AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 31 August 2018

Katelaris v Director of Public Prosecutions (NSW)

[2018] NSWCCA 193

Drugs
CRIMINAL LAW RELEASE APPLICATION SHOW CAUSE REQUIREMENT BREACH OF BAIL UNUSUAL CIRCUMSTANCES SHOW CAUSE REQUIREMENT ESTABLISHED

Citation: Katelaris v Director of Public Prosecutions (NSW) [2018] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
Date: 31 August 2018
Judges: Beazley P; R A Hulme J; Hamill J

Background

The applicant, a deregistered medical practitioner and self-described advocate for medicinal cannabis, faced serious drug charges arising from a police search of his home in May 2017. The search followed a national television broadcast in which he displayed a laboratory at his property. Police charged him with supplying cannabis leaf (over 10kg), supplying a large commercial quantity of cannabis oil (over 8kg), and manufacturing that same quantity of cannabis oil. Each of those large commercial quantity offences carries a maximum penalty of life imprisonment.

While on conditional bail for those charges, the applicant was arrested again in April 2018 after being observed driving erratically on the Central Coast. He was then charged with further drug supply and possession offences, and with driving with an illicit substance (THC) in his blood. Those subsequent offences also constituted a breach of his existing bail.

The applicant had been in custody since 13 April 2018. An earlier release application to the Supreme Court had been refused in June 2018. The present application before the Court of Criminal Appeal was a re-hearing on the merits, not a review or appeal on legal error.

  • Whether the applicant could satisfy the "show cause" requirement under ss 16A and 16B of the Bail Act 2013 (NSW), which applied because of the large commercial quantity charges and because the alleged April 2018 offences constituted a breach of bail
  • Whether, if cause was shown, any bail concerns under s 17 amounted to an "unacceptable risk" for the purposes of s 19
  • Whether conditions could be fashioned to mitigate any such risks sufficiently

Decision

The Court confirmed that the "show cause" requirement in ss 16A and 16B is a distinct and independent threshold from the unacceptable risk assessment in ss 17 to 19, though the same facts can inform both inquiries. The Court acknowledged the prosecution's strong case and the applicant's prior breach of bail, but noted that the "show cause" analysis turns on the particular circumstances of each case.

The Court found the applicant's situation to be genuinely unusual. He did not present as a typical commercial drug offender, but as a committed advocate for medicinal cannabis who had provided material suggesting his activities were motivated by therapeutic rather than commercial purposes. The Court also noted that the legal question of "necessity" as a potential defence would involve factual and legal complexity that warranted ventilation at trial. The applicant's likely self-representation, and the impact of continued custody on his ability to prepare a complex defence, were also relevant considerations.

The Court acknowledged concerns about the risk of further offending, including continued supply or manufacture of cannabis and the possible risk to community safety if the applicant resumed advising or treating patients. However, taking a combination of factors together, including the community support the applicant enjoyed, the time already spent in custody, and the upcoming trial date, the Court was satisfied that cause had been shown.

On the question of unacceptable risk, the Court held that the conditions imposed were sufficient to mitigate the identified bail concerns. Although each individual factor might not alone have been enough, their cumulative weight was sufficient to justify the grant of bail.

Orders Made

  • Bail granted on the following conditions:
  • To be of good behaviour
  • Residence condition: to reside at a specified address
  • Reporting condition: to report to a specified police station three days per week (Monday, Wednesday and Friday) between 8:00am and 6:00pm
  • To appear at the Sydney District Court on 5 November 2018 for trial, and at the Newcastle Local Court on 23 August 2018, and at such other courts and dates as required
  • Not to see or communicate with persons for the purpose of offering therapeutic, quasi-therapeutic or purportedly therapeutic advice, including advice about cannabis or cannabis products
  • Not to procure, manufacture, possess, cultivate, distribute or supply cannabis or cannabis derivatives
  • Not to take any illegal or prescription drugs other than those prescribed by a doctor
  • To submit to non-invasive drug testing at the direction of a police officer who holds reasonable grounds to believe the applicant may have consumed drugs in breach of the bail acknowledgment

Key Takeaways

  • The "show cause" requirement under ss 16A and 16B of the Bail Act 2013 operates independently of the unacceptable risk assessment under ss 17 to 19, though the same factual matters may be relevant to both stages of the analysis.

  • Where an accused faces a "show cause" threshold, the inquiry is inherently fact-specific: the Court of Criminal Appeal emphasised that decided cases offer limited guidance and that unusual circumstances can collectively satisfy the requirement even where no single factor would do so alone.

  • A combination of factors, rather than any single compelling consideration, can meet the "show cause" burden, particularly where the accused faces a complex trial, is likely to be self-represented, and has community support.

  • Bail conditions can sufficiently mitigate identified concerns about further offending and community safety so as to eliminate "unacceptable risk" under s 19, even where those concerns are genuine and the underlying charges are extremely serious.

  • The Court noted significant legal difficulties historically associated with a defence of necessity in criminal proceedings, citing cases including R v Dudley and Stephens and R v Rogers, signalling that the applicant's proposed defence faced substantial doctrinal challenges at trial.

Legislation and Cases Referenced

Legislation

  • Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 49, 67(1)(e)
  • Court Suppression and Non-publication Orders Act 2010 (NSW)
  • Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases

  • Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
  • Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
  • Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
  • Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
  • R v Cairns [1999] 2 Crim App Rep 137
  • R v Dudley and Stephens (1884) 14 QBD 273
  • R v Katelaris [2018] NSWSC 931
  • R v Loughman [1981] VR 443
  • R v Rogers (1996) 86 A Crim R 542