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Supreme Court 2 December 2016

Lock v R

[2016] NSWSC 1705

Sexual offencesHomicide
RELEASE APPLICATION ALLEGED MURDER OF TWO YEAR OLD CHILD TRIAL LISTED IN APRIL 2017 WHERE THREE

Citation: Lock v R [2016] NSWSC 1705
Court: Supreme Court of New South Wales
Date: 2 December 2016
Judge(s): N Adams J

Background

The applicant was charged in May 2014 with the murder of a two-year-old child and with a serious sexual assault offence against that child at Coffs Harbour. He was refused bail at the time of charge and had remained in custody continuously since then, a period of approximately two and a half years at the time of this application.

The applicant had made a prior release application in December 2015, which Campbell J refused on the basis that cause had not been shown. The Crown case alleged that the child died from catastrophic internal abdominal injuries caused by blunt force trauma, inflicted during a brief window when the applicant was alone with her.

In April 2016, the applicant was discharged at committal on the sexual assault count and committed for trial on the murder charge alone. His trial was listed before Adams J at Coffs Harbour to commence on 10 April 2017. On 30 November 2016, the applicant made this second release application to the Supreme Court.

  • Whether the applicant met the threshold test under s 74 of the Bail Act 2013 (NSW) to bring a further release application, given the prior refusal by Campbell J
  • Whether the applicant had shown cause, on the balance of probabilities, that his continued detention was not justified, as required by ss 16A and 16B of the Bail Act 2013 for "show cause" offences

Decision

The Crown conceded that a change in circumstances existed, namely the applicant's discharge from the sexual assault charge at committal, satisfying the threshold requirement under s 74 of the Bail Act. That concession opened the door to a fresh hearing on the merits.

On the show cause question, Adams J assessed the strength of the Crown case as reasonably strong. The post-mortem evidence pointed to severe blunt force trauma as the cause of the abdominal injuries that killed the child. The applicant had been alone with the deceased during the relevant window, and expert opinion was that natural disease played no role in the child's death. The nature and volume of the injuries supported an inference of multiple blows.

Adams J acknowledged that the period in custody since charge was significant and that the presumption of innocence remained applicable. However, her Honour weighed those factors against the seriousness of a murder charge, the likelihood of a substantial sentence upon conviction, and the concern that a reasonably strong Crown case, combined with only four months remaining until trial, could give rise to concern about the applicant failing to appear.

Balancing all of those considerations, Adams J was not satisfied on the balance of probabilities that the applicant had established his detention for the remaining four months was not justified. The release application was refused.

Orders Made

  • The release application is refused.

Key Takeaways

  • Under s 74 of the Bail Act 2013, a second release application to the same court is permissible where circumstances relevant to bail have changed since the prior application. The discharge of a co-charged offence at committal was accepted as such a change.
  • For "show cause" offences under s 16B of the Bail Act 2013, the applicant bears the onus of establishing, on the balance of probabilities, that continued detention is not justified; the burden does not rest on the Crown.
  • Refusing bail, Adams J confirmed that the strength of the prosecution case is a relevant consideration at the show cause stage, not only at the subsequent unacceptable risk stage, consistent with Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.
  • The imminence of a listed trial date is a relevant factor in the bail analysis, particularly where a strong Crown case may give an accused a heightened incentive not to appear.
  • A significant period of pre-trial detention does not automatically establish that continued detention is unjustified, particularly where the offence is murder and a substantial custodial sentence upon conviction is a real prospect.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 17(2), 74
- Crimes Act 1900 (NSW), ss 18(1)(a), 66A(1)
- Criminal Procedure Act 1986 (NSW), s 91

Cases
- A1 v R; A2 v R [2016] NSWSC 1288
- Chau v DPP (1995) 37 NSWLR 639
- Chu Keng Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Hamze v R [2015] NSWCCA 104
- JM v R [2015] NSWSC 978
- R v Cain (No 1) [2001] NSWSC 116
- R v Farrell [2016] NSWSC 1278
- R v Lock [2015] NSWSC 1865