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Supreme Court 15 December 2017

R v HD

[2017] NSWSC 1756

Assault & violenceFirearms & weapons
BAIL SHOW CAUSE REQUIREMENT ASSESSMENT OF STRENGTH OF CROWN CASE BAIL REFUSED

Citation: R v HD [2017] NSWSC 1756
Court: Supreme Court of New South Wales
Date: 15 December 2017
Judge(s): Garling J

Background

The applicant, referred to as HD, was arrested in May 2016 and charged with three offences allegedly committed in March 2016: discharging a firearm with intent to cause grievous bodily harm, knowingly participating in a criminal group, and shooting at a person with intent to commit murder. He had been in custody since his arrest, with a trial scheduled to commence in October 2018 in the District Court.

The alleged incident involved a pursuit by car in the early hours of the morning, during which shots were fired at a vehicle carrying the victim. The Crown alleged that HD was personally identified by the victim as the man who pointed a gun at him at close range and pulled the trigger, the weapon misfiring before the victim could escape.

HD had previously applied for bail in October 2016, which was refused by Adams J. The present application was his second, requiring him to first establish that there were grounds for a further application under s 74 of the Bail Act 2013.

  • Whether the applicant had established grounds to bring a second bail application under s 74 of the Bail Act 2013, given the earlier refusal.
  • Whether the applicant could show cause why his detention was not justified, as required under s 16A of the Bail Act for "show cause" offences.
  • Whether, if cause were shown, the risks associated with release could be reduced to an acceptable level under the unacceptable risk test in the Bail Act.

Decision

Garling J accepted that there were grounds for a further application under s 74, primarily because new material had emerged since the first application. Most significantly, a photo identification process conducted in April 2017 resulted in the victim failing to identify HD, instead selecting another person. This was material information not available to the court at the earlier hearing.

On the show cause requirement, the court assessed the strength of the Crown case in detail. Despite the failed photo identification, Garling J found the case remained strong. The Crown's evidence included the victim's direct identification of HD based on prior dealings, surveillance recordings from a police van in which HD and co-accused discussed the shooting in incriminating terms, and forensic evidence of gunshot residue inside and outside the vehicle associated with the accused. The court accepted that the photo identification failure and the victim's criminal history were matters for the jury, but did not regard them as sufficiently undermining the overall Crown case.

The court also acknowledged the undesirable length of time HD had spent in custody awaiting trial, but weighed this against the seriousness of the offences. One charge amounted to attempted murder in planned circumstances, and but for the weapon misfiring, the victim would likely have been killed. Garling J found the applicant had not demonstrated that his detention was not justified, and that the risks associated with release, particularly to community safety and to the victim who remained a potential witness, could not be adequately managed by conditions.

The bail application was accordingly dismissed.

Orders Made

  • The bail application was dismissed.

Key Takeaways

  • Refusing the second bail application, the Supreme Court confirmed that a failed photo identification and a complainant's poor character are factors for a jury to weigh, not automatically determinative of whether the Crown case is strong at a bail hearing.
  • Under s 74 of the Bail Act 2013, a court that has previously refused bail may only hear a fresh application where new material information or changed circumstances are established; here, the failed identification process satisfied that threshold.
  • Where offences fall within the "show cause" category under s 16B(1)(d)(i) of the Bail Act, the burden lies on the applicant to demonstrate why detention is not justified, and failure to discharge that burden requires the court to refuse bail without proceeding to the unacceptable risk test.
  • The court treated the planned nature of the alleged offence, combined with incriminating conversation recorded by surveillance device, as significant factors supporting both the strength of the Crown case and the risk to community safety.
  • Extended pre-trial custody was acknowledged as a consideration, but did not displace the court's assessment that release on conditions would pose an unacceptable risk given the gravity of the charges and the vulnerability of the key witness prior to sentencing.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B(1)(d)(i), 74
- Crimes Act 1900 (NSW), ss 29, 33A(1)(a), 93T(1A)

Cases:
- No cases were cited in the judgment.