Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 2) [2017] NSWSC 1276
Court: Supreme Court of New South Wales
Date: 28 August 2017
Judge: Rothman J
Background
Three accused were being tried together in a judge-alone retrial. One accused, Mr Zraika, faced a charge of concealing a serious indictable offence, a charge carrying a maximum penalty of two years' imprisonment. His co-accused faced charges of murder and accessory before the fact to murder respectively. Mr Zraika was not in custody, as his bail had previously been dispensed with by consent.
The Crown Prosecutor made an oral, unsworn application from the bar table after Mr Zraika entered a public toilet in the court precinct at the same time as the Crown Prosecutor. No threat was made, and no improper conduct was alleged. The Crown Prosecutor nonetheless expressed genuine concern for his personal safety.
The Crown sought an order restricting Mr Zraika's use of certain public facilities within the court precinct. The application was not supported by any evidence and the Crown did not identify any jurisdictional basis for the order sought.
Legal Issues
- Whether the court had jurisdiction to make an order restricting an accused person's access to public areas within the court precinct
- Whether, in the exercise of its discretion, the court should make such a restraining order in the absence of supporting evidence
- Whether the prior bail assessment, in which no unacceptable risk to community safety had been identified, remained relevant to the current application
Decision
Rothman J accepted for the purposes of the application that the Crown Prosecutor had genuine safety concerns, but noted the application was made entirely without evidence. No allegation of threatening conduct or improper behaviour by Mr Zraika was made.
On jurisdiction, the court accepted without deciding that its inherent jurisdiction as a superior court of record to facilitate the smooth conduct of proceedings might theoretically support such an order. Rothman J also noted that bail could in principle be revoked or made conditional, but expressed serious doubt about both jurisdictional bases, particularly the latter in the absence of a formal bail review application.
On the exercise of discretion, the court declined to interfere with Mr Zraika's liberty. The court pointed to the prior bail assessments by Johnson J (by consent of the Crown) and by RS Hulme AJ, neither of which identified Mr Zraika as posing an unacceptable risk to community safety. No new evidence had been placed before the court that would justify a different conclusion.
Rothman J observed that the situation was not unique to this trial: wherever an accused is on bail, Crown representatives and witnesses may encounter that person in public spaces. The court noted that if Crown representatives feel vulnerable, the appropriate response is for government to provide private access and facilities, not for the court to restrict the liberty of an accused person against whom no relevant risk finding has been made.
Orders Made
The Crown's application for orders restricting Mr Zraika's access to public facilities within the court precinct was dismissed.
Key Takeaways
- Rothman J refused to restrict an accused person's use of public court facilities where the application was unsupported by evidence and no threatening or improper conduct had been alleged.
- A prior bail assessment finding no unacceptable risk to community safety carries weight in subsequent applications; a court is not prepared to depart from such findings without fresh evidence.
- Under the Bail Act 2013, dispensing with bail requires assessment of concerns including risk of endangering community safety (ss 17, 18, 20 and 20A); an accused whose bail has been dispensed with by consent retains a liberty interest that cannot be curtailed without proper justification.
- The fact that an accused and Crown representatives may encounter one another in public spaces is an ordinary consequence of an accused not being in custody, and does not of itself warrant any restraining order.
- Jurisdictional basis for orders restricting an accused's movement within court precincts was left open by the court, with Rothman J accepting the inherent jurisdiction point without deciding it.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 20, 20A
Cases:
No cases were cited in the judgment.