Citation: R v Draca [2015] NSWSC 1150
Court: Supreme Court of NSW
Date: 17 August 2015
Judge(s): RS Hulme AJ
Background
The applicant, a self-employed builder aged approximately 40, was arrested on 17 June 2015 and charged with serious offences arising from an alleged cannabis cultivation operation at a rural property in Narrawa. Police had conducted surveillance of the premises over several months before executing a search warrant in April 2015, locating nearly 300 cannabis plants, around 54 kilograms of cannabis head, and approximately 230 kilograms of cannabis leaf and stems.
The applicant was linked to the operation through intercepted phone calls with a co-accused, in which he received instructions about equipment purchases, and through observations of him attending the premises on two occasions. He had no significant criminal record, had lived with his wife and two school-age children in the Wollongong area for many years, and had run a building business employing six full-time workers for over a decade.
The application came before the Supreme Court in August 2015. By that point, the applicant's wife and a friend had kept the building business running since his arrest, but the friend had advanced around $60,000 on the applicant's behalf and could not continue to do so beyond the date of the hearing.
Legal Issues
- Whether the applicant could satisfy the "show cause" requirement under section 16A(1) of the Bail Act, which applies to certain serious charges and requires the applicant to demonstrate why continued detention is not justified
- Whether, if the show cause threshold was met, admitting the applicant to bail would result in an unacceptable risk under Part 3 Division 2 of the Bail Act
- The proper relationship between the show cause test and the unacceptable risk test, and whether they should be treated as equivalent
Decision
Issue 1: The relationship between the show cause and unacceptable risk tests
The court noted reservations about aspects of McCallum J's reasoning in M v R [2015] NSWSC 138, observing that her Honour's remarks came close to equating the show cause test under section 16A(1) with the unacceptable risk tests in Part 3 Division 2 of the Bail Act (at [9]). The court referred to the Court of Appeal's caution in DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 that those two tests must not be conflated (at [9]). The two inquiries are distinct and sequential.
Issue 2: Unacceptable risk
The Crown largely conceded that, with appropriate conditions in place, the applicant would not present an unacceptable risk in any of the respects contemplated by the Bail Act (at [10]). The applicant's community ties, stable family situation, employment history, and absence of prior criminal history all supported this conclusion.
Issue 3: Show cause
The court did not regard the Crown case as weak, nor did the circumstantial nature of the evidence significantly favour the applicant under the show cause analysis (at [12]). However, the potential loss of the applicant's building business, and the resulting impact on his family's income and his employees, weighed strongly against continued pre-trial incarceration (at [13]). The court reasoned that, where other reasonable options existed, the applicant should not suffer the likely permanent loss of his business before conviction, particularly when conviction remained uncertain (at [13]). On that basis, the court was satisfied that the applicant had shown cause, and that bail on appropriate conditions was warranted (at [14]).
Orders Made
- Bail granted, subject to conditions including: good behaviour; residence at a specified address; regular reporting to police; appearance at court as required; no communication with co-accused or prospective witnesses (except through legal advisers); surrender of passport; no application for a new passport or travel document; entry into a bail agreement to forfeit a specified sum if failing to appear; and provision of a security deposit by an acceptable person.
Key Takeaways
- The Supreme Court confirmed that the show cause requirement under section 16A(1) of the Bail Act and the unacceptable risk tests under Part 3 Division 2 are distinct inquiries that must not be conflated, consistent with the Court of Appeal's warning in DPP (NSW) v Tikomaimaleya (at [9]).
- A Crown concession that appropriate conditions would eliminate unacceptable risk does not automatically resolve the show cause question; the applicant must still demonstrate why continued detention is not justified (at [10]-[12]).
- Serious economic hardship to an applicant's family and employees, and the likely permanent loss of a lawful business prior to any conviction, can constitute compelling circumstances capable of satisfying the show cause threshold (at [13]).
- The circumstantial nature of a Crown case does not, without more, establish that the case is weak, and the court declined to treat it as a factor favouring bail on the show cause analysis in these circumstances (at [12]).
- Where bail conditions proposed by the applicant are not criticised by the Crown, a court may grant bail substantially on those terms, while reserving the right to hear further submissions on the precise details before formal orders are finalised (at [14]).
Legislation and Cases Referenced
Legislation
- Bail Act
Cases
- M v R [2015] NSWSC 138
- DPP (NSW) v Tikomaimaleya [2015] NSWCA 83