Citation: R v Hird [2017] NSWSC 1400
Court: Supreme Court of NSW
Date: 13 October 2017
Judge(s): Schmidt J
Background
The accused faced serious drug charges and had previously made a bail application that was refused by Wilson J in April 2017. On that occasion, proposed entry into a six-month residential drug rehabilitation program had been advanced in support of bail. The same proposal was again relied upon in the second application.
When the second bail application came before Schmidt J, a threshold question arose before the merits could be considered: whether the requirements of s 74 of the Bail Act 2013 (NSW) were satisfied so as to permit a further release application to be heard at all.
The applicant pointed to two developments since the first refusal: a co-accused had been charged, plea negotiations were underway between the parties (with a committal for sentence anticipated), and a recent Court of Criminal Appeal decision had clarified the approach to sentencing for serious drug offences.
Legal Issues
- Whether the commencement of plea negotiations, and the charging of a co-accused, constituted "changed circumstances relevant to the grant of bail" under s 74(3)(c) of the Bail Act 2013, so as to enliven the court's jurisdiction to hear a further release application.
- Whether the Court of Criminal Appeal's decision in Robertson v R [2017] NSWCCA 205 (clarifying the sentencing approach to drug trafficking) itself constituted a changed circumstance relevant to bail.
Decision
Schmidt J confirmed that an actual change in the charges laid or pressed, or the actual entry of a plea, can constitute a change in circumstances relevant to the grant of bail under s 74(3)(c). This is because the nature and seriousness of the offence, the strength of the prosecution case, and the likelihood of a custodial sentence are all matters the court must weigh when assessing bail concerns under ss 18 and 19 of the Act. Any alteration to those underlying facts can therefore be relevant to whether an accused poses unacceptable risks.
However, the court drew a firm line between a concluded change and mere negotiations that may or may not produce an outcome. The fact that plea negotiations were on foot, with a possible but not yet determined result, did not satisfy the statutory threshold. The charging of a co-accused, combined with ongoing negotiations, fell short of what s 74(3)(c) required. The position would change only if those negotiations produced an actual alteration in the charges or an entry of a plea.
On the Robertson argument, Schmidt J was not satisfied that the sentencing clarification in that case gave rise to changed circumstances relevant to bail. Given the serious nature of the charges against the accused, it was not apparent that the availability of an intensive correction order would be of practical relevance to her sentence if convicted. Additionally, Robertson followed the 2015 decision in EF v R and concerned sentencing principles rather than bail, so it could not be said to represent a change in circumstances relevant to the grant of bail.
The court concluded that the second application could not be entertained. Section 74 required the court to refuse to hear the application, as none of the grounds specified in s 74(3) had been made out.
Orders Made
• The Court refused to hear Ms Hird's second application for bail, as she had not established grounds for a further release application as specified in s 74(3) of the relevant legislation.
Key Takeaways
- Under s 74(3)(c) of the Bail Act 2013, a change in circumstances "relevant to the grant of bail" requires an actual, concluded change, not merely the possibility of one. Ongoing plea negotiations that have not yet produced a result do not meet this threshold.
- A charge alteration or the entry of a plea can constitute changed circumstances under s 74(3)(c), given that matters such as offence seriousness and the likelihood of a custodial sentence are directly relevant to bail assessments under s 18.
- Refusing the application, the Supreme Court confirmed that a co-accused being charged and negotiations being "on foot" did not, of themselves, change the circumstances relevant to bail where the first refusal remained otherwise undisturbed.
- A Court of Criminal Appeal decision clarifying sentencing principles for drug trafficking did not constitute a change in circumstances relevant to bail, particularly where its practical application to the accused's circumstances was uncertain and the decision itself predated the second application by following earlier authority.
- Section 74 operates as a jurisdictional bar: where none of the prescribed grounds in s 74(3) are established, the court must refuse to hear the further release application rather than proceed to assess its merits.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 18, 19, 74
Cases
- EF v R [2015] NSWCCA 36
- R v Daniel [2014] NSWSC 1968
- R v Farrell [2016] NSWSC 1278
- R v Hird (Supreme Court (NSW), Wilson J, 6 April 2017, unreported)
- R v Tasker (No 2) [2015] NSWSC 467
- Robertson v R [2017] NSWCCA 205