Citation: Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 28 June 2017
Judge(s): Hoeben CJ at CL; R A Hulme J; Garling J
Background
The applicant, a 51-year-old man with no criminal history, was charged with one count of aggravated sexual assault and two counts of aggravated indecent assault following his arrest in April 2017. The alleged offences involved a 15-year-old student with a hearing disability who the applicant transported to and from school as a minibus driver. The circumstance of aggravation in each charge was that the alleged victim was under the applicant's authority.
The applicant had already been refused bail three times: by police, by the Local Court, and by the Supreme Court. He brought a further application to the Court of Criminal Appeal under s 67 of the Bail Act 2013 (NSW), which permits a fresh application even after prior refusals.
At the time of the hearing, the applicant's wife had recently been diagnosed with breast cancer and undergone surgery, one daughter was engaged to be married in September 2017, and another daughter was pregnant. The applicant had lived with his family at the same Bass Hill property for over 15 years.
Legal Issues
- Whether the applicant had satisfied the "show cause" requirement under s 16A of the Bail Act 2013, given that the aggravated sexual assault charge is a "show cause offence"
- If cause was shown, whether there remained any unacceptable risk under s 18 of the Act in relation to: failure to appear; commission of a serious offence; endangering community safety; or interference with witnesses or evidence
- What weight to give to the prior refusal by the Supreme Court, given that the Court of Criminal Appeal must assess bail applications afresh
Decision
R A Hulme J (with Hoeben CJ at CL and Garling J agreeing) confirmed that the Court must approach bail applications afresh rather than as a review of the lower court's decision, though it may have regard to earlier reasons. Here, more extensive materials were placed before the Court of Criminal Appeal than had been available to the primary judge, making a fresh assessment appropriate.
On the show cause question, the Court identified a degree of uncertainty in the prosecution's case specifically regarding the aggravated sexual assault charge under s 61J. The prosecution relied principally on the complainant's evidence, with corroborating witnesses who could place the applicant's minibus near a particular location, but that evidence was characterised as neutral at its highest on the s 61J charge. The Court found the case was neither strong nor weak, and that conviction and acquittal were both open possibilities on the material available.
Taking those matters together with the applicant's age, absence of prior convictions, no evidence of inappropriate behaviour toward other children, and the likely period of custody before a mid-2018 trial, the Court was satisfied that cause had been shown.
On bail concerns, the Court accepted that interference with witnesses was the most serious concern but was not persuaded it rose to an unacceptable risk when measured against proposed conditions: prohibition on contact with the complainant and her family, compliance with any apprehended violence order, a residential condition, and reporting to police three times per week. The Court assessed the risk of non-appearance, commission of a serious offence, and endangerment of community safety as minimal given the applicant's personal circumstances and history. An additional condition was imposed prohibiting the applicant from being in the presence of a child under 16 unless another adult was present.
Orders Made
- Bail release application granted.
- The applicant admitted to bail on conditions set out in a schedule annexed to the court file copy of the judgment.
Key Takeaways
- The Court of Criminal Appeal confirmed that it must determine bail applications under s 67 of the Bail Act 2013 afresh, and is not confined to reviewing the reasoning of the court below, though it may have regard to those reasons.
- A "show cause" obligation under s 16A involves a two-stage process: first, whether cause has been shown; and only if so, whether any identified bail concerns represent an unacceptable risk assessed by reference to the factors in s 18.
- Delay in bringing a matter to trial is a relevant consideration in assessing show cause, particularly where that delay is significant and the accused would otherwise remain in custody for an extended period pending finalisation of proceedings.
- Uncertainty about the strength of the prosecution case on the specific charge giving rise to the show cause requirement can contribute to satisfying that threshold, even where the overall case is not characterised as weak.
- Bail conditions including residential requirements, regular police reporting, contact prohibitions, and compliance with existing apprehended violence orders may be sufficient to reduce a concern about witness interference to below the level of unacceptable risk.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 18, 49, 67
- Crimes Act 1900 (NSW), ss 61J, 61M(1)
Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- El-Hilli and Melville v R [2015] NSWCCA 146
- Trinh v R [2016] NSWCCA 110