Citation: R v Fesus [2014] NSWSC 770
Court: Supreme Court of New South Wales
Date: 16 June 2014
Judge(s): Adams J
Background
The applicant, a 41-year-old man, faced a charge of murdering his wife. The alleged offence occurred in August 1997, with the deceased's body found in a shallow grave at Seven Mile Beach near Gerroa approximately a month after her last known contact with family. Decomposition had prevented the pathologist from establishing the mechanism of death.
Two previous bail applications in the Supreme Court, made in October and December 2013, had both been refused. Those applications were decided under the Bail Act 1978 (NSW), which required the applicant to establish "exceptional circumstances" to obtain bail on a murder charge.
The present application was brought under the newly commenced Bail Act 2013 (NSW), which introduced a materially different test. New information not presented in the previous applications was also relied upon to satisfy the threshold for making a fresh application.
Legal Issues
- Whether the threshold under section 74 of the Bail Act 2013 (NSW) for bringing a fresh bail application was satisfied, given that bail had twice been refused
- Whether, applying the unacceptable risk test under section 17 of the Bail Act 2013 (NSW), the applicant posed an unacceptable risk warranting continued detention
Decision
Issue 1: Threshold for a fresh application under s 74
Under section 74 of the Bail Act 2013, a further bail application is permitted where information relevant to the grant of bail is to be presented that was not before the court on the previous application. Adams J characterised this threshold as a low one: relevance of the new information is sufficient, and it need not be convincing, decisive, or weighted at any particular level of significance. It must, however, be capable of influencing the decision. The applicant satisfied this threshold on the basis of new information that bore on the strength of the prosecution case.
Issue 2: The unacceptable risk test under s 17
The Bail Act 2013 replaced the "exceptional circumstances" test with an unacceptable risk framework. A bail authority must consider whether, if released, an accused person would fail to appear, commit a serious offence, endanger the safety of victims or the community, or interfere with witnesses or evidence. Adams J noted that many of the relevant factors under the new Act, including the presumption of innocence, the general right to liberty, and the seriousness of the offence, had always been relevant considerations; what changed was their relative weight in the overall assessment.
The core reasoning on the strength of the prosecution case and the weighing of section 17 factors was redacted from the published version of the judgment to avoid prejudicing the forthcoming trial. Adams J stated that the full unredacted reasons were made available to the Attorney-General.
Conclusion
On the balance of probabilities, Adams J was satisfied that the applicant did not present an unacceptable risk across any of the four risk categories identified in section 17(2). Conditional bail was granted, subject to a substantial set of reporting, residential, and travel conditions.
Orders Made
- Conditional bail granted
- The non-publication order varied to permit publication of the full unredacted judgment to the Attorney-General
- A redacted version of the reasons published in the form of an appendix to the judgment
Key Takeaways
- The Bail Act 2013 (NSW) introduced a materially different test for bail decisions, replacing the "exceptional circumstances" requirement for murder charges with an unacceptable risk framework that the Supreme Court found more favourable to this applicant.
- Under section 74 of the Bail Act 2013, the threshold for bringing a further bail application after prior refusals is low: new information need only be relevant and capable of influencing the decision; it need not be decisive or particularly weighty.
- Adams J confirmed that many considerations under the Bail Act 2013, including the presumption of innocence, the right to liberty, and the seriousness of the offence, were not genuinely new; rather, the new Act altered the significance those factors carry in the overall assessment for certain charge categories.
- Where a bail judgment necessarily discloses a judicial view about the strength of a prosecution case, non-publication orders may be appropriate to protect trial integrity, and a court may publish only a redacted version while making full reasons available to the Attorney-General.
- Bail on a murder charge remained subject to extensive conditions, including twice-daily reporting to police, residential restrictions, a prohibition on approaching prosecution witnesses, and a bar on accessing international departure points.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW)
- Bail Act 2013 (NSW)
Cases
- Not stated