Citation: R v Tasker (No 2) [2015] NSWSC 467
Court: Supreme Court of New South Wales
Date: 16 April 2015
Judge: Button J
Background
The applicant faced serious drug cultivation charges, including cultivating a commercial quantity of prohibited plants. Because of the nature of those offences, he was required under the Bail Act 2013 (NSW) to "show cause" why his continued detention was not justified, a higher threshold than ordinary bail applications.
The day before this judgment, Button J had indicated a willingness to grant bail. That indication rested on the applicant's minimal criminal history, strong community ties, family awareness of the offence's underlying causes, proposed stringent bail conditions, and a substantial cash surety.
On the same day as that indication, however, the applicant pleaded guilty in another court to possession of an air rifle and to two cannabis cultivation offences, including cultivating a commercial quantity of prohibited plants. Button J was unaware of those developments when he gave his indication. Once informed, he immediately revoked bail and stood the matter over for further submissions, resulting in this judgment.
Legal Issues
- Whether the applicant could still satisfy the "show cause" requirement under the Bail Act 2013 (NSW) following his guilty pleas
- What effect guilty pleas have on a bail application, particularly on the presumption of innocence and the strength of the Crown case
- Whether the applicant's favourable subjective circumstances (family support, sentencing preparation needs, access to psychological assistance) were sufficient to outweigh the changed position
Decision
Button J identified five significant ways in which the guilty pleas had transformed the bail landscape. First, the presumption of innocence no longer applied. Second, any weaknesses or gaps in the Crown case had become irrelevant. Third, the possibility of acquittal, including through a duress defence or a no-bill, was extinguished. Fourth, there was no longer any prospect of conviction on a lesser alternative charge for the most serious offence. Fifth, a substantial term of imprisonment was now, in Button J's view, inevitable rather than merely very likely.
His Honour acknowledged the force of the applicant's submissions in favour of maintaining bail. Those submissions pointed to the lengthy sentencing process, the difficulty of preparing psychological reports in custody, the suboptimal nature of custodial psychological support, unchanged family support, the applicant's awareness that imprisonment was coming, and the absence of any motive to interfere with witnesses now that guilty pleas had been entered.
Despite finding merit in all of those arguments, Button J concluded that the cumulative effect of the changed circumstances meant the applicant could no longer show cause why his detention was not justified. Bail was refused.
Button J also expressed regret to the applicant and his family for the disruption caused by the logistical oversight that had led to the initial indication being given without knowledge of the guilty pleas.
Orders Made
- Bail refused.
Key Takeaways
- A guilty plea fundamentally alters the basis of a bail application under the Bail Act 2013 (NSW): the presumption of innocence falls away, weaknesses in the Crown case become immaterial, and the prospect of acquittal or conviction on a lesser charge is eliminated.
- Entering a guilty plea to a serious offence can transform a previously tentative bail indication into an untenable one, even where the applicant's subjective circumstances remain favourable.
- Under the "show cause" framework, the applicant bears the burden of demonstrating why detention is not justified; the court found that burden could not be met once conviction on serious charges was certain.
- Practical considerations such as difficulty preparing sentencing materials in custody, limited access to psychological support, and family circumstances, while given genuine weight, were insufficient to displace the changed forensic position.
- Button J's ex tempore reasoning illustrates that an indication of bail is not a grant of bail, and can be revisited where material information not before the court at the time of the indication subsequently comes to light.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW)
Cases:
No cases were cited in the judgment.