Citation: Raad v R [2015] NSWSC 532
Court: Supreme Court of NSW
Date: 12 February 2015
Judge(s): McCallum J
Background
The applicant faced a series of charges arising from an alleged confrontation on 26 April 2014 with the owner of a market where the applicant had previously operated a stall. The most serious charge was possessing an unauthorised prohibited firearm, namely a sawn-off shotgun found in the applicant's possession together with suitable cartridges. The applicant had been in custody since his arrest on that date.
The applicant denied possessing or producing the firearm, telling police it must have been planted in his car by the alleged victim. Since his remand, the applicant's step-daughter and partner had provided statements suggesting that the key independent witness had admitted to lying in his account of the incident.
The Crown opposed release, pointing to inconsistencies in those statements, police concerns about witness interference, and information that the applicant may have had access to a further firearm. The application therefore turned on two distinct questions under the Bail Act 2013: whether the applicant had shown cause why his detention was not justified, and whether there were unacceptable risks warranting refusal.
Legal Issues
- Whether the charge of possessing an unauthorised prohibited firearm under s 71 of the Firearms Act 1996 triggered a show cause requirement under the Bail Act 2013.
- How the show cause requirement interacts with the separate unacceptable risk assessment under s 18 of the Bail Act 2013.
- Whether the applicant had shown cause why his detention was not justified.
- Whether there were unacceptable risks, particularly of witness interference, that could not be adequately addressed by bail conditions.
Decision
Issue 1: Show cause requirement
The charge of possessing a prohibited firearm under s 71 of the Firearms Act 1996 is a serious indictable offence involving the use of a firearm, and accordingly triggered the show cause requirement under the Bail Act 2013 (at [2]). McCallum J observed that the show cause requirement imposes some kind of onus on an applicant but does not require the applicant to also satisfy the unacceptable risk test. The two are discrete tasks, even though in practice a court will often consider them together (at [12]-[16]).
Issue 2: Whether cause was shown
McCallum J held that evidence potentially showing weakness in the Crown case, if accepted, was sufficient to demonstrate that the applicant had shown cause why his detention was not justified (at [24]). Her Honour emphasised that the bar for satisfying the show cause requirement is relatively low, and that satisfying it does not relieve the court of conducting a separate risk assessment (at [24]-[25]).
Issue 3: Unacceptable risk of non-appearance
The risk of non-appearance was not found to be an unacceptable risk. Although the applicant had some history of non-compliance with bail conditions and faced a serious firearms charge carrying a likely custodial sentence, his strong community ties, including his partner and four children, meant that conditions could have adequately addressed this risk if it had been the only concern (at [30]).
Issue 4: Unacceptable risk of witness interference
The applicant's own supporting material revealed an ongoing feud with the alleged victim's family and demonstrated that his step-daughter and partner had already approached the key independent witness to challenge his account. McCallum J found that the applicant residing in the same household as his step-daughter, who was herself a potential witness, posed an unacceptable risk of interference with witnesses or evidence that no conditions could adequately address (at [32]-[34]). Bail was accordingly refused on this ground.
Orders Made
- Release application refused.
Key Takeaways
- Under the Bail Act 2013, the show cause requirement and the unacceptable risk assessment are two distinct tasks. Satisfying one does not inform or discharge the other (at [15]-[16]).
- A relatively low threshold applies to the show cause stage: evidence that, if accepted, would reveal a materially weaker Crown case can be sufficient to demonstrate that an applicant's detention is not justified, without placing on the applicant any burden to disprove unacceptable risk (at [24]).
- Refusing bail, McCallum J found that an applicant's proposed cohabitation with a key potential witness created an unacceptable risk of interference with witnesses or evidence that bail conditions could not adequately mitigate (at [34]).
- Material advanced to show cause can simultaneously support a finding of unacceptable risk where it reveals patterns of conduct, such as direct approaches to witnesses, that raise interference concerns (at [26], [32]-[33]).
- Where delay in proceedings is significant but bail cannot be granted due to unacceptable risk, the court may note that a further application under s 74 of the Bail Act 2013 could become available if circumstances change, for example when a likely trial date becomes known (at [34]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) – ss 16A, 17(2)(d), 18, 18(1)(h),
- Firearms Act 1996 – s 71
Cases
- Not stated