R v HAZ

Citation: R v HAZ [2018] NSWSC 386
Court: Supreme Court of New South Wales
Date: 28 March 2018
Judge(s): Garling J

Background

The applicant, referred to throughout as HAZ, was arrested in August 2017 and charged with two offences. He was held in custody from the time of his arrest.

A first bail application was heard and refused by Adamson J in October 2017. Her Honour identified concerns relating to the risk of the applicant committing further serious offences, and found that the Crown case was not weak.

HAZ brought a second bail application to the Supreme Court in January 2018, heard in March 2018. Because it was a second application to the same court, the provisions of s 74 of the Bail Act 2013 applied, requiring the applicant to first establish a threshold entitlement to be heard at all.

Legal Issues

• Whether s 74 of the Bail Act 2013 was satisfied, specifically whether the applicant could show on the balance of probabilities that new material information was available or that relevant circumstances had changed
• Whether an increased monetary security offer constituted a relevant change of circumstances
• Whether a proposal to wear a privately funded electronic monitoring device constituted new material information or a relevant change of circumstances
• Whether the likely delay until trial had changed in a legally relevant way
• Whether the absence of additional prosecution evidence disclosed a weakening of the Crown case
• Whether the applicant's conduct in custody (absence of attempts to interfere with witnesses) was a relevant change of circumstances

Decision

The s 74 threshold requirement

Section 74 of the Bail Act 2013 commands a court to refuse to hear a second bail application unless satisfied that grounds for a further application exist. The court must first be satisfied, on the balance of probabilities, that new material information is available or that relevant circumstances have changed (at [5]-[8]). Garling J examined each of the four matters raised by the applicant in turn.

Issue 1: Increased monetary security

The applicant's parents offered a charge over their home, with equity now said to be $500,000. The court found this was irrelevant. The Crown had not raised any concern about the applicant failing to appear at court, and a security order is directed solely at ensuring appearance. An increased security offer could not constitute a change of relevant circumstances in those circumstances (at [10]-[11]).

Issue 2: Electronic monitoring device

The applicant proposed wearing a privately funded electronic monitoring device capable of transmitting location data to a central system, alerting a designated police officer to curfew violations and other events. The court accepted the device had technical capabilities but was not persuaded it would have any meaningful effect on the risk of the applicant committing further serious offences, other than possibly deterring curfew breaches. Adamson J had found the primary bail concern was the risk of further serious offending, heightened by the nature and seriousness of the charges and the strength of the Crown case. The device did not address that concern in a way that amounted to a relevant change of circumstances (at [12]-[23]).

Issue 3: Trial delay

At the time of the first application, Adamson J had predicted a trial in August or September 2018. Senior counsel submitted the trial was now unlikely before mid-2019, but provided no affidavit evidence, no enquiry result from District Court listing authorities, and no material beyond a general assertion about listing experience. The court declined to accept the submission without proper supporting material, and noted that the existence of some future delay, without more, did not constitute a relevant change of circumstances (at [24]-[30]).

Issue 4: Absence of further prosecution material and conduct in custody

The applicant argued that the absence of additional material implicating him meant the Crown case had weakened. The court rejected this reasoning as too speculative and general: a full brief might equally strengthen the prosecution case, for example through DNA evidence. The court also rejected the submission that the applicant's failure to misuse telephone access from custody demonstrated reduced risk. Monitored telephone contact from a correctional centre is already recorded and announced as such. The absence of such conduct in that environment was not a relevant circumstance within s 74 (at [31]-[37]).

Conclusion on the threshold

The court was not satisfied that any of the four matters constituted changed circumstances or new material information relevant to the grant of bail. The legislation therefore required the application to be dismissed without it being heard on its merits (at [40]-[41]).

Orders Made

• Application dismissed

Key Takeaways

• Section 74 of the Bail Act 2013 imposes a mandatory threshold: a court must refuse to hear a second bail application unless satisfied on the balance of probabilities that new material information is available or that relevant circumstances have changed (at [5]-[7]).
• An increased monetary security offer is not a relevant change of circumstances where the Crown has not identified failure to appear as a bail concern, because security conditions are directed solely at ensuring court attendance (at [10]-[11]).
• Refusing to hear the application, the Supreme Court held that a proposal to wear a privately funded electronic monitoring device did not constitute a relevant change of circumstances where the primary bail concern was the risk of further serious offending, rather than curfew compliance (at [22]-[23]).
• Assertions about future trial delay must be supported by proper evidence. A bare submission from senior counsel about general listing experience, without affidavit material or enquiry from listing authorities, was insufficient to establish a relevant change in circumstances (at [28]-[30]).
• Under s 74, new information must be material to the grant of bail in the sense that, on the probabilities, it would impact on the court's decision to grant bail. Information that does not meet that standard does not enliven the court's jurisdiction to hear the second application (at [39]-[40]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013
- Crimes Act 1900

Cases
- Not Applicable