Citation: Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
Court: Court of Criminal Appeal, NSW
Date: 20 July 2017
Judges: Gleeson JA; Harrison J; Fullerton J
Background
The respondent faced 14 serious criminal charges arising from the alleged operation of a large-scale clandestine drug laboratory in the garage of his home. The charges included manufacturing a large commercial quantity of a prohibited drug, directing the activities of a criminal group, dealing with proceeds of crime, and possessing an unauthorised pistol. At least three charges carried a maximum penalty of life imprisonment, and two children living at the premises were found to have been substantially exposed to drugs manufactured there.
The respondent was refused bail twice in the Local Court before being granted conditional bail by Davies J in the Supreme Court on 27 June 2017. His Honour accepted that the respondent suffered a significant depressive illness and was unlikely to receive adequate pharmacological care and supervision in custody. The respondent was released to bail on 30 June 2017, subject to daily reporting and a surety of $250,000.
The Director of Public Prosecutions then brought a detention application in the Court of Criminal Appeal under s 50 of the Bail Act 2013, seeking to revoke that bail. The Court heard the application on 14 July 2017 and immediately made orders revoking bail, with reasons to follow.
Legal Issues
- Whether, under the Bail Act 2013, the respondent had shown cause why his continued detention was not justified, given that he was charged with offences attracting the show cause requirement
- Whether the respondent's diagnosed depressive illness was sufficient, alone or in combination with other factors, to satisfy the show cause threshold
- Whether the Crown case evidence, including the strength of the case against the respondent, was relevant to the show cause assessment
Decision
The Court confirmed that a detention application in the Court of Criminal Appeal is determined afresh and is not an appeal from or review of the primary judge's decision, though it may take the nature of a new hearing in which earlier evidence remains relevant. The Court applied the principles from Moukhallaletti v DPP (NSW) [2016] NSWCCA 314, including that cause may be shown by a single powerful factor or a powerful combination of factors, and that an applicant need not demonstrate special or exceptional circumstances.
On the medical evidence, the Court found that competing expert opinions indicated the respondent's depressive illness had stabilised in the community and that his treatment needs could be adequately met by custodial health services. The Court accepted that NSW prison health services face significant resource pressures, but held that the respondent had not demonstrated his position set him apart from other similarly placed individuals already in custody.
The Court also weighed the considerable strength of the Crown case, which included telephone intercepts and surveillance device material containing admissions by the respondent about manufacturing prohibited drugs. The respondent himself conceded the Crown case was strong and that conviction would likely attract a significant custodial sentence. The Court noted that, viewed from a lay perspective, the intercepted conversations did not indicate any altered thought process or functional deficit consistent with a severely disabling mental illness.
Taking all factors together, the Court was not satisfied that the respondent had shown cause why his continued detention was not justified and accordingly revoked bail.
Orders Made
- Bail granted on 27 June 2017 was revoked.
- The respondent was directed to be taken into custody forthwith.
Key Takeaways
- A serious and diagnosed mental health condition does not automatically satisfy the show cause requirement under the Bail Act 2013; a respondent must demonstrate that their condition sets them apart in a meaningful way from others in a similar custodial position.
- Under s 16A and related provisions of the Bail Act 2013, the show cause test is distinct from the unacceptable risk test, but there is substantial overlap between the factors relevant to each inquiry.
- The strength of the Crown case is a relevant consideration in the show cause assessment, particularly where conviction would inevitably result in a significant term of imprisonment.
- Cause may be established by a single powerful factor or a combination of factors, and applicants are not required to demonstrate special or exceptional circumstances to satisfy the threshold.
- In dismissing the show cause argument, the Court found that the likely necessity of managing the respondent's mental health condition within the custodial system, rather than preventing it, weighed against release where the Crown case was very strong and no special treatment needs distinguished the respondent from other inmates.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 18, 22, 50
- Mental Health Act 2007 (NSW)
Cases:
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions v Tony Mawad [2015] NSWCCA 227
- R v Kugor [2015] NSWCCA 14
- R v McCormack [2015] NSWCCA 221
- Trinh v R [2016] NSWCCA 110
- R v BNS [2016] NSWSC 350
- A1 v R, A2 v R [2016] NSWSC 1288