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Court of Criminal Appeal 8 June 2016

Singh v R

[2015] NSWCCA 257

Assault & violenceTheft & property
CRIMINAL LAW BAIL FIRST APPLICATION FOR RELEASE REFUSED BAIL GRANTED ON SECOND APPLICATION

Citation: Singh v R [2015] NSWCCA 257
Court: Court of Criminal Appeal, NSW
Date: 8 June 2016
Judge(s): Macfarlan JA

Background

The applicant, a 19-year-old with no prior convictions, was arrested in February 2015 and charged with aggravated robbery under s 95(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years imprisonment. He had been at liberty on bail for a separate drug supply offence at the time of his arrest, which engaged the "show cause" threshold under the Bail Act 2013 (NSW). His first bail application was refused by Wilson J in August 2015.

The alleged conduct involved a sustained course of intimidation and demands for money directed at a former schoolfriend, culminating in an assault and the taking of the victim's mobile phone in the early hours of 4 February 2015. The victim was also subjected to threats involving photographs of firearms.

By the time the second application was heard in October 2015, the Crown had withdrawn the aggravated robbery charge and replaced it with a series of less serious charges triable summarily before a Magistrate. The applicant remained in custody.

  • Whether the applicant could bring a second bail application under s 49 of the Bail Act 2013, and if so, whether there had been a material change in circumstances justifying a fresh hearing.
  • Whether the applicant had satisfied the "show cause" requirement under s 16A of the Bail Act 2013, given he was on bail for another offence at the time of the alleged conduct.
  • Whether any bail concerns arising from the application could be sufficiently addressed by conditions.

Decision

The Court heard the application de novo, consistent with the approach confirmed in R v Kugor [2015] NSWCCA 14. The Crown appropriately conceded that the withdrawal of the aggravated robbery charge and its replacement with lesser summary offences represented a substantial change in circumstances, strengthening the applicant's position on the show cause question.

The Court was satisfied that the applicant had shown cause under s 16A. Several factors weighed in his favour: the substantially reduced maximum penalties available on the substituted charges, his young age, his absence of any prior criminal record, his first time in custody, close family support, and the prospect that he would spend up to a year on remand before the matters were finalised, in circumstances where the maximum penalty for any single charge was two years imprisonment.

The Court acknowledged that the proposed release gave rise to genuine bail concerns, principally regarding the safety of the victim and other Crown witnesses. However, it concluded that those concerns could be adequately managed through a structured set of conditions, including a residential requirement, a nightly curfew subject to police compliance checks, a surety, prohibition on contact with the victim and prosecution witnesses, and surrender of the applicant's passport.

Orders Made

  • The application for release is granted.
  • The applicant is to be released on conditions, including: appearance at Liverpool Local Court as required; residence at a specified address; a nightly curfew (8 pm to 6 am); a surety of $2,000; police compliance checks for the curfew; no contact with the victim or Crown witnesses; surrender of passport; and no application for any new passport or travel document.

Key Takeaways

  • A downgrading of charges from a serious indictable offence to lesser summary offences can constitute a material change in circumstances sufficient to support a second bail application under s 49 of the Bail Act 2013.
  • Under the show cause framework in s 16A, the reduced sentencing exposure on substituted charges is a relevant consideration, particularly where the period already spent or likely to be spent on remand approaches the maximum penalty available.
  • Bail concerns about witness safety do not automatically preclude release; the Court of Criminal Appeal confirmed that such concerns can be addressed through appropriately tailored conditions rather than continued detention.
  • A second bail application under the Bail Act 2013 is heard de novo, meaning the court considers the matter afresh rather than merely reviewing the earlier decision.
  • Factors personal to an applicant, including youth, absence of prior convictions, first time in custody, and strength of family support, remain relevant to the overall bail assessment even where a show cause requirement applies.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16(1)(h)(i), 16A, 18, 49
- Crimes Act 1900 (NSW), s 95(1)

Cases:
- R v Kugor [2015] NSWCCA 14
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83