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Supreme Court 23 May 2014

R v Alexandridis

[2014] NSWSC 662

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW NEW BAIL ACT UNACCEPTABLE RISK MITIGATION OF UNACCEPTABLE RISKS ONUS OF PROOF

Citation: R v Alexandridis [2014] NSWSC 662
Court: Supreme Court of New South Wales
Date: 23 May 2014
Judge(s): Hamill J

Background

The applicant faced a charge of threatening a person with intent to influence a witness, an offence under s 322(1) of the Crimes Act 1900 (NSW). The charge arose from an incident in January 2014 at a Double Bay address, where the applicant's former partner and her mother resided. The alleged incident involved the applicant entering the premises, discharging a firearm into the floor, and making demands of the occupants.

A judge of the Supreme Court had previously granted the applicant conditional bail in March 2014, imposing non-association, non-communication, residence, and curfew conditions. Those conditions expressly prohibited the applicant from communicating, directly or indirectly, with persons likely to be called as Crown witnesses.

The present application arose after a further incident on 29 April 2014. On that date, individuals wearing balaclavas and carrying hammers attended the Double Bay address while the applicant was in court. A record of interview indicated the timing was deliberate, so that the applicant could not be identified as connected to the approach. The Crown opposed bail.

  • What framework applies under the new Bail Act 2013 (NSW), which had come into operation that week, and how does it differ from the former Bail Act 1978?
  • Whether the applicant posed "unacceptable risks" within the meaning of s 17 of the Bail Act 2013, including risks of interfering with witnesses or committing further serious offences.
  • If unacceptable risks existed, whether those risks could be sufficiently mitigated by the imposition of bail conditions, as required by s 20(1) of the Act before bail can be refused.
  • Who bears the onus of proof under the new Act, and to what standard?

Decision

Hamill J opened by surveying the new Bail Act 2013, which came into operation during the week of the hearing. The Act abolished the previous system of presumptions for and against bail. In their place, a bail authority must now consider whether the accused poses "unacceptable risks" across four categories: failing to appear, committing a serious offence, endangering the safety of victims or the community, or interfering with witnesses or evidence. Section 17(3) sets out an exhaustive list of factors relevant to assessing those risks.

His Honour confirmed that s 20(1) places the onus on the party opposing bail to establish, on the balance of probabilities, that any unacceptable risk cannot be sufficiently mitigated by bail conditions. The fundamental presumption of innocence and the general entitlement of an accused to remain at liberty pending trial were described as continuing principles that the new Act preserves.

On the facts, Hamill J found that the events of 29 April 2014 transformed what had initially appeared to be a weak prosecution case into a strong one. The use of balaclavas, the timing of the visit calculated to coincide with the applicant's court attendance, and the purpose of approaching Crown witnesses combined to satisfy his Honour that the applicant posed an unacceptable risk of interfering with witnesses. The applicant had already been subject to stringent conditions, including what amounted to house arrest, and those conditions had not prevented the conduct in question.

Despite the strength of the applicant's family support and detailed submissions in favour of extremely tight proposed conditions, Hamill J was satisfied on the balance of probabilities that no set of bail conditions could sufficiently mitigate the identified risks. Bail was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • The Bail Act 2013 (NSW) abolished the presumption-based framework of the former Bail Act 1978, replacing it with a requirement that a bail authority assess "unacceptable risks" by reference to the exhaustive list of factors in s 17(3).
  • Under s 20(1), a bail authority may refuse bail only if satisfied that the unacceptable risk cannot be sufficiently mitigated by conditions; the onus of establishing this rests on the party opposing bail, assessed on the balance of probabilities.
  • Fundamental principles of the criminal justice system, including the presumption of innocence and the general entitlement to liberty pending trial, survive the legislative change and continue to inform bail decisions.
  • Where an accused has already breached the spirit of existing bail conditions, particularly conditions designed to prevent witness interference, a court may find that even the most stringent proposed conditions cannot sufficiently mitigate ongoing risks.
  • The length of time an accused is likely to spend in custody if bail is refused remains a specific statutory consideration under s 17(3)(g), consistent with the principle articulated in R v Cain that prolonged pre-trial detention of an unconvicted person is, absent exceptional circumstances, inconsistent with modern civil rights concepts.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 20, 31, 32
- Bail Act 1978 (NSW)
- Crimes Act 1900 (NSW), s 322(1)

Cases:
- R v David Peter Cain (No. 1) (2001) 121 A Crim R 365
- Williams v DPP [2001] 1 QR 99
- Dale v DPP [2009] VSCA 212
- Woods v DPP [2014] VSC 1
- Fardon v Attorney-General (Qld) (2004) 223 CLR 575
- M v M (1988) 166 CLR 69
- Beldon v R [2012] NSWCCA 194