Citation: Director of Public Prosecutions (Cth) v Heng [2015] NSWCCA 333
Court: Court of Criminal Appeal of New South Wales
Date: 23 December 2015
Judge(s): Harrison J, R A Hulme J, Fagan J
Background
The accused faced serious Commonwealth drug charges in the District Court: importing a commercial quantity of methamphetamine and conspiring to manufacture a commercial quantity of a controlled drug. He had been in custody since his arrest in July 2013, having initially pleaded guilty before later seeking to withdraw those pleas and proceed to trial, which was scheduled to commence in February 2016.
Hidden J in the Supreme Court granted the accused bail on 17 December 2015, primarily on the basis that inadequate computer access in custody prevented him from reviewing the substantial electronic prosecution brief, including surveillance footage and intercepted communications. The bail conditions imposed were strict, requiring the accused to attend his solicitor's office daily to work through the material.
The Director of Public Prosecutions (Cth) filed a detention application the following day. Under the Bail Act 2013 (NSW), this required the Court of Criminal Appeal to consider the bail question afresh, rather than review Hidden J's decision.
Legal Issues
- Whether the accused had shown cause, on the balance of probabilities, why his detention was not justified under the "show cause" provisions of the Bail Act 2013 (NSW)
- Whether the need to be at liberty to prepare for trial can constitute sufficient cause to justify bail where serious show-cause offences are alleged
- Whether the computer access available to the accused in custody was so inadequate as to render continued detention unjustified
Decision
The Court first established that the accused was required to "show cause" under s 16A of the Bail Act 2013 for several reasons: the offences carried a maximum penalty of life imprisonment, one charge fell within Part 9.1 of the Criminal Code Act 1995 (Cth) concerning importation of a commercial quantity of a serious drug, and both offences were alleged to have been committed while the accused was on parole from an earlier drug supply conviction.
The Court accepted that the considerations making up "bail concerns" under s 17 of the Act, including risk of flight and risk of further offending, are relevant to the show cause threshold. Hidden J himself had described the prosecution case as "strong" and identified real concerns about the accused's appearance at court and risk of further serious offending. The Court of Criminal Appeal found that these factors weighed heavily against the accused having discharged the show cause requirement.
On the central question of trial preparation, the Court examined the accused's actual and anticipated computer access. Between 25 November and 15 December 2015, the accused had been given 32 hours of computer access, including 15 hours in a single week. The Court was satisfied that a comparable amount of access remained available in the roughly eight weeks before trial commenced. Importantly, the Court also found that adequate preparation did not require the accused to review the entirety of the electronic material, including 49 discs of foreign-language recordings available in English translation, in full.
The Court concluded that the accused had not demonstrated his continued custody was unjustified on grounds of trial preparation requirements or otherwise, and accordingly revoked the orders made by Hidden J and refused bail.
Orders Made
- The orders made by Hidden J on 17 December 2015 granting bail were revoked
- Bail for the accused was refused
Key Takeaways
- A detention application under s 75 of the Bail Act 2013 requires the appellate court to consider bail entirely afresh, not to review the primary judge's decision for error.
- Under s 16A and s 16B of the Bail Act 2013, a person charged with certain serious offences, including importation of a commercial quantity of a border controlled drug or offences alleged to have been committed on parole, must show cause why their detention is not justified.
- The bail concern factors in s 17 (such as flight risk and risk of further offending) are not entirely separate from the show cause threshold; the Court of Criminal Appeal confirmed, following Tikomaimaleya, that those considerations may bear on whether detention is justified.
- Claimed necessity to be at liberty for trial preparation can be relevant to show cause, but courts will critically assess whether the actual preparation needs genuinely require liberty rather than improved custodial arrangements.
- Refusing bail, the Court found that projected computer access within the custodial environment was reasonably adequate for trial preparation, particularly where not all electronic material needed to be reviewed in full.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 32, 50, 75
- Criminal Code Act 1995 (Cth), ss 305.3(1), 307.1(1), 11.2(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 27(1)
Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83