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Supreme Court 22 May 2014

R v Lago

[2014] NSWSC 660

Theft & propertyFirearms & weapons
CRIMINAL LAW BAIL UNACCEPTABLE RISK MITIGATION OF RISK ONUS OF PROOF

Citation: R v Lago [2014] NSWSC 660
Court: Supreme Court of New South Wales
Date: 22 May 2014
Judge(s): Hamill J

Background

The applicant faced a series of extremely serious charges arising from an alleged home invasion in March 2014, including a specially aggravated break and enter offence under s 112(3) of the Crimes Act 1900 (NSW) and multiple firearms offences under the Firearms Act 1996 (NSW). He had been in custody since the day after the alleged offence and bail had already been refused by the Local Court. His case was listed for mention in Wollongong Local Court in early June 2014.

The applicant applied for bail before the Supreme Court via video link from South Coast Correctional Centre. The Crown accepted that, if bail were refused, the applicant would likely remain on remand for at least a year before trial, given that the brief was incomplete and DNA evidence was still being sought.

Significantly, this application was among the first to be determined under the Bail Act 2013 (NSW), which came into operation just days before the hearing. The decision therefore required the Court to work through the new statutory framework from the ground up.

  • Whether the new Bail Act 2013 (NSW) places an onus of proof on either party when a court assesses unacceptable risk under s 17
  • Whether an unacceptable risk existed in this case, applying the s 17 framework
  • Whether, if an unacceptable risk was found, proposed bail conditions could sufficiently mitigate that risk so as to preclude a refusal of bail under s 20

Decision

Hamill J provided detailed reasons explaining the structure of the new Act. The old Bail Act 1978 (NSW) operated through a complicated series of presumptions. The 2013 Act replaces that framework with a two-stage process: first, the bail authority assesses whether any "unacceptable risk" exists under s 17, by reference to an exhaustive list of factors; second, if an unacceptable risk is found, the authority may only refuse bail if satisfied under s 20 that the risk cannot be sufficiently mitigated by the imposition of bail conditions.

On the question of onus, Hamill J declined to decide definitively whether the prosecution bears the burden at the s 17 stage, noting it may not matter in practice because the matter is determined on the balance of probabilities. His Honour was clear, however, that the onus at the s 20 stage falls squarely on the party opposing bail. That party must satisfy the court, on the balance of probabilities, that no conditions can sufficiently mitigate the identified risk.

Applying s 17, Hamill J found that an unacceptable risk did exist, specifically a risk that the applicant would commit a serious offence and endanger the safety of witnesses and the victim. The primary basis for that finding was the serious and violent nature of the alleged offending and the applicant's possession of a firearm (though not one connected to the alleged crime).

Despite finding an unacceptable risk, Hamill J was not satisfied that the risk could not be mitigated. The applicant's legal representative proposed a detailed package of conditions, which the Court accepted as sufficient. Bail was therefore granted, subject to strict conduct and enforcement conditions.

Orders Made

• Bail granted with conduct conditions pursuant to s 25 of the Bail Act, including:
- Conditions as to where the applicant will live
- Curfew
- Requirement not to associate with certain named individuals
- Daily reporting to police
- No contact whatsoever with any witnesses
- Requirement not to go within a certain distance of relevant locations

• Enforcement conditions pursuant to s 30 of the Bail Act, including:
- Permission for police to attend on premises
- Requirement to present himself to ensure compliance with curfew
- Proviso that police will only act where they believe on reasonable grounds it is necessary, having regard to rights of other occupants to peace and privacy

• No security requirements imposed

Note: The judgment directs readers to the court file for the full list of bail conditions. The key elements recorded in the judgment are set out below.

  • Conduct conditions including a specified residential address, a curfew, daily reporting to police, no association with named individuals, no contact with witnesses, and exclusion zones around relevant locations
  • Enforcement conditions permitting police to attend the applicant's premises to verify curfew compliance, subject to a proviso that police act only where they hold reasonable grounds to believe it is necessary, having regard to the rights of other occupants
  • No security (surety) requirement imposed, as the Court was not satisfied the applicant posed an unacceptable risk of non-appearance under s 26(5)

Key Takeaways

  • The Bail Act 2013 (NSW) replaced the presumption-based framework of its predecessor with a two-stage risk assessment: first, whether an unacceptable risk exists under s 17; and second, whether that risk can be sufficiently mitigated by conditions under s 20.

  • Under s 17(3), the factors a bail authority may consider in assessing unacceptable risk are exhaustive. No factor outside that list may be taken into account.

  • The onus at the s 20 stage rests on the party opposing bail. That party must establish, on the balance of probabilities, that no bail conditions can sufficiently mitigate the unacceptable risk that has been identified. Refusal of bail is only available where that threshold is met.

  • Hamill J left open whether any onus operates at the s 17 stage, noting the matter is resolved on the balance of probabilities and that the more significant onus question arises at s 20.

  • Security conditions (surety requirements) cannot be imposed unless the court finds an unacceptable risk of non-appearance under s 26(5). Hamill J noted, in passing, that this constraint presented something of a problem in the legislation.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 18, 19, 20, 25, 26, 30, 32, 49, 50
- Bail Act 1978 (NSW)
- Crimes Act 1900 (NSW), s 112(3)
- Firearms Act 1996 (NSW)
- Evidence Act 1995 (NSW), s 165

Cases
- Beldon v R [2012] NSWCCA 194
- Cain (No 1) (2001) 121 A Crim R 365
- Dale v Director of Public Prosecutions [2009] VSCA 212
- Fardon v Attorney-General (Qld) (2004) 223 CLR 575
- M v M (1998) 166 CLR 69
- Application of Haidy [2004] VSC 247
- Williamson v Director of Public Prosecutions (2001) 1 Qd R 99
- Woods v Director of Public Prosecutions [2014] VSC 1