Citation: Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172
Court: Court of Criminal Appeal
Date: 21 July 2017
Judge(s): Bathurst CJ, McCallum J, N Adams J
Background
The applicant, a 47-year-old man charged with serious drug supply and proceeds of crime offences, sought release on bail from the Court of Criminal Appeal. The charges arose from police surveillance and searches conducted in 2016, which uncovered the supply of cocaine and methylamphetamine, including a quantity of methylamphetamine exceeding the commercial threshold. The prosecution also alleged that drug proceeds were funnelled through a bank account opened by the applicant's wife.
The applicant had been in custody since September 2016 following two unsuccessful applications for release in the Supreme Court. The second application before Bellew J was refused in May 2017. The applicant then brought a further release application to the Court of Criminal Appeal.
The circumstances had changed significantly between the earlier applications and this one. On 15 April 2017, the applicant's two sons were involved in a serious motor vehicle accident that left them requiring substantial care. This change in family circumstances was the principal new matter underpinning the fresh application.
Legal Issues
- Whether the applicant, charged with a show cause offence under the Bail Act 2013 (NSW), had shown cause why his detention was not justified under s 16A
- Whether, having shown cause, any unacceptable risk existed under ss 17 to 19 if the applicant were released
- Whether the strict conditions proposed by the applicant could reduce any identified bail concerns to an acceptable level under s 20A
Decision
Because the applicant was charged with supplying a commercial quantity of a prohibited drug, the show cause requirement in s 16A of the Bail Act applied. The Court found that cause had been shown, relying primarily on the serious and ongoing care needs of the applicant's two injured sons and the absence of any other available adults in the family to assist. Evidence established that the applicant's two adult daughters were unavailable, and that community assistance was difficult to obtain, matters that had not been placed before Bellew J.
On the unacceptable risk question, the Court assessed the four bail concerns under s 17(2): failure to appear, commission of a serious offence, endangering community safety, and interference with witnesses or evidence. The Court accepted that the significant care obligations created a powerful incentive for the applicant to remain in the jurisdiction, and that his need to be present for his children weighed against any flight risk.
The Court considered the applicant's lack of prior drug convictions, his absence of any history of bail breaches, his community ties, and the strict conditions he proposed. After the Court indicated it would grant bail, the Director sought additional conditions, including a prohibition on contacting outlaw motorcycle gang members and a requirement that guard dogs be contained to allow police to enforce curfew conditions. Those conditions were incorporated.
The Court emphasised that its assessment was a de novo hearing, meaning it was not required to identify any error in Bellew J's earlier refusal. It also noted that the bail grant applied only until the matter returned to court, and that the Director retained the right to seek a detention order under s 50 if circumstances changed, including any improvement in the condition of the applicant's sons.
Orders Made
• Bail granted with the following conditions:
- Reporting obligations
- Non-association with co-accused
- Surrender of passport and prohibition on applying for other travel documents
- Use of only one mobile telephone
- Curfew enforcement condition
- Curfew enforcement condition allowing police to attend home at any time
- Surety of $620,000 provided by applicant's elderly parents
- Not approach or contact any member past or present or associate of any outlaw motorcycle gang
- Any guard dogs at the applicant's home be contained to allow police to enforce curfew and residence requirements
Note: The judgment records that the Court ordered the release of the applicant on strict conditions at the conclusion of the hearing on 26 May 2017. The detailed conditions are not fully reproduced in the text provided.
Key Takeaways
- Under s 16A of the Bail Act 2013, an applicant charged with a show cause offence bears the burden of demonstrating why detention is not justified before the standard unacceptable risk assessment is undertaken; these are sequential and distinct stages.
- A serious change in family circumstances, specifically the need to provide care for injured dependants where no other carer is available, can constitute sufficient cause to satisfy the show cause threshold, provided adequate evidence is placed before the court.
- Strict bail conditions, including curfews, residence requirements, and prohibitions on associating with particular persons, are relevant under s 20A when assessing whether an identified bail concern rises to the level of an unacceptable risk.
- A bail release application before the Court of Criminal Appeal proceeds de novo; no error in the primary judge's decision need be demonstrated.
- The Court of Criminal Appeal confirmed the principle from R v SK; R v DK that the bail framework requires the informed balancing of risk, not the elimination of all risk.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 20A, 26(5), 49, 50, 67, 74
- Crimes Act 1900 (NSW), s 193C(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases:
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
- McAndrew v R [2016] NSWCCA 58
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- R v Kugor [2015] NSWCCA 14
- R v Marcus [2016] NSWCCA 237
- R v SK; R v DK [2014] NSWSC 816
- R v S [2016] NSWCCA 189