Citation: Director of Public Prosecutions (NSW) v Leahy [2014] NSWCCA 279
Court: Court of Criminal Appeal
Date: 28 February 2014
Judges: Hoeben CJ at CL, Adams J, R A Hulme J
Background
The respondent faced charges of causing grievous bodily harm with intent (maximum 25 years imprisonment, standard non-parole period of 7 years) and contravening an apprehended domestic violence order (ADVO). The alleged victim was his partner of six years, with whom he had shared a home in West Albury.
The alleged assault on 4 July 2013 involved the respondent, said to be intoxicated, striking and then repeatedly kicking the complainant in the head while wearing work boots. She ultimately required surgery for a comminuted depressed left zygomatic arch fracture. At the time of the alleged offences, the respondent was subject to an ADVO and three separate good behaviour bonds.
On 25 February 2014, Barr AJ in the Supreme Court granted the respondent conditional bail on strict terms, including a curfew, daily police reporting, a prohibition on entering West Albury, and an agreement to forfeit $5,000. The Director of Public Prosecutions applied to the Court of Criminal Appeal to review that decision.
Legal Issues
- Whether the bail decision of Barr AJ should be revoked on review, conducted as a hearing de novo
- Whether the safety of the complainant could be adequately protected by strict bail conditions, having regard to the respondent's history of domestic violence and repeated breach of court orders
- Whether the respondent's history of compliance with court attendance obligations was sufficient to tip the balance in favour of bail
Decision
R A Hulme J (with whom Hoeben CJ at CL and Adams J agreed) revoked the grant of bail and refused bail. The Court conducted the review as a fresh hearing, consistent with the approach confirmed in R v Petroulias and R v Chehab.
The central concern was the safety of the complainant under section 32(1)(b1)(i) of the Bail Act 1978 (NSW). The Court found the alleged assault particularly grave: repeatedly kicking a person in the head while wearing work boots, in the presence of a 12-year-old child, causing an injury the surgeon described as potentially catastrophic had the blow landed differently. The respondent had also admitted to police that he had previously made threats to kill the complainant.
The respondent's broader history compounded those concerns. He had previously breached an ADVO, repeatedly breached good behaviour bonds, and was subject to multiple orders at the time of the alleged offences. The Court was not persuaded that even the strict conditions imposed by Barr AJ would adequately protect the complainant, particularly given that she was also the principal witness against the respondent in a matter that could result in a significant custodial sentence, creating an additional incentive to interfere with her.
The Court acknowledged that delay in bringing the matter to trial was a legitimate concern and noted that if the matter were not resolved until 2015, the question of bail ought to be revisited in light of the extended pre-trial custody.
Orders Made
- The bail order of Barr AJ made on 25 February 2014 was revoked
- Bail was refused
Key Takeaways
- A review of a bail decision in the Court of Criminal Appeal under section 45(1)(b) of the Bail Act 1978 (NSW) proceeds as a hearing de novo, not a review of the lower court's reasoning for error.
- Refusing bail on safety grounds requires the court to assess whether even strict conditions would adequately mitigate the risk of further harm to the protected person; in this case, no combination of conditions was found sufficient.
- A history of repeatedly breaching court orders, including an ADVO and multiple good behaviour bonds, is a significant factor weighing against bail where complainant safety is in issue.
- The respondent's status as the principal witness against himself in serious proceedings can create an inherent incentive to interfere with the complainant, a factor the court treated as relevant to assessing safety risk.
- Extended pre-trial custody is a legitimate consideration: the Court indicated that if the matter were not resolved until 2015, a further bail application would be appropriate.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), ss 32(1)(b1)(i), 45(1)(b)
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases
- Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331
- R v Chehab [2013] NSWCCA 62
- R v Petroulias [2010] NSWCCA 95