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Court of Criminal Appeal 26 October 2016

R v Marcus

[2016] NSWCCA 237

Assault & violenceFirearms & weaponsPublic order & justice offences
BAIL ACT 2013 DETENTION APPLICATION BY CROWN ATTEMPTED MURDER AND A FIREARM OFFENCE LIKELY DELAY BEFORE TRIAL NOT EXCESSIVE STRONG CROWN CASE “SHOW CAUSE” TEST NOT MADE OUT

Citation: R v Marcus [2016] NSWCCA 237
Court: Court of Criminal Appeal (NSW)
Date: 26 October 2016
Judges: Hoeben CJ at CL; R A Hulme J; Wilson J

Background

The respondent faced three serious charges: shooting at a person with intent to murder (maximum 25 years), discharging a firearm with intent to cause grievous bodily harm (maximum 25 years), and knowingly directing the activities of a criminal group (maximum 14 years). The Crown alleged he was a senior member of an Assyrian criminal gang called "DLASTHR" and participated in a joint enterprise to kill a member of a rival gang in the early hours of 16 March 2016, during a car chase in western Sydney.

A Supreme Court judge had granted the respondent conditional bail on 13 October 2016. The Crown then brought a Detention Application under s 50 of the Bail Act 2013, asking the Court of Criminal Appeal to revoke that grant and order the respondent's continued detention.

At the conclusion of hearing on 21 October 2016, the Court ordered bail revoked and the detention order made. This judgment provides the reasons for that decision.

  • Whether a "principle of restraint" applies when the Court of Criminal Appeal hears a Detention Application after a single Supreme Court judge has already granted bail
  • Whether the respondent had satisfied the "show cause" requirement under s 16A of the Bail Act 2013, given the charges involved a firearm and fell within Part 3 of the Crimes Act 1900
  • Whether, if show cause was not established, the respondent would in any event constitute an unacceptable risk if released on bail

Decision

The "principle of restraint": The Court rejected the submission that some principle of restraint limited its powers or approach when reviewing a bail grant made by a single Supreme Court judge. No such principle applies to Detention Applications brought under s 50 of the Bail Act 2013. The Court conducts its own assessment of the bail question.

The "show cause" test: Section 16A of the Bail Act 2013 requires an accused charged with certain serious offences (here, firearm-related offences under Part 3 or 3A of the Crimes Act) to show cause why their detention is not justified. The Court found the respondent had not discharged that onus. The anticipated delay before trial, with an earliest District Court start date of 26 June 2017, was not unreasonable given the complexity of the matter, and much of the brief had already been served without unexplained delay. The Crown case was characterised as strong: there was CCTV footage, identification evidence from the complainant who knew the respondent personally, physical forensic evidence, listening device recordings, and call charge records. The identification evidence was not as weak as the respondent submitted.

Unacceptable risk: The Court also found that, even if the respondent had established show cause, he would have constituted an unacceptable risk if released. The complainant's home had been shot at six times in July 2016 while the respondent was in custody, demonstrating the reach of the criminal network involved. Given the respondent's alleged senior position within DLASTHR, his release, or even supervised house arrest, would risk further interference with the complainant, including a potentially lethal attack. The prospect of such interference outweighed the respondent's interest in being at liberty to prepare his defence.

Orders Made

  • The grant of conditional bail made by Harrison J on 13 October 2016 was revoked.
  • A detention order was made requiring the respondent to remain in custody until further order of a court.

Key Takeaways

  • No "principle of restraint" limits the Court of Criminal Appeal when conducting a Detention Application under s 50 of the Bail Act 2013 following a bail grant by a single Supreme Court judge; the Court undertakes its own independent assessment.
  • Under s 16A of the Bail Act 2013, an accused charged with a serious indictable offence involving a firearm must show cause why their detention is not justified, and that onus is not discharged simply by pointing to anticipated trial delay where the delay is not unreasonable or attributable to the prosecution.
  • A strong Crown case supported by multiple independent streams of evidence (CCTV, forensics, listening devices, complainant recognition) weighs heavily against an accused satisfying the show cause requirement.
  • Where an accused holds a senior position in an organised criminal group, the risk of witness interference is not neutralised by conditions such as house arrest, because influence over the group may be exercised regardless of the accused's physical location.
  • Refusing bail on unacceptable risk grounds is available as an alternative holding even where the show cause analysis also resolves against the accused; both limbs of the analysis may be addressed in the one application.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 50, 68
- Crimes Act 1900 (NSW), ss 29, 33(1)(a), 93T(4A)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- R v Budiman (1997) 97 A Crim R 548
- Director of Public Prosecutions (NSW) v Louizos [2008] NSWCA 220
- Director of Public Prosecutions (NSW) v Louizos [2008] NSWCA 271
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51
- R v Roberts & Lardner (1997) 97 A Crim R 456