Citation: Plassaras v Director of Public Prosecutions (NSW) [2018] NSWCCA 218
Court: Court of Criminal Appeal
Date: 5 October 2018
Judges: Basten JA; Johnson J; R A Hulme J
Background
The applicant faced charges of robbery in company with wounding and armed robbery with wounding under s 98 of the Crimes Act 1900 (NSW), offences carrying a maximum penalty of 25 years' imprisonment. The charges arose from a single incident on 4 April 2018 in which a victim was attacked near his home, suffered a fractured cheekbone and serious facial lacerations, and had his car keys stolen. The applicant was on bail at the time of the alleged offences.
Following his arrest on 19 April 2018, the applicant made successive release applications. The Local Court refused bail on 20 April 2018; the Supreme Court (Fullerton J) refused it on 5 July 2018; a further Supreme Court application was declined for hearing by McCallum J under the repeat-application restrictions in s 74 of the Bail Act 2013 (NSW). The matter was then directed to the Court of Criminal Appeal, which has jurisdiction where a bail decision has been made by the Supreme Court.
The applicant's primary argument for release was that he was needed to care for his elderly mother, who suffered from mild dementia, diabetes, bilateral knee replacements, and interstitial lung disease.
Legal Issues
- Whether the applicant had shown cause why his detention was not justified, as required under ss 16A and 16B(1)(h)(i) of the Bail Act 2013, given that he was on bail at the time the alleged offences were committed.
- Whether the evidence of his mother's care needs was sufficient to establish that cause.
- Whether the application had any reasonable prospect of success, in circumstances where no error in earlier refusals had been identified.
Decision
Because the applicant was on bail when the offences were allegedly committed, the charges were "show cause" offences under the Bail Act. This meant the applicant bore the burden of demonstrating why continued detention was not justified. R A Hulme J, with whom Johnson J agreed, conducted a de novo review while having regard to the earlier findings of Fullerton J.
On the strength of the prosecution case, R A Hulme J agreed with Fullerton J that the case was of at least reasonable strength. The applicant had acknowledged that he was the sole driver of his car, which was identified as the vehicle used by the offenders while they waited to ambush the victim. CCTV footage also placed him with his alleged co-offender near the abandoned stolen vehicle two days later.
On the carer argument, the court found the evidence insufficient. There was no material before the court about what commercial care arrangements had been made since the applicant's arrest, whether those arrangements were still in place, or what other community services might be available. The applicant's brother had moved back to the family home but the evidence did not adequately explain why he could not continue to assist, including during his forthcoming short trip abroad.
Basten JA added that the application could have been dismissed summarily on the additional basis that the applicant had not identified any error, or any aspect of unreasonableness, in the earlier bail refusals. In his Honour's view, without such a foundation, the application had no reasonable prospect of success.
Orders Made
- The release application was refused.
Key Takeaways
- Refusing bail in a "show cause" case, the Court of Criminal Appeal confirmed that where an applicant was on bail at the time of the alleged offences, the burden lies firmly with the applicant to justify release.
- A claim of family carer hardship will not satisfy the show cause threshold where the evidence is sparse. The court identified specific gaps: no information about existing commercial care, no evidence that alternative arrangements had been explored, and no adequate explanation of why other family members could not fill the carer role.
- Under s 75 of the Bail Act, applications to the Court of Criminal Appeal are heard de novo; however, prior findings of bail judges remain relevant and the court may take them into account.
- Basten JA indicated that where an applicant fails to identify any error or unreasonableness in earlier refusals, the Court of Criminal Appeal may dismiss a further bail application summarily on the basis that it has no reasonable prospect of success, consistent with his Honour's earlier observations in Trinh v R [2016] NSWCCA 110.
- A lengthy criminal history that includes multiple prior breaches of bail and conditional liberty bears directly on the assessment of show cause and unacceptable risk, and may undercut the credibility of explanations offered by the applicant.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 67, 74, 75
- Crimes Act 1900 (NSW), s 98
Cases:
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- R v Kugor [2015] NSWCCA 14
- Trinh v R [2016] NSWCCA 110
- Viavattene v R [2018] NSWCCA 197