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Supreme Court 3 August 2017

Fantakis v R; Woods v R

[2017] NSWSC 1840

Homicide
CRIMINAL LAW APPLICATION FOR BAIL WHERE EARLIER APPLICATION REFUSED S 74 BAIL ACT 2013 SHOW CAUSE PROVISION RESPONSIBILITY FOR DELAY

Citation: Fantakis v R; Woods v R [2017] NSWSC 1840
Court: Supreme Court of New South Wales
Date: 3 August 2017
Judge(s): Wilson J

Background

Two accused men applied for bail in connection with the alleged murder of a man who disappeared in August 2011. The first applicant faced a charge of murder in the Supreme Court, along with a range of other charges in the District and Local Courts. The second applicant faced a charge of accessory after the fact to murder, on the allegation that he assisted in disposing of the victim's body.

Both men had been in custody since their arrests in October 2013, following a lengthy police investigation. Previous bail applications had been refused in both the Local and Supreme Courts, including a refusal by Garling J in September 2016. The matter had a protracted procedural history, with multiple trial dates vacated, the Crown remaining ready to proceed throughout.

By the time of this application, the matter was listed for trial in February 2018. If bail were again refused, both men would face approximately four years and four months on remand before trial.

  • Whether each applicant had established grounds under section 74 of the Bail Act 2013 (NSW) to justify a further release application, given that an earlier application had already been refused by this Court
  • Whether each applicant could show cause, under section 16A of the Bail Act 2013, why their continued detention was not justified
  • What weight to give to the length and causes of pre-trial delay, the applicants' ability to prepare their cases from custody, medical needs, and risks to witnesses

Decision

Section 74 threshold. Wilson J found both applicants had cleared the preliminary hurdle allowing a further application to be heard. The first applicant's recent diagnosis with a delusional disorder and his transfer to Long Bay Prison Hospital constituted a change in circumstances under section 74(3)(c). The second applicant satisfied both section 74(3)(c) (changed circumstances by reason of delay) and section 74(3)(a) (he had been unrepresented before Garling J but now had legal representation).

Show cause requirement. On the substantive question, her Honour was not persuaded that either applicant had shown cause why detention was not justified. The Crown case was described as strong, founded on surveillance material, phone intercepts, and extensive evidence of conduct before and after the disappearance of the deceased. Significant dangers to witnesses were identified, grounded in evidence of threats and intimidation.

Delay and responsibility for it. Her Honour acknowledged the length of time the applicants had spent on remand and accepted that delay is a relevant consideration. However, she noted that a substantial portion of the delay was attributable to the applicants themselves, through multiple applications to vacate trial dates and other procedural steps. The Crown had been ready to proceed throughout.

Medical treatment and other factors. The first applicant's psychiatric diagnosis and the difficulties it created for trial preparation were considered, but her Honour noted that he had only accepted psychiatric treatment once in custody, and that there was no evidence he could not be adequately treated within the custodial system. The second applicant's arguments regarding his willingness to comply with conditions and the absence of harm to witnesses while previously on bail were considered but not found persuasive in light of the overall circumstances.

Orders Made

  • The application for bail by the first applicant is refused.
  • The application for bail by the second applicant is refused.

Key Takeaways

  • Under section 74 of the Bail Act 2013, a change in an accused's medical circumstances or a change in legal representation can each constitute sufficient grounds to permit a further bail application where an earlier one has been refused by the same court.
  • Prolonged pre-trial delay is a relevant consideration in bail applications, but courts will examine the extent to which the applicant contributed to that delay before according it significant weight.
  • Refusing bail in these circumstances, the Supreme Court placed substantial emphasis on the strength of the Crown case and the identified risk to witnesses, treating those factors as outweighing the hardships of extended remand.
  • A psychiatric diagnosis does not automatically favour a bail application where the applicant had not sought treatment in the community and where the custodial system had demonstrated capacity to provide care.
  • Where an accused is unrepresented at an earlier bail application but subsequently obtains legal representation, section 74(3)(a) of the Bail Act 2013 provides an independent basis for the court to entertain a fresh application.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 74
- Crime Commission Act 2012 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 60(1)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8

Cases
- Cain (No 1) (2001) 121 A Crim R 365
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
- DPP v Tikomaimaleya [2015] NSWCA 83
- Filipetti v R (1984) 13 A Crim R 335
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314