Citation: Afshar v Director of Public Prosecutions (NSW) [2016] NSWCCA 199
Court: Court of Criminal Appeal, NSW
Date: 5 September 2016
Judge(s): Ward JA; Price J; Fagan J
Background
The applicant, a 20-year-old man with no prior criminal record, was charged with three serious offences arising from two separate incidents in September 2015: robbery in company while armed with a dangerous weapon, aggravated robbery causing grievous bodily harm, and multiple counts of dishonestly obtaining a financial advantage. The first robbery involved the use of a taser or stun gun on a victim near Lidcombe train station; the second, eight days later, involved four men violently assaulting another victim who suffered serious injuries. The applicant had been in continuous custody since being charged in November 2015.
A Supreme Court judge refused bail in July 2016. The applicant then brought this release application to the Court of Criminal Appeal under s 49 of the Bail Act 2013 (NSW). The hearing was a fresh consideration of the matter, not a review of the earlier decision.
The applicant proposed an extensive set of bail conditions, including house arrest supervised by his mother, daily reporting to police, surrender of his passport, place restrictions excluding Lidcombe, and a surety of $8,000.
Legal Issues
- Whether the identified bail concerns under s 17(2) of the Bail Act 2013 (NSW) constituted unacceptable risks, specifically:
- Risk of failure to appear
- Risk of committing further serious offences
- Risk of endangering victims, individuals, or the community
- Whether the proposed bail conditions were sufficient to mitigate those bail concerns to an acceptable level
Decision
The Court accepted that bail concerns existed under all three heads in s 17(2) of the Bail Act. The central question was whether those concerns amounted to unacceptable risks, or whether they could be adequately managed through the proposed conditions.
On the risk of flight, the Court noted that the applicant had strong family ties to the community, no prior criminal record, and was unlikely to face trial before mid-2017. However, the severity of the charges and the potential penalties, up to 25 years imprisonment on the robbery counts, weighed against the adequacy of conditions such as a passport surrender and place restrictions in fully addressing that concern.
On the risks of further serious offending and danger to the community, the Court found these could not be adequately met by the proposed conditions. Both offences involved serious, unprovoked violence against strangers selected at random. The close proximity of the two incidents, the escalating nature of the violence, and the use of a weapon in the first robbery all pointed toward an unacceptable risk to public safety that house arrest and supervision by the applicant's mother could not sufficiently neutralise.
The Court acknowledged several factors favouring the applicant: his youth, absence of prior convictions, the fact this was his first period of custody, the potential adverse effects of prolonged pre-trial detention, and the practical importance of being at liberty to prepare his defence. Weighing all those matters against the protection of the public, the Court concluded the balance did not favour release. The application was dismissed.
Orders Made
• Bail application refused
• Applicant to remain in custody
Key Takeaways
- Refusing bail in this case, the Court of Criminal Appeal confirmed that proposed conditions, however comprehensive, will not reduce bail concerns to an acceptable level where the underlying offending is characterised by random, serious violence against members of the public.
- Under the Bail Act 2013 (NSW), the court conducts a balancing exercise that weighs factors favouring the applicant (youth, clean record, family ties, delay to trial) against the need to protect the community; in this case those personal factors did not outweigh the public safety concern.
- A lack of prior criminal convictions and strong community ties are relevant considerations in a bail assessment but are not determinative where the charges involve repeated and escalating violent conduct.
- The strength of the Crown case is a relevant factor under s 18 of the Bail Act: the Court noted that while one victim had not identified the applicant at an identification parade, CCTV footage, phone records, clothing evidence, and the applicant's own admissions combined to form a fairly strong prosecution case.
- Tendency and coincidence evidence, foreshadowed by the Crown under ss 97 and 98 of the Evidence Act 1995 (NSW), was identified as having the potential to further strengthen the Crown case once committal occurred, a factor taken into account in assessing bail concerns.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 49
- Crimes Act 1900 (NSW), ss 96, 97, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Procedure Act 1986 (NSW), s 91
- Evidence Act 1995 (NSW), ss 97, 98
Cases:
- JM v R [2015] NSWSC 978