Citation: Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
Court: Court of Criminal Appeal (NSW)
Date: 16 December 2016
Judges: Gleeson JA, Rothman J, Button J
Background
The applicant faced two separate sets of criminal charges. The first set, arising from an alleged incident in September 2015, included three offences under the Crimes Act 1900 (NSW) relating to the fabrication and use of false evidence. The Crown alleged she visited a co-accused of her husband at a remand centre and sought to have him make a false statement to benefit her husband's criminal proceedings. She had been on bail for those charges since November 2015.
The second set of charges emerged while she remained on bail for the first. These alleged that, between June and September 2016, she fabricated further false evidence and dealt with approximately $170,000 in proceeds of crime. The Crown's case was that she coerced an associate, Mr Cooke, into providing a false statutory declaration about the provenance of those funds, intending the document to be used to resist court-ordered asset restraint and confiscation proceedings.
Bail had been refused by Bellew J on 11 November 2016. The applicant then brought a fresh release application to the Court of Criminal Appeal, which was heard and refused on 16 November 2016. These reasons were published later to explain the court's conclusions.
Legal Issues
- Whether the applicant had shown cause, under s 16A(1) and s 16B(1)(h)(i) of the Bail Act 2013 (NSW), why her detention was not justified, given that the second set of charges arose while she was on bail for offences of a similar character
- Whether, if cause were established, there nonetheless existed an unacceptable risk that she would commit a serious public justice offence if released
Decision
Because the second set of charges alleged offences committed while the applicant was on bail for similar offences, the "show cause" threshold in s 16A(1) of the Bail Act 2013 applied. It was not disputed by senior counsel for the applicant that this threshold governed the application.
Button J assessed the Crown's case as strong. The intercepted conversations between the applicant and Mr Cooke were before the court and, on Button J's reading, indicated a concerted effort to align false accounts about the $170,000. The alleged conduct directly mirrored the conduct underlying the first set of charges, namely attempts to subvert judicial proceedings.
Button J then examined the factors the applicant put forward to show cause. Her domestic responsibilities, employment, good character, and community ties were acknowledged but given limited weight in light of the strength of the Crown case and the nature of the charges. The prospect of delay in resolving the proceedings was also considered but, in circumstances where the first set of charges was listed for hearing in early 2017 and no exceptional delay was apparent for the second set, this did not tip the balance in her favour. Taken individually or in combination, the factors were insufficient to discharge the show cause requirement.
As an ancillary matter, Button J stated that even if cause had been shown, bail would have been refused in any event. There was, in his Honour's view, an unacceptable risk that the applicant would interfere with Mr Cooke as a prosecution witness if released.
Orders Made
- Release application refused.
Key Takeaways
- Under ss 16A(1) and 16B(1)(h)(i) of the Bail Act 2013 (NSW), an applicant charged with an offence allegedly committed while on bail for a similar offence bears the onus of showing cause why detention is not justified, and that threshold is a substantial one.
- A strong Crown case, particularly one supported by intercepted communications suggesting coordinated false accounts, weighs heavily against an applicant attempting to discharge the show cause requirement.
- Factors such as good character, family responsibilities, and employment prospects do not, without more, constitute sufficient cause for release when the alleged conduct closely mirrors the offending for which bail was already granted.
- Anticipated delay in resolving proceedings may, in extreme cases or in combination with other factors, support a finding of cause, but the Court of Criminal Appeal found no such exceptional circumstances on these facts.
- Refusing the application on show cause grounds does not preclude a separate, alternative finding of unacceptable risk: Button J indicated that an unacceptable risk of interference with a key prosecution witness would have independently warranted refusal.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A(1), 16B(1)(h)(i), 18, 22
- Crimes Act 1900 (NSW), ss 193B(1), 317(a), 317(b), 317(c)
Cases:
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- McAndrew v R [2016] NSWCCA 58
- R v Marcus [2016] NSWCCA 237
- R v S [2016] NSWCCA 189