Citation: Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258
Court: Supreme Court of New South Wales
Date: 24 August 2015
Judge: R A Hulme J
Background
The applicant faced two separate bail matters heard together. The primary matter involved nine counts in a proposed District Court indictment, including multiple allegations of sexual assault against three complainants between 2008 and 2013. The alleged offences followed a pattern in which the applicant advertised employment positions, invited women to attend his business premises, and then allegedly committed sexual offences against them. The trial was listed to commence within one week of the hearing.
The second matter concerned an offence of larceny as a bailee, involving the alleged unlawful retention of a motor vehicle. That matter was the subject of pending judicial review proceedings in the Court of Appeal, following unsuccessful appeals before a magistrate and a District Court judge.
A Supreme Court judge had already refused bail in the sexual assault matter in November 2014. The applicant sought a further release application, relying in part on newly received audio recordings in which one of the complainants appeared to withdraw or deny her complaint.
Legal Issues
- Whether the applicant could bring a further bail release application in the sexual assault matter after a prior refusal, given the restrictions in section 74 of the Bail Act 2013 (NSW)
- Whether the applicant had established "show cause" as required under section 16B of the Bail Act, given that several of the alleged offences were committed while the applicant was already on bail
- Whether, if the show cause threshold was met, the applicant posed an unacceptable risk warranting continued detention
- Whether bail should be granted in the larceny as a bailee matter pending the outcome of judicial review
Decision
Further application threshold (s 74): Hulme J was satisfied that the applicant had identified at least one item of genuinely new material, specifically audio recordings from the third complainant that the applicant had only received on 10 August 2015. This brought the application within section 74(3)(b) of the Bail Act, allowing the court to hear it despite the prior refusal by Blackmore AJ in November 2014.
Show cause (s 16B): The alleged offences in counts 6 to 9 were committed while the applicant was on bail in the larceny matter. This triggered the show cause requirement under section 16B(1)(h)(i). His Honour found the applicant had not discharged that obligation, noting a history of non-compliance with conditions of conditional liberty and evidence suggesting the applicant had intimidated complainants, including fabricating a text message from a complainant's phone while it was in his possession.
Unacceptable risk: Even setting aside the show cause issue, Hulme J found that the applicant presented an unacceptable risk of committing a serious offence, interfering with witnesses or evidence, or endangering the safety of individuals. The court placed considerable weight on the applicant's credibility difficulties, the seriousness of the allegations, the pattern of conduct disclosed by five additional witnesses, and evidence of the applicant's capacity to manipulate complainants. The proximity of the trial date and the possibility of imposing conditions did not alter that assessment.
Larceny as bailee matter: The non-parole period for the sentence in this matter was due to expire in approximately one month. Because the applicant remained in custody on the sexual assault matter, there was no practical utility in granting bail. The prospects of success in the judicial review proceedings were not strong, given two prior judicial determinations against the applicant and the implicit findings of fraud in the District Court judgment. Bail was refused in this matter as well.
Orders Made
- Bail refused in the sexual assault matter
- Bail refused in the larceny as a bailee matter
Key Takeaways
- Under section 74(3)(b) of the Bail Act 2013, a court can hear a further release application after a prior refusal where the applicant identifies genuinely new material; the receipt of previously unavailable recordings satisfied that threshold here.
- A person charged with serious indictable offences allegedly committed while on bail must show cause why continued detention is not justified under section 16B(1)(h)(i), and a history of non-compliance with conditional liberty weighs heavily against satisfying that requirement.
- Evidence of witness intimidation and manipulation, including a fabricated text message sent from a complainant's phone while it was in the applicant's possession, formed part of the court's unacceptable risk assessment.
- Refusing bail, the court treated the proximity of trial as insufficient on its own to reduce the risk to an acceptable level, particularly given the seriousness of the charges and the pattern of conduct disclosed in the evidence.
- Where an applicant is already in custody on a separate matter and a non-parole period is due to expire imminently, the practical utility of granting bail in the second matter may be absent, as was the case here with the larceny as a bailee proceedings.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16B, 19, 74
Cases:
- Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261 (related Court of Appeal decision referring the applications to the Common Law Division)