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Supreme Court 13 September 2016

A1 v R; A2 v R

[2016] NSWSC 1288

HomicidePublic order & justice offences
BAIL SHOW CAUSE OFFENCES BAIL ACT 2013, S 16B

Citation: A1 v R; A2 v R [2016] NSWSC 1288
Court: Supreme Court of NSW
Date: 13 September 2016
Judge(s): Garling J

Background

Both applicants were arrested on 3 October 2013 and charged with offences arising from the death of a person in Sydney on 11 August 2011. The first applicant (A1) was charged with murder. The second applicant (A2) was originally charged with murder but, following committal proceedings in April 2016, was committed to stand trial on the lesser charge of being an accessory after the fact to murder under s 349(1) of the Crimes Act 1900.

By the time these bail applications were heard, both applicants had been in continuous custody for almost three years. The Crown took approximately two years from their arrest to serve a complete prosecution brief, a delay the Crown itself conceded was unreasonably lengthy. The brief ultimately ran to at least 50 volumes and approximately 17,000 pages. A trial date was fixed for May 2017, meaning each applicant would have spent just over three and a half years in custody before the trial commenced.

The Crown case relied on events spanning approximately three months before and after the alleged murder, including evidence from telephone intercepts and lawfully obtained listening device recordings captured from late 2011 onwards.

  • Whether each applicant had satisfied the "show cause" requirement under s 16A and s 16B(1)(a) of the Bail Act 2013, which applies to offences punishable by life imprisonment, including murder and accessory after the fact to murder.
  • If cause was shown, whether any remaining bail concerns under s 17 of the Bail Act constituted an "unacceptable risk" that could not be adequately addressed by bail conditions.
  • Whether the risk of witness interference, in particular with a central Crown witness, was a decisive factor in the bail assessment.

Decision

Garling J identified that both charges attracted the show cause threshold under s 16B(1)(a) of the Bail Act 2013 because both are punishable by life imprisonment. This meant the Court was required to refuse bail unless the applicants demonstrated why their continued detention was not justified.

His Honour acknowledged that the applicants had been held for an unduly lengthy period and that the prosecution's delay in serving its brief was unreasonable. He was prepared to assume, in each applicant's favour, that most bail concerns under ss 17 and 18 of the Bail Act could have been addressed by appropriate conditions. However, one concern could not be resolved by conditions: the risk of interference with a key Crown witness.

The relationship between A1 and the principal witness was described as fraught. A1 had pursued litigation seeking to discredit the witness as a fraudster and had made verbal threats, which caused the witness to express fears for her safety to police. Garling J found that no bail condition could adequately protect this witness if either applicant were released.

Weighing all relevant matters, his Honour gave greatest emphasis to the strength of the Crown case, which he characterised as strong. The alleged offence was planned, violent, and carried out for personal motives, with the victim's body remaining unrecovered. In those circumstances, neither applicant had shown cause why detention was not justified, and the applications were dismissed.

Orders Made

• The applications for bail are dismissed

Key Takeaways

  • Under s 16A and s 16B(1)(a) of the Bail Act 2013, applicants charged with murder or accessory after the fact to murder (both offences punishable by life imprisonment) must affirmatively show cause why their detention is not justified before any assessment of bail conditions can occur.
  • Unreasonable prosecutorial delay in serving a brief of evidence, and a prolonged period of pre-trial custody, are relevant factors in a show cause analysis but do not on their own satisfy the threshold.
  • Refusing bail in both applications, Garling J held that the risk of witness interference can constitute a decisive and insurmountable obstacle, particularly where no bail condition could realistically protect a central Crown witness.
  • The strength of the Crown case is a weighty consideration: where the prosecution case is strong and the alleged offence was planned and violent, that factor may prevail over other considerations that favour the applicant, including extended pre-trial custody.
  • A suppression order was made under the Court Suppression and Non-Publication Orders Act 2010 to protect the identities of the parties, witnesses, and the deceased, in order to safeguard the applicants' right to a fair trial.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 8, 16A, 16B, 17, 18, 19
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 8
- Crimes Act 1900 (NSW), s 349(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited
- Chau v DPP (1995) 37 NSWLR 639
- Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1
- Clumpoint v DPP [2005] QCA 43
- DPP (Cth) v Germakian [2006] NSWCA 275
- DPP (NSW) v Tikomaimaleya [2015] NSWCA 83
- JM v R [2015] NSWSC 978
- M v R [2015] NSWSC 138