Citation: R v BNS [2016] NSWSC 350
Court: Supreme Court of New South Wales
Date: 1 April 2016
Judge(s): Garling J
Background
The applicant, referred to as BNS, was arrested on 14 May 2015 and charged with supplying a commercial quantity of methylamphetamine under the Drug Misuse and Trafficking Act 1985 (NSW), an offence carrying a maximum penalty of life imprisonment, as well as a related offence under the Crimes Act 1900. Police surveillance at a Sydney carpark recorded BNS handling brown bags later found to contain approximately one kilogram of methylamphetamine each, across two transactions. BNS told police he had been paid several hundred dollars to participate and guessed the bags contained drugs, though he said he did not know for certain.
BNS was refused bail at the time of his arrest and has remained in custody since May 2015. His first release application was dismissed by Fagan J on 1 October 2015. The present application was his second before the Supreme Court.
A suppression order was made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) protecting the identities of the applicant, his mother, his fiancée, and relevant witnesses until the conclusion of trial.
Legal Issues
- Whether there were grounds under section 74 of the Bail Act 2013 (NSW) to hear a further release application, given that the surety's identity and the amount offered had changed since the first application.
- Whether more thorough or persuasive submissions by senior counsel on a second application could constitute "material information" or a change of circumstances under section 74.
- Whether BNS had shown cause why his detention was not justified, as required for a "show cause offence" under section 16A of the Bail Act.
- Whether there was an unacceptable risk of non-appearance at trial.
Decision
Issue 1: Grounds to hear the further application under section 74
The court rejected the submission that the quality or thoroughness of submissions by senior counsel on a second application could satisfy section 74. More persuasive legal argument is not "information," nor does it constitute a change of circumstances relevant to the grant of bail (at [42]-[43]). The court confirmed that section 74 is not a mechanism for a second hearing simply because different counsel may argue a case more effectively.
The court accepted, however, that a change in the identity of the proposed surety and the sum offered can, depending on the seriousness of the charge and all relevant circumstances, constitute material information under section 74. The question is always one of fact and degree (at [45]-[46]). Here, the change from a $50,000 surety offered by the applicant's fiancée to a $1 million surety offered by his mother was sufficient to enliven the court's jurisdiction to hear the second application.
Issue 2: Show cause requirement and the risk of non-appearance
The court found the Crown case to be very strong, based on surveillance evidence, photographs, and BNS's own admissions in his police interview (at [30]-[31]). The court acknowledged that BNS had been in custody for approximately 18 months before his anticipated trial date, an unduly long period that counted in his favour on the show cause question (at [51]).
Despite that consideration, the court found an unacceptable risk of non-appearance. BNS is a young Chinese national with no property in Australia, no family in Australia beyond his fiancée, and no Australian citizenship (at [57]). He faces a maximum sentence of life imprisonment, giving him a powerful motivation to avoid appearing at trial (at [58]). The $1 million surety offered by his mother did not substantially address this risk: the court could not assess the relative financial impact of that sum on the applicant or his family with any confidence, and there was no material before the court indicating that BNS felt any personal obligation in respect of that money (at [59]-[61]). The proposed conditions did not sufficiently diminish the unacceptable risk of non-appearance, and BNS accordingly failed to show cause why his detention was not justified (at [63]).
Orders Made
- Application dismissed.
Key Takeaways
-
Under section 74 of the Bail Act 2013 (NSW), more thorough or persuasive submissions by new or different counsel do not constitute "material information" or a change of circumstances: submissions are not information, and a second hearing cannot be triggered simply because an applicant hopes to argue the case more effectively (at [42]-[43]).
-
A change in surety identity and the amount offered can qualify as material information justifying a further release application, but only where the change is material in the context of the charge's seriousness and all other relevant circumstances. It is always a question of fact and degree (at [45]-[46]).
-
Refusing bail on a show cause offence, the Supreme Court confirmed that a large surety does not automatically reduce an unacceptable risk of non-appearance. Where a court cannot assess the relative financial significance of the sum to the applicant or his family, and where there is no evidence of the applicant's sense of personal obligation regarding that money, the surety carries limited weight (at [59]-[61]).
-
An anticipated pre-trial custody period of approximately 18 months is an unduly long period and a relevant consideration in the show cause analysis, but it does not override a finding of unacceptable risk of non-appearance where other factors weigh heavily against release (at [51]-[62]).
-
Lack of substantial ties to Australia, including no Australian citizenship, no property, and no family in the jurisdiction beyond a fiancée, combined with exposure to a maximum sentence of life imprisonment, can together constitute a powerful basis for finding an unacceptable risk of non-appearance (at [57]-[58]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013
- Crimes Act 1900
- Drug Misuse and Trafficking Act 1985
Cases
- JM v R [2015] NSWSC 978