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Supreme Court 28 May 2014

R v Barry

[2014] NSWSC 1970

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW BAIL APPLICATION FOR BAIL BAIL GRANTED WITH CONDITIONS

Citation: R v Barry [2014] NSWSC 1970
Court: Supreme Court of New South Wales
Date: 28 May 2014
Judge(s): Schmidt J

Background

The applicant faced serious charges under the Crimes Act 1900 (NSW), including armed robbery involving a blood-filled syringe, resisting an officer in execution of duty, and escaping police custody. He had been in custody since his arrest in October 2013 and was due for a mention at Wyong Local Court on 11 June 2014.

The bail application had been adjourned while a place in a residential rehabilitation program was sought. By the time of the hearing, the applicant had secured a bed in the Salvation Army Bridge program at Dooralong Transformation Centre, though that place was not available until 2 June 2014.

The Crown opposed bail on the basis that the applicant posed an unacceptable risk in relation to appearance, commission of a serious offence, and the safety of the victim, individuals, and the community.

  • Whether the applicant posed an unacceptable risk within the meaning of the Bail Act 2013 (NSW)
  • Whether bail conditions could sufficiently mitigate any such risks
  • Whether the court could grant bail for a specified future period under s 12(3) of the Bail Act 2013, commencing when the rehabilitation program place became available
  • Whether the proposed arrangement constituted a prohibited accommodation requirement under s 28 or a pre-release requirement under s 29 of the Act

Decision

Schmidt J accepted that the applicant clearly posed the unacceptable risks identified by the Crown, given the serious nature of the charges and the material before the court. However, the court found that those risks could be sufficiently mitigated through the imposition of strict bail conditions tied to participation in the Salvation Army Bridge residential rehabilitation program.

The court applied the risk-assessment framework under the Bail Act 2013, which requires a predictive judgment on the balance of probabilities, having regard to evidence or information considered credible or trustworthy. Relevant factors included the applicant's age and background, his evident drug and alcohol problems, and the rehabilitative benefit the program offered.

A key procedural question concerned the timing of the program placement. The court accepted the parties' common position that s 12(3) of the Bail Act 2013 permits bail to be granted for a specified period, here from 2 June until the applicant ceased participating in the program. Bail would end automatically at that point.

The court also agreed that the proposed arrangement did not amount to an accommodation requirement under s 28 (which is currently available only for children under the Act) or a pre-release requirement under s 29. On that basis, bail was granted on strict conditions.

Orders Made

• Bail granted on strict conditions
• Bail to commence on 2 June
• Bail to continue until the applicant ceases participating in the Salvation Army Bridge program at Dooralong Transformation Centre

Key Takeaways

  • The Supreme Court confirmed that under s 12(3) of the Bail Act 2013 (NSW), a court may grant bail for a specified future period, including one that commences when a rehabilitation program place becomes available rather than immediately upon the hearing.
  • A condition tying the duration of bail to ongoing participation in a residential rehabilitation program does not, of itself, constitute an accommodation requirement under s 28 or a pre-release requirement under s 29 of the Bail Act 2013.
  • Under s 28 of the Bail Act 2013, as it stood at the time of this decision, an accommodation requirement was available only in respect of children, and no regulations existed to extend that provision further.
  • The risk-assessment process under the Bail Act 2013 is a predictive exercise conducted on the balance of probabilities, having regard to credible or trustworthy evidence and the matters specified in s 17(3).
  • Finding that unacceptable risks exist does not foreclose the grant of bail; the court must also assess whether strict conditions can sufficiently mitigate those risks.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 12(3), 17(3), 28, 29
- Crimes Act 1900 (NSW)

Cases cited: None cited in the judgment.