Citation: R v Abdallah (No 4) [2015] NSWSC 2157
Court: Supreme Court of New South Wales
Date: 24 April 2015
Judge(s): Adamson J
Background
The offender had been convicted by a jury of manslaughter following a trial in the Supreme Court. She had been on bail since June 2013 and remained on bail after the jury returned its verdict at the end of February 2015. The sentence hearing was scheduled for 24 April 2015.
On the eve of the hearing, the Crown received a medical report stating that the offender was suffering from severe anxiety and panic attacks and was "currently unable to attend court and give evidence." Shortly after receiving that report, the Crown gave notice to the offender's legal representatives that it would bring a detention application under s 50(1) of the Bail Act 2013 (NSW).
On the morning of the hearing, the offender arrived at court approximately 15 minutes late, travelling by public transport from her bail residence. Adamson J heard the Crown's detention application on that day.
Legal Issues
- Whether the Crown had given the offender reasonable notice of the detention application, as required by s 50(5) of the Bail Act 2013.
- Whether a bail concern existed under s 17(2) of the Bail Act 2013, specifically whether there was an unacceptable risk that the offender would fail to appear at the sentence hearing or would commit a serious offence while at liberty.
- Whether, having regard to the factors in s 18(1) of the Bail Act 2013, any bail condition could reduce that risk to an acceptable level.
Decision
Reasonable notice of the application. Adamson J was satisfied that the notice given to the offender's legal representatives on the afternoon before the hearing was reasonable in all the circumstances. The offender and her representatives were already on notice that they were required to appear that day for the sentence hearing.
Risk of committing a serious offence. The Crown pressed two bail concerns: risk of non-appearance and risk of committing a serious offence. Adamson J rejected the second concern. Although the offence for which the offender had been convicted was serious and involved violent conduct, the court was not satisfied there was a substantial risk she would commit a further serious offence if at liberty.
Risk of non-appearance. Adamson J was firmly satisfied that a bail concern under s 17(2)(a) existed. The offender had failed to arrive on time for a mention hearing on 27 February 2015. She arrived approximately 15 minutes late on the morning of the detention application itself, in a distressed state. The medical report raised doubt about her capacity to attend at a resumed hearing.
Assessment under s 18. Adamson J weighed the relevant factors under s 18(1): the gravity of manslaughter as an offence, the conclusiveness of the jury's guilty verdict, the offender's admitted methamphetamine use shortly after her release to bail in 2013 and the consequent reckless and self-destructive behaviours, and the near-certainty of a custodial sentence. Taken together, those factors led to the conclusion that no bail condition could reduce the risk of non-appearance to an acceptable level. Bail was revoked accordingly.
Orders Made
- Bail revoked; the Crown's detention application granted.
Key Takeaways
- Under s 50(1) of the Bail Act 2013, the Crown may apply to revoke bail after conviction, and notice given to defence representatives on the eve of a scheduled court appearance can satisfy the reasonable notice requirement in s 50(5) where those representatives were already on notice of the hearing.
- A bail concern under s 17(2)(a) (risk of non-appearance) can be established by a pattern of late or uncertain attendance, combined with medical evidence casting doubt on the accused's ability to attend future proceedings.
- The Supreme Court distinguished the two bail concerns pressed by the Crown, accepting the non-appearance concern but declining to find a substantial risk of further serious offending, illustrating that each concern must be assessed independently on its own facts.
- History of non-compliance with bail conditions, including substance abuse admitted in a pre-sentence report, is a material consideration under s 18(1)(f) of the Bail Act 2013.
- Where a custodial sentence is near-inevitable following a manslaughter conviction, the likelihood of imprisonment weighs heavily in the s 18 assessment and may reinforce the risk of non-appearance.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17, 17(2)(a), 17(2)(b), 18(1), 18(1)(b), 18(1)(c), 18(1)(f), 18(1)(i), 18(1)(l), 50(1), 50(5)
Cases: No cases were cited in the judgment.