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Supreme Court 27 November 2018

R v Davis

[2018] NSWSC 1831

Homicide
BAIL MURDER SHOW CAUSE STRENGTH OF CROWN CASE NO PRIOR RECORD KILLING OF INTRUDER

Citation: R v Davis [2018] NSWSC 1831
Court: Supreme Court of New South Wales
Date: 27 November 2018
Judge(s): Rothman J

Background

The accused was charged with murder under s 18 of the Crimes Act 1900 (NSW), following an incident on 10 August 2018. The Crown alleged that the accused struck and fatally killed a person who had unlawfully entered premises where the accused and a co-accused were living. The deceased was found to have been carrying a replica pistol and knuckle duster at the time.

The Crown's account, largely drawn from a statement by the co-accused, was that the deceased left the premises taking property belonging to both occupants. The co-accused then pursued the deceased to recover her bag, a scuffle ensued, and the accused subsequently struck the deceased across the head with a samurai sword. The blow proved fatal.

The accused applied to the Supreme Court for bail. He had no prior criminal record of any significance, and this was the first time he had come to the attention of police in relation to any serious matter.

  • Whether the accused could satisfy the "show cause" requirement under s 16A of the Bail Act 2013 (NSW), demonstrating that his continued detention was not justified
  • Whether any of the four bail concerns under s 17 of the Bail Act gave rise to an unacceptable risk
  • Whether any identified unacceptable risks could be sufficiently managed through bail conditions
  • Whether a condition prohibiting contact between the accused and the co-accused should be imposed to prevent collusion

Decision

Rothman J first addressed the "show cause" threshold under s 16A. Murder is a "show cause" offence under s 16B, meaning the applicant bore the burden of demonstrating that continued detention was not justified. His Honour assessed the strength of the Crown case, noting that although a deliberate act causing death could be established, the Crown faced meaningful difficulty in negativing self-defence, including defence of another.

The Crown was required to prove beyond reasonable doubt that the accused did not hold a subjective belief that his conduct was necessary to protect the co-accused, and further that his response was not objectively reasonable in the circumstances as he perceived them. His Honour accepted that self-defence and provocation were at least arguable on the evidence before the court, particularly given that the deceased had broken into the premises, was armed with items the co-accused believed to be real weapons, and had taken property from the occupants. These features created sufficient weakness in the Crown case to satisfy the show cause requirement.

Turning to the bail concerns in s 17, Rothman J found no unacceptable risk of failure to appear or commission of a further serious offence. His Honour did identify an unacceptable risk relating to the safety of individuals and potential interference with witnesses under s 17(1)(c) and (d). However, he concluded that those risks could be adequately ameliorated by the imposition of conditions proposed by the applicant, and accordingly granted bail.

On the Crown's submission that a condition prohibiting contact between the accused and the co-accused should be imposed to prevent collusion, Rothman J declined to impose such a condition. His Honour observed that the co-accused had already provided a statement that appeared exculpatory of both parties, that she could already contact the accused while he was in custody, and that he had not previously seen such a condition imposed on co-accused persons. He left open the question of whether such a condition could lawfully be imposed.

Orders Made

• In the matter of R v Blake Davis, on the charge of murder said to have been committed on 10 August 2018, bail is granted subject to conditions as set out in the court file

Key Takeaways

  • Under s 16A of the Bail Act 2013 (NSW), an applicant charged with a "show cause" offence must satisfy the court that continued detention is not justified before the court proceeds to assess bail concerns under s 17.
  • Arguable defences, including self-defence and defence of another, can contribute to satisfying the show cause threshold, particularly where the Crown's ability to negative those defences at trial is uncertain on the material before the court.
  • A complete absence of prior criminal history was treated as a significant factor, both in relation to the show cause requirement and in assessing the risk of failure to appear.
  • An identified unacceptable risk under s 17(1)(c) or (d) does not automatically preclude bail; under s 18 of the Bail Act, the court may find that appropriate conditions are capable of reducing that risk to an acceptable level.
  • Rothman J expressly declined to resolve whether a condition prohibiting co-accused persons from communicating with one another could be lawfully imposed, leaving that question open for future determination.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18
- Crimes Act 1900 (NSW), s 18

Cases cited: None recorded in the judgment metadata or provided text.