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Supreme Court 16 July 2015

R v Farrell

[2015] NSWSC 1082

Sexual offences
BAIL DETENTION APPLICATION SHOW CAUSE REQUIREMENT RISK OF REOFFENDING

Citation: R v Farrell [2015] NSWSC 1082
Court: Supreme Court of NSW
Date: 16 July 2015
Judge: McCallum J

Background

The respondent, a former Catholic priest, faced a large number of sexual offences alleged to have been committed both before and after his ordination. Charges were first laid in 2012 and 2013, with a further series brought in June 2015. He had been on bail throughout, and there was no suggestion he had failed to comply with what the court described as relatively onerous bail conditions over approximately three years.

In respect of the earlier charges, the respondent had indicated guilty pleas to 43 matters committed for sentence in the District Court, with a further 11 transferred there by statute. A separate group of charges remained listed for trial, and the most recently laid charges were still before the Local Court.

Following the most recent grant of bail on 30 June 2015, the prosecutor brought a detention application. McCallum J determined that application in this judgment.

  • Whether the respondent could satisfy the "show cause" requirement under s 16A of the Bail Act 2013 (NSW), which applies to certain serious offences and requires the accused to show why detention is not justified.
  • Whether the respondent posed an unacceptable risk of committing a serious offence if released on bail, as assessed under ss 17 and 18 of the Act.
  • What weight should be given to the respondent's history of bail compliance, his indicated guilty pleas, and his available residential arrangements.
  • How the show cause requirement and the unacceptable risk test interact, following the Court of Appeal's decision in R v Tikomaimaleya [2015] NSWCA 83.

Decision

McCallum J applied the two-stage framework confirmed by the Court of Appeal in Tikomaimaleya: first, whether the respondent had shown cause why his detention was not justified; second, whether there was an unacceptable risk of reoffending. The court noted that while the two tests must not be conflated, the considerations relevant to each overlapped significantly on the facts of this case.

On the risk of failure to appear, the court accepted that the growing number of charges might theoretically increase incentive to flee, but found that three years of consistent compliance with bail conditions gave confidence this was not the critical concern. The more serious question was the risk of the respondent committing a further serious offence while at liberty.

The court found that the respondent's admitted guilt in respect of a large number of serious sexual offences, involving victims including his own nieces and altar boys under his supervision, established a relevant risk of reoffending. McCallum J characterised the offending as reflecting a proclivity for manipulative and sexually violent conduct. The court also noted the absence of any evidence that the respondent had sought treatment or counselling to address that proclivity, notwithstanding the lengthy period he had been on bail.

The court also considered the respondent's residential circumstances. His prior arrangement involved residing with another man whose presence the Crown submitted was itself a concern. When that issue was raised, the respondent's alternative options were limited to staying temporarily with an 81-year-old woman in Tamworth or living alone in rental premises. Neither arrangement offered the kind of structured moral and social support capable of giving comfort that future offending would be avoided. The respondent had not satisfied the court on the balance of probabilities that available bail conditions could adequately address the identified bail concerns. Accordingly, bail was revoked.

Orders Made

  • The prosecutor's detention application was granted.
  • The respondent's bail was revoked.

Key Takeaways

  • Refusing bail under the Bail Act 2013 (NSW), the court confirmed that where a show cause requirement applies, the onus rests on the accused to demonstrate on the balance of probabilities that detention is not justified, and that any reasonably available bail conditions would adequately address the identified bail concerns.
  • The show cause requirement and the unacceptable risk test are distinct and must not be conflated, but as Tikomaimaleya makes clear, the same factual matters may be relevant to both inquiries.
  • An accused person's admitted guilty pleas to serious offences can directly inform the risk assessment under s 18, allowing the court to treat the applicant as an admitted offender rather than merely an accused person when evaluating the strength of the prosecution case.
  • A lengthy history of compliance with bail conditions does not, without more, satisfy the show cause requirement or displace a finding of unacceptable risk where the nature of the admitted offending raises a serious reoffending concern.
  • The absence of any evidence of treatment or counselling to address the conduct underlying serious admitted offences is a relevant factor weighing against a finding that bail conditions can adequately manage the risk of reoffending.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 8, 16A, 17, 18, 20A, 32, 50
- Civil Procedure Act 2005 (NSW), s 166
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v M [2015] NSWSC 158
- R v Tikomaimaleya [2015] NSWCA 83