Citation: Khair v Director of Public Prosecutions (NSW) [2017] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 17 March 2017
Judges: Macfarlan JA; Latham J; Campbell J
Background
The applicant faced a series of charges arising from three separate incidents in December 2016 and January 2017, including dangerous driving, drug possession, and assaulting and resisting police officers. He was disqualified from driving until January 2030, and had previously served prison sentences for driving while disqualified and driving recklessly during a police pursuit.
After a serious motor vehicle accident on 4 December 2016, the applicant was granted bail on the condition that he not occupy the driver's seat of any vehicle. On 28 January 2017, police observed him driving while both disqualified and in breach of that bail condition. His bail was revoked by the Local Court the following day.
A further bail application to the Supreme Court was refused on 2 March 2017. The applicant then applied to the Court of Criminal Appeal under s 67 of the Bail Act 2013 (NSW) for a fresh determination of his release. He did not contend that any change of circumstances had occurred since the Supreme Court decision.
Legal Issues
- Whether the applicant could satisfy the "show cause" requirement under the Bail Act 2013 (NSW), given that the charges were "show cause" offences committed while he was on bail
- Whether personal hardship factors, including a forthcoming wedding, family dependency, and potential unemployment of a business employee, were sufficient to demonstrate that continued detention was not justified
- Whether the strength of the prosecution case and the applicant's history weighed against release even if the show cause threshold were met
Decision
The Court determined the application afresh, treating the hearing as an original application rather than an appeal or review of the Supreme Court's decision. The charges involving the assault of police officers committed while the applicant was on bail constituted "show cause" offences under s 16B(h)(i) of the Bail Act 2013 (NSW), meaning the applicant bore the burden of demonstrating on the balance of probabilities that his continued detention was not justified.
The applicant relied on a combination of factors: the presumption of innocence, alleged weaknesses in the prosecution case, his impending wedding, family ties, and hardship to family members and employees of his roofing business. The Court found the prosecution case on the driving charges to be strong, noting the applicant's admissions regarding illicit drug use and the direct observations of police that he was driving on 28 January 2017. The Court also noted that the applicant almost certainly faced imprisonment upon conviction given his history.
On the hardship factors, the Court was unpersuaded. The non-refundable wedding deposit of $15,000 had been paid after the December accident and while the applicant was subject to bail conditions he subsequently breached. The Court found the financial and domestic hardship claimed on behalf of the applicant's parents and sister was not established, noting that other family members were available to provide support. The evidence regarding the roofing business was similarly unconvincing, with one named employee acknowledged to be capable of seeking other work and the remaining workers being unnamed apprentices of short tenure.
The Court concluded that even if the show cause threshold had been reached, the imposition of strict bail conditions would not adequately address the ongoing risk of further driving offences, given the applicant's demonstrated pattern of reoffending despite strong family support.
Orders Made
No orders were made in this decision.
Key Takeaways
- Refusing bail, the Court of Criminal Appeal confirmed that an application under s 67 of the Bail Act 2013 (NSW) following a Supreme Court refusal is determined entirely afresh, not as an appeal or review of the earlier decision.
- Where charges are "show cause" offences because they were committed while the applicant was on bail, the applicant bears the burden of demonstrating on the balance of probabilities that continued detention is not justified.
- A combination of factors, including family ties, an impending wedding, and potential hardship to employees, will not collectively satisfy the show cause requirement where the prosecution case is strong and the applicant's history demonstrates a persistent risk of reoffending.
- Hardship claims regarding family financial dependency are weakened where other capable family members exist who could reasonably provide support, and no evidence establishes that they cannot do so.
- Under s 67(2) of the Bail Act 2013 (NSW), read with s 29 of the Criminal Appeal Act 1912 (NSW), a bail application to the Court of Criminal Appeal cannot be heard by a single judge sitting alone.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16B(h)(i), 67(1)(e), 67(2)
- Criminal Appeal Act 1912 (NSW), s 29
Cases
- Obeid v R (No 2) [2016] NSWCCA 321
- Trinh v R [2016] NSWCCA 110
- R v Kugor [2015] NSWCCA 14