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Supreme Court 19 December 2017

R v Fallon (a pseudonym)

[2017] NSWSC 1796

Drugs
CRIMINAL LAW BAIL RELEASE APPLICATION SHOW CAUSE OFFENCES “MATERIAL” S 74 BAIL ACT 2013 (NSW)

Citation: R v Fallon (a pseudonym) [2017] NSWSC 1796
Court: Supreme Court of New South Wales
Date: 19 December 2017
Judge: Campbell J

Background

The accused (referred to by the pseudonym "Fallon") faced eleven counts of drug supply and related offences, including the supply of substantial quantities of cocaine and knowingly dealing with proceeds of crime totalling close to $500,000. He had pleaded not guilty and was committed to stand trial in the Sydney District Court in August 2018.

By December 2017, Fallon had made seven previous bail applications across the Local Court, the Supreme Court, and the Court of Criminal Appeal. All had ultimately been refused. The current application was his proposed third release application to the Supreme Court.

The applicant sought leave under s 74 of the Bail Act 2013 (NSW) to bring yet another release application. The sole basis advanced was that transcript evidence from a contested committal hearing, which postdated the most recent Supreme Court refusal by Latham J, constituted fresh "material information" that had not been before the court in earlier applications.

  • Whether the committal transcript constituted "material information relevant to the grant of bail" within the meaning of s 74 of the Bail Act 2013 (NSW), such that a further release application could be entertained.
  • What the correct legal standard for "material" means in this context, particularly drawing on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
  • Whether, assessed against that standard, the new information might have changed the outcome of any previous release application.

Decision

Campbell J identified the legislative purpose of s 74 as limiting repeat bail applications to those supported by genuinely new and consequential information. His Honour noted that ss 73 and 74 operate together to emphasise the restraint courts should exercise when hearing subsequent applications. This was particularly pertinent given that this was a proposed eighth application in total.

Drawing on the High Court's reasoning in Australian Broadcasting Tribunal v Bond, Campbell J held that information is "material" for the purposes of s 74 only if the outcome of a previous release application might have been different had that information been presented at the time. This requires a court to understand the reasons for the prior refusal and then assess whether the new information could have altered that result.

The new information was the committal transcript showing that Witness X had given inconsistent evidence, including a statement that he had never actually met the applicant. Campbell J accepted that the witness's evidence was difficult to follow, but noted that it would remain open to a jury to accept the account of the tripartite meeting on 25 November 2015. More significantly, even setting aside the sequence most directly tied to Witness X's evidence, the remaining charges involved over 2.5 kilograms of cocaine supported by extensive surveillance, telecommunications intercepts, and other police evidence forming a body of proof of considerable strength.

Campbell J concluded that the possibility a single witness might not fully satisfy a jury at trial was not capable of altering the earlier assessment of the Crown case's strength. The proposed information would not have changed the outcome of the previous applications, and the threshold in s 74(1) had not been met. The court was therefore required by law to refuse to hear the application.

Orders Made

  • The applicant's release application was dismissed.
  • A suppression order was made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) suppressing information tending to identify the applicant until the conclusion of criminal proceedings against him.

Key Takeaways

  • Under s 74 of the Bail Act 2013 (NSW), a further release application to the same court requires the applicant to demonstrate that additional information is "material," meaning the outcome of the previous application might have been different had that information been presented at the time.
  • Campbell J confirmed, applying Australian Broadcasting Tribunal v Bond, that the "material information" threshold is an objective legal standard involving a mixed question of fact and law, not merely a question of whether information is new or relevant in a general sense.
  • Refusing to hear the application, the Supreme Court found that inconsistency or weakness in a single witness's committal evidence does not automatically undermine a Crown case built on a broad range of independent evidence, including surveillance and telecommunications intercepts.
  • The legislative purpose of s 74, read with s 73, is to impose meaningful restraint on repeated bail applications, and the history of multiple prior applications is a relevant contextual consideration when evaluating whether that bar has been overcome.
  • Suppression orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) remain available where publication of a judgment that necessarily canvasses the Crown case could prejudice the administration of justice, even where there is a strong public interest in open justice.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 18(1)(c), 71, 72, 73, 74, 75
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(a)
- Evidence Act 1995 (NSW), s 38

Cases:
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33