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Court of Criminal Appeal 5 September 2018

Viavattene v R

[2018] NSWCCA 197

Public order & justice offences
CRIMINAL LAW BAIL RELEASE APPLICATION INTIMIDATION OFFENCES SHOW CAUSE PROSPECTS OF APPEAL

Citation: Viavattene v R [2018] NSWCCA 197
Court: Court of Criminal Appeal, NSW
Date: 5 September 2018
Judges: Hoeben CJ at CL, McCallum J, Beech-Jones J

Background

The applicant was convicted in the Local Court of seven counts of stalking or intimidating another person with intent to cause fear of physical or mental harm, and one count of contravening an apprehended violence order (AVO). The offences involved the posting of videos on YouTube containing serious and scurrilous allegations against police officers, former neighbours, school staff, and a solicitor, along with threatening telephone calls made to a school about its principal. He was sentenced to a total term of 28 months' imprisonment with a non-parole period of 22 months.

The applicant appealed his convictions and sentences to the District Court, with that appeal listed for hearing on 8 October 2018. He had already been refused bail by the Supreme Court and then by the District Court. This application to the Court of Criminal Appeal was his third attempt to obtain bail pending that appeal.

At the time of the application, the applicant had been in custody for approximately five months and faced roughly one further month in custody before his appeal was to be heard.

  • Whether the applicant could "show cause" why his detention was not justified under the Bail Act 2013 (NSW), given that the offences triggered the show cause requirement
  • Whether the applicant's appeal against conviction had reasonable prospects of success, as a relevant factor in the bail assessment
  • Whether the risks posed by the applicant to the various victims could be adequately managed by bail conditions
  • Whether family hardship and difficulties experienced in custody were sufficient to tip the balance in favour of release

Decision

The Court conducted a de novo (fresh) hearing of the bail application, as required by the authorities, though it retained some scope to consider findings made by earlier decision-makers. The offences were "show cause" offences under the Bail Act, meaning the applicant bore the burden of demonstrating why his continued detention was not justified.

On the question of prospects of appeal, the Court examined the prosecution evidence in detail, including telephone records, video content, admissions made upon arrest, and witness testimony. The applicant had not given evidence at the Local Court hearing and offered no evidence to support his defence that the evidence was fabricated. The Court concluded that the appeal prospects were not strong enough to constitute a substantial factor in favour of bail, while emphasising that the ultimate assessment of the appeal remained entirely a matter for the District Court.

The Court identified the evidence relating to the threatening telephone calls about the school principal as particularly significant. Those threats, which included explicit statements about killing the principal, were found to be highly relevant to the risk analysis and were described as material that would often prove fatal to any bail application on its own.

Weighing all factors, including the relatively short remaining period before the appeal hearing and the hardship experienced by the applicant's family, the Court found that cause had not been shown. It noted that the bail proposal put forward failed to address adequately the risks to the various individuals who had been targeted by the applicant's conduct, and that the evidentiary material concerning the applicant's difficulties in custody was presented in a form that made it difficult to act upon.

Orders Made

  • The release application was dismissed.
  • Bail was refused.

Key Takeaways

  • A bail application to the Court of Criminal Appeal under s 49 of the Bail Act 2013 is heard de novo, though findings from earlier bail decisions may carry some weight.
  • Under the show cause framework, where offences are of the kind specified in s 16B(1)(h)(i) of the Bail Act, the applicant bears the burden of demonstrating that continued detention is not justified, and relatively modest prospects of success on appeal will not, by themselves, discharge that burden.
  • Refusing bail in circumstances where only one month remained before the appeal hearing was not regarded as rendering the appeal nugatory, particularly where the applicant still faced a substantial minimum custodial term regardless of outcome.
  • Evidence of family hardship and difficulties experienced in custody must be presented in proper evidentiary form; bare assertions in correspondence carry limited weight.
  • Where a bail applicant's conduct included explicit and graphic threats to kill, the Court treated that conduct as a factor capable on its own of defeating the application, absent a bail proposal that adequately addressed the ongoing risks to those threatened.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16B(1)(h)(i), 49, 67(1)(e)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13(1), 14(1)
- Criminal Code 1995 (Cth), s 474.17(1)

Cases:
- R v Kugor [2015] NSWCCA 14
- R v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions (NSW) v Tony MAWAD [2015] NSWCCA 227
- Trinh v R [2016] NSWCCA 110
- Morgan v District Court of New South Wales [2017] NSWCA 105
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- R v Peter Viavattene, Supreme Court, 21 June 2018 (unreported)
- R v Peter Steven Viavattene, District Court, 30 July 2018 (unreported)