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9
Supreme Court 22 July 2015

JM v R

[2015] NSWSC 978

Homicide
BAIL CHARGE OF MURDER SHOW CAUSE REQUIREMENT ASSESSMENT OF STRENGTH OF CROWN CASE SELF WHERE APPLICANT YOUNG

Citation: JM v R [2015] NSWSC 978
Court: Supreme Court of New South Wales
Date: 22 July 2015
Judge(s): Garling J

Background

The applicant, a 21-year-old man referred to as JM, was arrested on 23 March 2015 and charged with the stabbing murder of a person referred to as AB. He was taken into custody at arrest and had remained there for approximately 16 weeks at the time the Court delivered its decision.

JM had a prior criminal history consisting of relatively minor offences dealt with in the Children's Court and Local Court. He had never previously been held in custody. He had, however, breached bail conditions on a number of prior occasions, though in each adult instance the relevant Local Court had granted a further bail order rather than refuse bail.

JM applied for bail on 15 April 2015. The Crown opposed the application. The hearing took place on 25 June 2015, with judgment reserved and delivered on 22 July 2015. A suppression order was made over the names of the applicant, the deceased, and witnesses to prevent prejudice to a fair trial.

  • Whether JM had shown cause, under s 16A of the Bail Act 2013, why his detention was not justified, given that murder is a "show cause offence"
  • Whether, if cause was shown, there remained an unacceptable risk under ss 17 and 18 of the Bail Act 2013 that JM would fail to appear, commit a serious offence, endanger the community, or interfere with witnesses
  • Whether any identified bail concerns could be adequately mitigated by conditions

Decision

Murder is a show cause offence under the Bail Act 2013, meaning the applicant bore the onus of demonstrating why his continued detention was not justified before any question of unacceptable risk could be assessed. Garling J found that JM had discharged that onus. Several factors contributed to this conclusion: the strength of the Crown case was qualified by the fact that self-defence was raised by material within the Crown's own evidence; JM was young and had never previously been held in custody; and the anticipated length of time in custody awaiting trial was a relevant consideration weighing in his favour.

The Court then moved to the second stage of the analysis, assessing bail concerns under ss 17 and 18 of the Act. The prior bail breaches were considered but were found to be of limited weight, given that Local Courts had consistently granted further bail after each breach. JM's family support network, including his paternal aunt and uncle in Kempsey who were willing to have him reside with them, provided a meaningful basis for structured conditions.

Garling J was satisfied that no unacceptable risk remained once the proposed bail conditions were applied. The conditions proposed by JM were accepted as sufficient to address concerns about flight, reoffending, community safety, and witness interference. Conditional bail was granted accordingly.

Orders Made

Conduct requirements:
- JM is to be of good behaviour
- JM is to reside at a specified Kempsey address with his aunt and uncle, and nowhere else
- A nightly curfew applies: JM must remain at the address between 8pm and 7am, except in the company of his aunt or uncle
- JM must report to Kempsey Police Station twice daily (7am to 12 noon, and 4pm to 8pm)
- JM must appear at Central Local Court on 4 August 2015 and thereafter as required
- JM must not consume alcohol or enter premises where alcohol is sold
- JM must not take illegal or unprescribed drugs
- JM must not contact, directly or indirectly, any person who has provided a statement to police forming part of the Crown brief
- JM must not go within 500 metres of any international departure point from Australia

Security requirements:
- Two acceptable persons are to deposit $10,000 each, agreeing to forfeit that sum if JM fails to appear in accordance with bail conditions

Pre-release requirements:
- The security deposit condition must be satisfied before JM is released on bail

Enforcement conditions:
- JM must present at the front door of the specified address when directed by a police officer verifying curfew compliance, provided the officer holds reasonable grounds for the direction, having regard to the quiet enjoyment and privacy of the occupants

Key Takeaways

  • Under s 16A of the Bail Act 2013, a person charged with murder must first show cause why detention is not justified before the court proceeds to assess unacceptable risk. These are two distinct and sequential steps.
  • The relative weakness of the prosecution case, particularly where self-defence is raised by material within the Crown's own evidence, is a relevant factor in determining whether the show cause threshold has been met.
  • A history of bail breaches does not automatically defeat a bail application. Where prior courts responded to each breach by granting further bail, that history carries diminished weight in the assessment.
  • The anticipated length of time in pre-trial custody is a matter the court must consider under s 18 of the Bail Act 2013, and an extended wait before trial can support a finding that cause has been shown.
  • Identified bail concerns may be adequately addressed through conditions rather than outright refusal, provided those conditions are sufficiently tailored to the specific risks. In this case, residence with supportive family members, a curfew, twice-daily reporting, and financial security collectively satisfied the court that no unacceptable risk remained.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), particularly ss 8, 16A, 16B, 17, 18, 29, 71
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 95A
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(a)(i)
- Mental Health Act 2007 (NSW)

Cases cited:
- Chau v DPP [1995] 37 NSWLR 639
- Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1
- Clumpoint v DPP [2005] QCA 43
- DPP (Cth) v Germakian [2006] NSWCA 275
- DPP (NSW) v Campbell [2015] NSWCCA 173
- DPP (NSW) v Tikomaimaleya [2015] NSWCA 83
- M v R [2015] NSWSC 138
- R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365
- R v Kugor [2015] NSWCCA 14