maliciously inflicting grievous bodily harm with intent, for which he received six years imprisonment in 2004. He was also on bail for a robbery offence at the time the alleged offending occurred.

  • Whether the applicant met the "exceptional circumstances" threshold under s 9D(1) of the Bail Act 1978, which applies to repeat offenders charged with serious personal violence offences
  • Whether the Crown case was sufficiently weak to constitute an exceptional circumstance justifying bail
  • Whether bail should also be refused for the remaining charges to which s 9D(1) did not apply, having regard to the considerations in s 32 of the Bail Act 1978

Decision

Price J found that the applicant was a "repeat offender" within the meaning of s 9D of the Bail Act 1978, because his 2004 conviction for maliciously inflicting grievous bodily harm with intent constituted a prior "serious personal violence offence." This triggered the requirement that the applicant demonstrate exceptional circumstances before bail could be granted for the s 33 and s 112 Crimes Act charges.

On the strength of the Crown case, his Honour assessed the intercepted telephone evidence as capable of supporting a jury verdict of guilt when considered in combination, but did not regard the case as strong. There was a reasonable prospect that a jury would not be satisfied beyond reasonable doubt that the applicant participated in the home invasion. However, a moderately weak Crown case alone was insufficient to discharge the heavy onus under s 9D(1).

Price J also found the Crown's concerns about witness interference to be well founded. The intercepted conversations showed the applicant had a direct interest in influencing what witnesses said to police, and calls to his former partner included extreme threats of violence. His criminal history, which included repeated assault and domestic violence convictions, further weighed against him.

Taking all matters required under s 32 into account, the applicant had not demonstrated exceptional circumstances. For the remaining charges, to which the s 9D(1) presumption did not apply, Price J was separately satisfied that bail should be refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Section 9D(1) of the Bail Act 1978 imposes a heavy onus on a repeat offender charged with a serious personal violence offence: bail cannot be granted unless the court is satisfied that exceptional circumstances justify it.
  • A weak Crown case can, in principle, constitute an exceptional circumstance, but a case that is merely "not strong" will not automatically clear that bar, particularly where other factors weigh heavily against the applicant.
  • Exceptional circumstances under s 9D(1) require a holistic assessment of all relevant matters, including the nature of the alleged offending, the risk of witness interference, the likelihood of further serious offending on bail, and the applicant's criminal history.
  • Refusing bail on the s 9D charges, the Supreme Court also refused bail on the remaining charges under the general discretion in s 9B(3) and s 32 of the Bail Act, noting the applicant had allegedly committed multiple offences while already on bail for robbery.
  • The fact that an applicant did not interfere with witnesses before arrest does not, of itself, establish that interference is unlikely if bail is granted.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 9, 9B(3), 9D, 32(1)(a), 32(1)(b), 32(1)(c)(iii), 32(1)(c)(iv)
- Crimes Act 1900 (NSW), ss 33, 33(1)(b), 59(2), 93T, 94, 112, 112(3), 193C(1)
- Criminal Code Act 1995 (Cth), ss 474.15(1), 474.15(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Memery v R [2000] VSC 495
- R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported)
- R v Jacobs [2008] NSWSC 417
- R v Pirini (Supreme Court of New South Wales, McClellan CJ at CL, 8 September 2009, unreported)
- R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported)
- R v Young [2006] NSWSC 1499