Citation: Khair v Director of Public Prosecutions (NSW) [2017] NSWCCA 50
Court: Court of Criminal Appeal
Date: 17 March 2017
Judge(s): Macfarlan JA; Latham J; Campbell J
Background
The applicant faced multiple charges arising from incidents on 4 December 2016, 23 January 2017, and 28 January 2017. The charges included serious driving offences, drug possession, and assaulting and resisting police officers. At all relevant times the applicant was disqualified from driving, and he had previously served sentences of nine months and six months imprisonment for driving whilst disqualified and driving recklessly during a police pursuit.
Following the December 2016 accident, the applicant was granted bail on condition that he not occupy the driver's seat of any vehicle. He was subsequently charged with driving on 28 January 2017, in breach of both his disqualification and that bail condition. The three assault charges arising from the same incident were "show cause" offences under the Bail Act 2013 (NSW), because they were allegedly committed while the applicant was on bail.
The Local Court revoked bail on 29 January 2017. A further 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, which permitted a fresh determination rather than a review of the earlier decision.
Legal Issues
- Whether the applicant could demonstrate, on the balance of probabilities, that his continued detention was not justified (the "show cause" requirement under the Bail Act 2013)
- Whether the combination of factors relied upon, including the disruption to his planned wedding, financial hardship to family members, and potential job losses in his roofing business, was sufficient to satisfy that threshold
- Whether, even if show cause were satisfied, strict bail conditions could adequately address the risk of further offending
Decision
Show cause threshold: strength of the prosecution case and prior history
The court identified the prosecution case on the driving charges as powerful, noting two independent civilian witnesses who observed and photographed the applicant driving erratically, and the applicant's own admissions to consuming cannabis and ice on 28 January 2017 (at [8]-[10]). The court observed that, despite the summary nature of most charges, the applicant almost certainly faced a term of imprisonment upon conviction given his prior record and the public safety risk his conduct represented (at [10]).
Wedding and financial hardship: engagement and deposit
The court acknowledged the unfortunate consequences for the applicant's planned wedding but found the loss of a non-refundable $15,000 deposit and associated social embarrassment insufficient to advance the show cause argument (at [15]). It noted the deposit was paid in January 2017, after the December accident and the bail condition it imposed, and that the applicant's fiancée was present in the car on 28 January. The court concluded that the applicant, in breaching his bail conditions, was the author of his fiancée's misfortune (at [15]).
Family hardship: dependent parents and siblings
The court found no persuasive basis to conclude that the applicant's financial and domestic support to his elderly parents and unemployed sister could not be provided by other family members (at [16]). The affidavit evidence from a brother and sister did not address why other able-bodied siblings, cousins, aunts, or uncles could not assist (at [16]).
Business and employment hardship
The court found the evidence from the applicant's employee unconvincing (at [17]). It noted the employee's primary role appeared to be driving the applicant to work sites, given the applicant's disqualification extending to January 2030, and that the employee was 33 years old and acknowledged an ability to find other work (at [17]). The three remaining "employees" were unnamed and appeared largely unknown to the deponent (at [17]).
Risk of further offending
Even assuming the show cause threshold had been reached, the court held that strict bail conditions would be insufficient to address the risk of further driving offences (at [18]). The applicant's history demonstrated that strong family ties had not previously deterred serious traffic offending (at [18]).
Orders Made
- Application refused
Key Takeaways
- Refusing the application, the Court of Criminal Appeal confirmed that hardship arising from consequences the applicant brought about by his own conduct while on bail, such as jeopardising a planned wedding by breaching a bail condition, carries limited weight in satisfying the show cause threshold (at [15]).
- Under s 16B(h)(i) of the Bail Act 2013, offences committed while an accused is on bail are "show cause" offences, requiring the applicant to demonstrate on the balance of probabilities that continued detention is not justified (at [3]-[4]).
- A combination of hardship factors, including disruption to family finances, dependency of relatives, and potential job losses, will not satisfy the show cause requirement where the evidence does not exclude alternative sources of support or establish genuine, irreplaceable hardship (at [16]-[17]).
- Where an applicant's criminal history demonstrates that family support has not previously prevented serious offending, a court may find that even strict bail conditions would be inadequate to address the ongoing risk posed to public safety (at [18]).
- An application under s 67 of the Bail Act 2013 following a Supreme Court bail decision is determined afresh by the Court of Criminal Appeal and is neither an appeal from nor a review of the earlier decision; by operation of s 67(2) and s 29 of the Criminal Appeal Act 1912, the court must be constituted by more than a single judge (at [4]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) s 16B(h)(i); s 67(1)(e); s 67(2)
- Criminal Appeal Act 1912 (NSW) s 29
Cases
- Obeid v R (No.2) [2016] NSWCCA 321
- Trinh v R [2016] NSWCCA 110