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Supreme Court 14 July 2015

R v Boyd

[2015] NSWSC 1065

Assault & violencePublic order & justice offences
CRIMINAL LAW BAIL APPLICATION SHOW CAUSE COMBINATION OF CIRCUMSTANCES LENGTHY REMAND PERIOD STRINGENT BAIL CONDITIONS

Citation: R v Boyd [2015] NSWSC 1065
Court: Supreme Court of New South Wales
Date: 14 July 2015
Judge(s): Hamill J

Background

The applicant faced several serious charges under the Crimes Act 1900 (NSW), including offences under ss 33, 35 and 93(c), arising from an alleged brutal assault on 22 February 2015. The alleged offending involved tracking down and violently attacking a person believed responsible for a break and enter at a co-accused's home, leaving the victim with serious brain injuries and hospitalised in a medically induced coma. The applicant also allegedly impersonated a detective during the same episode.

At the time of the alleged offences, the applicant was on parole for a prior aggravated break and enter conviction, for which he had been sentenced in 2011. That parole period was not due to expire until 22 November 2015. The applicant had an extensive criminal history, including prior offences of violence, breaches of bail, failures to appear, and crimes of dishonesty.

The applicant applied for bail under the Bail Act 2013 (NSW), as amended by the Bail Amendment Act 2014 (NSW). The Crown opposed the application, pointing to the seriousness of the alleged offences, the applicant's criminal history, and the circumstances of the alleged offending.

  • Whether the applicant had satisfied the "show cause" requirement under s 16A of the Bail Act 2013 (NSW), triggered because the alleged offences were committed while he was on parole (s 16B(1)(h))
  • Whether, having shown cause, there remained unacceptable risks under s 19 of the Act, including risks of failing to appear, committing further serious offences, endangering safety, or interfering with witnesses or evidence
  • Whether a combination of factors, rather than a single exceptional circumstance, could satisfy the show cause threshold

Decision

Hamill J held that the applicant had shown cause why his continued detention was not justified. His Honour accepted that the show cause requirement can be satisfied by a combination of factors rather than a single compelling circumstance, citing Johnson J in R v Young [2006] NSWSC 1499 for the proposition that no single element need bear the entire weight of the analysis.

The combination of factors accepted by the Court included: the applicant's presumption of innocence and denial of the charges; the prospect of a very lengthy remand period before any trial date (likely not until 2016); the difficulty in preparing for a complex trial while housed at a correctional centre far from his legal team; family circumstances including four children; qualifications and employment prospects; and available counselling and community support. Hamill J quoted with approval the observations of Sperling J in R v Cain (2001) 121 A Crim R 365, emphasising that an unconvicted person facing two or more years of pre-trial custody raises serious civil liberties concerns.

On the question of unacceptable risk, the Court concluded that the proposed bail conditions were sufficiently stringent to alleviate the identified concerns. Those conditions included daily reporting, a curfew, no alcohol or drugs, no contact with co-accused or prosecution witnesses, and a counselling requirement. The Court was satisfied that no unacceptable risk remained under s 19 with those conditions in place.

Hamill J also noted that nothing in the judgment was intended to influence the Parole Authority's separate consideration of the applicant's parole status, which remained entirely a matter for that body.

Orders Made

  • Bail granted subject to the following conditions:
  • To be of good behaviour
  • To report daily to Windsor Police Station between 9am and 5pm
  • To reside at a specified (redacted) address
  • To appear at Penrith Local Court on 14 August 2015 and as required thereafter
  • Not to consume alcohol or enter licensed premises
  • Not to consume illegal or non-prescribed drugs
  • Not to associate or communicate (except through a lawyer) with named co-accused Joe Bee Abrahams and Matthew Anderson
  • Curfew: not to be absent from residence between 8pm and 6am
  • No contact of any kind (except through a legal representative) with any person identified as a prosecution witness
  • To attend counselling with Tony Dunn once or twice weekly as directed
  • To deposit $2,000 to be forfeited on failure to appear
  • To present at the front door of the residence on direction of a police officer to confirm curfew compliance (subject to reasonable grounds and privacy considerations)
  • To submit to non-invasive drug and alcohol testing on direction of a police officer (subject to reasonable grounds and privacy considerations)

Key Takeaways

  • Under the Bail Act 2013 (NSW) as amended, the show cause requirement in s 16A can be satisfied by a combination of circumstances rather than one single compelling factor, consistent with the approach taken in R v Young [2006] NSWSC 1499.
  • The length of anticipated pre-trial custody remains a weighty consideration in bail applications, even where the alleged offending is extremely serious and the applicant has a significant criminal history.
  • Being on parole at the time of alleged offending triggers the show cause requirement under s 16B(1)(h), but does not automatically preclude bail where sufficient countervailing factors exist.
  • Stringent conditions, including daily reporting, a curfew, alcohol and drug prohibitions, non-association orders, and mandatory counselling, can collectively reduce bail risks to an acceptable level.
  • A Supreme Court bail determination has no bearing on any concurrent parole review proceedings; the Parole Authority conducts its own separate assessment.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), including ss 16A, 16B(1)(h), 18, 19
- Bail Amendment Act 2014 (NSW)
- Crimes Act 1900 (NSW), ss 33, 35, 93(c)

Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- R v Cain (2001) 121 A Crim R 365
- R v Young [2006] NSWSC 1499