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11
Court of Criminal Appeal 10 June 2016

Trinh v R

[2016] NSWCCA 110

Fraud & dishonesty
CRIMINAL LAW PROCEDURE BAIL BAIL REFUSED BY JUDGE OF SUPREME COURT NATURE OF APPLICATION ASSESSMENT OF BAIL CONCERNS

Citation: Trinh v R [2016] NSWCCA 110
Court: Court of Criminal Appeal, NSW
Date: 10 June 2016
Judges: Basten JA; McCallum J; Davies J

Background

The applicant was arrested on 22 July 2015 and charged with 158 serious indictable offences involving computer fraud. Bail was refused by the Burwood Local Court shortly after arrest. A subsequent application to a single judge of the Supreme Court (Schmidt J) was also refused in November 2015.

The applicant then filed a further release application directly with the Court of Criminal Appeal in December 2015. Because the prohibition on multiple applications to the same court under s 74 of the Bail Act 2013 (NSW) prevented a further application to a single Supreme Court judge, the applicant invoked the CCA's jurisdiction under s 67 of that Act.

The applicant's solicitor indicated that the trial was unlikely to conclude until the second half of 2017 or early 2018, meaning the applicant faced a potential period of two or more years in pre-trial custody.

  • Whether the Court of Criminal Appeal had jurisdiction to hear a bail application following a refusal by a Supreme Court judge, and what the nature of that jurisdiction was
  • Whether the word "may" in s 67 of the Bail Act 2013 conferred a discretion to decline to hear the application, or imposed an implied duty to hear it once jurisdiction was engaged
  • Whether a further application was permissible given the prohibition on multiple applications in s 74
  • Whether, on the merits, the identified bail concerns (risk of failure to appear and risk of committing further serious offences) amounted to unacceptable risks justifying continued detention

Decision

Jurisdiction and the nature of the hearing

The Court worked through the four divisions of Part 6 of the Bail Act 2013, which allocates bail jurisdiction across different courts on a hierarchical basis. The CCA's jurisdiction arose under s 67(1)(e), because a bail decision had already been made by the Supreme Court. The Court examined whether the word "may" in s 67 conferred an unfettered discretion to decline the application or whether an implied duty to hear arose once the jurisdictional precondition was met. Read alongside s 75, which provides that any bail application "is to be dealt with as a new hearing," the Court concluded that the proper course was to proceed to hear the application on its merits rather than dismiss it on the basis that a superior court had already considered it.

The prohibition on multiple applications

Section 74 bars repeat release applications to the same court unless specified grounds exist, such as new material information or a change in circumstances. Because the CCA is a different court from the Supreme Court single-judge division, s 74 did not bar this application. However, the Court noted that Beech-Jones J in DPP v Mawad had expressed concern that the Act appeared to require the CCA to conduct a fresh review even after bail had been considered by two levels of the court system, and the judgment engaged with that concern as a matter of statutory construction.

The merits: bail concerns and unacceptable risk

Applying the Bail Act 2013 framework, the Court assessed whether the identified bail concerns rose to the level of unacceptable risk. The relevant concerns were the risk of failure to appear and the risk of committing further serious offences. The Court acknowledged that pre-trial detention for what could amount to two or more years was a matter of considerable significance, and accepted that depriving an unconvicted person of liberty for a lengthy period is a very serious matter. However, those concerns were outweighed by the combined weight of the following factors: the number and seriousness of the charges (158 fraud offences), the nature of the alleged offending, the amounts involved, the strength of the Crown case, the applicant's prior criminal record, and what the Court described as the entirely unsatisfactory nature of the proposed bail arrangements involving the applicant's family.

The Court concluded that there was an unacceptable risk that the applicant would fail to appear and would continue to commit serious offences. Bail was refused.

Orders Made

• Bail is refused

Key Takeaways

  • The Court of Criminal Appeal's jurisdiction to hear a bail application under s 67(1)(e) of the Bail Act 2013 is engaged where a bail decision has been made by the Supreme Court, even where that decision followed an earlier refusal by a lower court.
  • Section 75, which requires that any bail application "is to be dealt with as a new hearing," points toward an obligation to engage with the merits rather than a discretion simply to refuse to hear the application on the basis that it has already been considered at lower levels.
  • Under the Bail Act 2013, the prohibition on multiple applications in s 74 operates within the same court; it does not prevent an application being made to a different, higher court in the judicial hierarchy.
  • Lengthy pre-trial detention of an unconvicted person is a factor of considerable weight in the bail assessment, but it does not override other bail concerns and remains one consideration within the overall unacceptable risk analysis.
  • Refusing bail in this case, the Court found that the seriousness of 158 fraud charges, the strength of the Crown case, the applicant's criminal history, and unsatisfactory proposed bail arrangements collectively constituted unacceptable risks of non-appearance and further serious offending.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 5, 17, 18, 19, 44, 56, 59, 61, 64, 65, 67, 71, 72, 73, 74, 75; Pt 6, Divs 1–4; Sch 3, cl 11
- Bail Act 1978 (NSW), ss 14, 62
- Interpretation Act 1987 (NSW), s 9
- Crimes Act 1900 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19, 20
- Evidence Act 1995 (NSW)
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 91

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- R v Kugor [2015] NSWCCA 14
- Shalala v R [2012] NSWSC 351
- Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
- Norbis v Norbis (1986) 161 CLR 513
- Ward v Williams (1955) 92 CLR 496