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Supreme Court 9 September 2016

R v Farrell

[2016] NSWSC 1278

Public order & justice offences
BAIL NEW TRIAL DATE 11 MONTHS LATER SHOW CAUSE OFFENCE RELEVANCE OF DELAY

Citation: R v Farrell [2016] NSWSC 1278
Court: Supreme Court of NSW
Date: 9 September 2016
Judge: McCallum J

Background

The applicant faced two charges of shooting with intent to murder under s 29 of the Crimes Act 1900 (NSW), together with two back-up charges of discharging a firearm with intent to cause grievous bodily harm. The alleged victims were the boyfriend of the applicant's sister and the boyfriend's father, who were shot in April 2014. The Crown case was circumstantial: neither victim identified the applicant to police, the boyfriend refused to cooperate with investigators, and the Crown relied on text messages, CCTV footage and evidence about a car the applicant had purchased shortly before the shooting.

The applicant was arrested in June 2014 and had remained in custody on remand ever since. He had previously been refused bail by Campbell J in December 2015. By the time of the present application, the trial date of 11 July 2016 had been vacated through no fault of the applicant, with a new trial date set for 5 June 2017. That adjournment meant the applicant was facing a total remand period exceeding three years.

Legal Issues

  • Whether the vacation of the trial date constituted a "change of circumstances" permitting a further bail application under s 74(3) of the Bail Act 2013 (NSW), despite the previous refusal by this Court
  • Whether the applicant could satisfy the show cause requirement under s 16A of the Bail Act, given the charges involved the use of a firearm
  • Whether bail concerns about flight risk and the risk of committing further offences could be addressed by conditions, such that bail should be granted

Decision

Issue 1: Whether a further application could be heard under s 74

Section 74(1) of the Bail Act requires a court that has refused bail to refuse to hear another release application unless grounds for a further application exist. A ground exists where circumstances relevant to the grant of bail have changed (s 74(3)). The court held that the vacation of the original trial date from 11 July 2016 to 5 June 2017 constituted exactly such a changed circumstance. The Crown argued that additional District Court dates in January 2017 had since become available, which went to the substance of the application, but McCallum J found that the vacation of the earlier date was itself sufficient to satisfy s 74(3) and that the court was obliged to hear the application (at [6]-[8]).

Issue 2: The show cause requirement

The applicant faced the show cause threshold under s 16A because the offences were serious indictable offences involving a firearm (at [9]). McCallum J acknowledged ongoing uncertainty about how the two-stage show cause and unacceptable risk tests interact in practice, particularly where the Bail Act at s 19(3) provides that having shown cause is "not relevant" to the unacceptable risk assessment. The court observed that where a person poses no unacceptable risk even without bail conditions, it is difficult to understand how detention could be justified, yet accepted that the Court of Appeal's decision in Tikomaimaleya requires the applicant to demonstrate on the balance of probabilities, by reference to some additional consideration, that detention is not justified (at [13]-[20]).

Issue 3: Bail concerns and the application of the show cause test

The court independently reached the same conclusions as Campbell J on the bail concerns. The risk that the applicant might flee could be addressed by a surety condition (at [21]). The risk of reoffending was assessed against a criminal record showing no offence since age 19, including a period under active police surveillance before arrest (at [19]). The court declined to act on police intelligence that went behind a recent acquittal, treating the applicant as not guilty of those matters as a matter of legal doctrine (at [22]). The fact that neither victim had identified the applicant meant there was no logical reason for him to pose a risk to them (at [23]).

The court held that the critical consideration for show cause was the delay. Citing R v Cain (No 1) [2001] NSWSC 116, McCallum J stated that the prospect of an unconvicted citizen being imprisoned for as long as two years pending trial is, absent exceptional circumstances, inconsistent with modern concepts of civil rights (at [24]). The court warned against the erosion of those rights through progressive normalisation of delay caused by pressure on a stretched criminal justice system (at [25]). Three years was held to be too long a period of remand absent unacceptable risk, and cause had been shown (at [27]-[28]).

Orders Made

  • Bail granted

Key Takeaways

  • Vacation of a trial date constitutes a "change of circumstances relevant to the grant of bail" under s 74(3) of the Bail Act 2013 (NSW), permitting a further bail application to be heard even where a previous application has been refused by the same court (at [6]-[8]).

  • A pre-trial remand period of three years for an unconvicted person is, absent unacceptable risk, inconsistent with modern concepts of civil rights; the Supreme Court held that this delay was the critical consideration in satisfying the show cause requirement (at [24]-[27]).

  • Courts must actively guard against the normalisation of remand delay, declining to allow the jading effect of a stretched criminal justice system to erode the civil rights of unconvicted persons (at [25]).

  • Where two judges of the Supreme Court have each independently concluded that bail concerns can be adequately addressed by strict conditions, that conclusion weighs heavily in favour of bail being granted (at [27]-[28]).

  • Unresolved tension remains in NSW law between the show cause test and the unacceptable risk test: McCallum J noted, with expressed uncertainty, that the Court of Appeal's approach in Tikomaimaleya appears to require something beyond a finding of no unacceptable risk before an applicant can be said to have shown cause (at [13]-[20]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 19, 20, 31, 74
- Crimes Act 1900 (NSW), ss 29, 33A

Cases
- DPP (NSW) v Tikomaimaleya [2015] NSWCA 83
- M v R [2015] NSWSC 138
- R v Cain (No 1) [2001] NSWSC 116