Citation: Director of Public Prosecutions v Stanley (a pseudonym) [2018] NSWCCA 48
Court: Court of Criminal Appeal, New South Wales
Date: 23 March 2018
Judge(s): Simpson JA, Fullerton J, McCallum J
Background
The respondent, a man charged with multiple child sex offences and child abuse material offences, had been granted bail by a Magistrate in December 2017 following his committal for trial to the District Court. The charges stemmed from a camping trip during which he was alleged to have sexually assaulted his daughter's 13-year-old friend, including by administering diazepam to her in a cordial drink. Subsequent examination of his electronic devices gave rise to further charges relating to images of his own daughter.
The prosecution brought a detention application to the Court of Criminal Appeal after an earlier application before Hamill J in the Supreme Court was refused, though tighter bail conditions were imposed at that stage. The Court of Criminal Appeal made an order revoking bail on 23 February 2018, with McCallum J providing the full reasons.
Legal Issues
- Whether the respondent had shown cause, within the meaning of s 16B of the Bail Act 2013 (NSW), why his detention was not justified, given that the principal charge was a "show cause" offence
- Whether, even if cause was shown, the respondent posed an unacceptable risk within the meaning of s 19 of the Bail Act 2013 (NSW) of failing to appear, committing a serious offence, endangering the safety of the complainants or the community, or interfering with witnesses or evidence
Decision
Show cause: McCallum J accepted that the respondent had shown cause why detention was not justified. Four factors collectively satisfied that threshold: approximately 11 months already spent in pre-trial custody; a further estimated 9 months before his November 2018 trial; compliance with strict bail conditions since his release; attendance at all court dates; and engagement with counselling not available in custody. The court emphasised that satisfying the show cause requirement is a separate and anterior question to the assessment of risk.
Risk of failing to appear: McCallum J was not persuaded that flight risk was unacceptable. The respondent had appeared voluntarily for the revocation application, his mother had posted $50,000 security, and appropriate conditions could address that risk. The strength of the Crown case and the prospect of a lengthy prison term did not automatically render flight risk unacceptable in the circumstances.
Risk of committing a serious offence: This was the decisive consideration. McCallum J found that the evidence disclosed a deeply disturbing pattern of sexual interest in young girls that the respondent had not acknowledged or begun to address therapeutically. His counselling, based on interim reports, appeared directed at managing his own anxiety about the proceedings rather than targeting the underlying conduct. Online conversations described by police as "predatory, intimidating and/or aggressive" with girls under 16, combined with a web search history immediately before the camping trip researching Valium dosages for a "50 kg female," significantly heightened the court's concern.
Adequacy of conditions: McCallum J concluded that no conditions could adequately address the risk of further offending, particularly offending facilitated through electronic devices. A condition limiting the respondent to one mobile telephone was considered extremely difficult to monitor and enforce. The respondent's mother did not give evidence about her capacity or willingness to enforce curfew requirements. Under s 19 of the Bail Act, the finding of unacceptable risk of committing a serious offence required bail to be revoked.
Orders Made
- The respondent's bail was revoked.
Key Takeaways
- Satisfying the "show cause" requirement under s 16B of the Bail Act 2013 (NSW) is a distinct threshold from the separate risk assessment under s 19; a respondent may show cause and still have bail revoked on unacceptable risk grounds.
- Under s 19 of the Bail Act, a finding of unacceptable risk of committing a serious offence is sufficient by itself to require revocation, without the court needing to be satisfied of all four risk categories.
- The prospect of a lengthy term of imprisonment upon conviction does not automatically translate into an unacceptable risk of flight, particularly where the respondent has attended court voluntarily and substantial security has been posted.
- Bail conditions addressing the use of electronic devices were found inadequate where a respondent had demonstrated a pattern of online conduct that was difficult to monitor; conditions are only efficacious if there is confidence they will be observed.
- Therapeutic engagement that is directed at managing a respondent's personal distress about proceedings, rather than at the offending behaviour itself, carries limited weight in the risk assessment.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16B (show cause offences), 19 (unacceptable risk)
- Crimes Act 1900 (NSW), s 38(a) (using intoxicating substance to commit indictable offence), s 61J(1) (aggravated sexual assault), s 61M(2) (aggravated indecent assault), s 91H(2) (producing or possessing child abuse material)
Cases cited: No cases were cited in the judgment.