Citation: Al Saleh v Director of Public Prosecutions [2019] NSWCCA 31
Court: Court of Criminal Appeal, NSW
Date: 22 February 2019
Judge(s): Basten JA; Button J; Lonergan J
Background
The applicant was arrested in February 2018 and charged with five offences arising from a shooting, including offences of violence and firearm offences. After an initial refusal of bail in the Local Court, he was granted conditional bail by that Court in June 2018. The prosecution then applied for a detention order in the Supreme Court's Common Law Division, which was granted by Fullerton J in July 2018.
The applicant subsequently filed a release application, originally in the Common Law Division, and then, following jurisdictional uncertainty, in the Court of Criminal Appeal. By the time the matter was heard in February 2019, approximately six months had elapsed since the original application was filed.
The hearing proceeded before the Court of Criminal Appeal in February 2019. By that stage, new developments had arisen in the committal proceedings, including a prosecution witness departing from an earlier statement, which the applicant relied upon as a material change of circumstances.
Legal Issues
- Whether the Supreme Court retained jurisdiction under s 66 of the Bail Act 2013 (NSW) to hear a release application where the applicant's current detention flowed from a Supreme Court detention order rather than a refusal of bail by another court
- Whether s 74 of the Bail Act 2013 (NSW) confers a positive power to hear a further release or detention application, or merely imposes conditions on an existing power
- Whether the applicant had demonstrated a sufficient change of circumstances to satisfy the threshold for a further release application
- Whether the combination of changed prosecution evidence, anticipated delay to trial, and hardship to the applicant's family justified release despite the seriousness of the charges
Decision
On jurisdiction and the interaction of ss 66 and 74: The Court held that s 74 does not itself confer power on any court to hear a bail application. It operates only as a conditional restriction on the exercise of an existing power. Separately, s 66(1) grants the Supreme Court power to hear a release application where bail has been refused by another court. The Court identified a significant ambiguity: read literally, s 66(1) is satisfied whenever another court has previously refused bail, regardless of the current detention status. The more purposive reading, that the section looks to the cause of the applicant's current detention, would in some circumstances strip the Supreme Court of power to deal with its own subsequent release applications, producing an anomaly. The Court adopted the broader reading but acknowledged the provision produces further anomalies and indicated that legislative amendment may be required to resolve the confusion.
On change of circumstances: The Court accepted that three matters were capable of constituting changed circumstances since the July 2018 detention order: a prosecution witness had contradicted an earlier statement during the committal hearing; the likely period before trial had extended significantly, with the trial unlikely to be reached before 2020; and the applicant's family business had deteriorated substantially while he remained in custody, causing hardship to his wife and children. The Court accepted that the business collapse and witness recantation were not foreseen in July 2018, and that the length of pre-trial detention was a matter of grave concern in principle.
On the merits: Weighing all factors, the Court declined to grant release. The seriousness of the alleged offending, which involved a shooting with potential to cause serious injury or death, combined with what the Court characterised as a reasonably strong prosecution case identifying the applicant as the offender, outweighed the factors favouring release. The weakness introduced into the prosecution case by the witness departure was noted but not found to be decisive. The period of delay and family hardship were treated as significant but not determinative.
Orders Made
• The release application is refused.
Key Takeaways
- Section 74 of the Bail Act 2013 (NSW) does not confer any positive power on a court to hear a bail application; it operates solely as a conditional prohibition on further applications, presupposing that a hearing power exists elsewhere in the Act.
- A significant ambiguity exists in the interaction between ss 66 and 74 of the Bail Act: the Court of Criminal Appeal identified that the current statutory framework does not clearly address how a release application should proceed following a successful Supreme Court detention order, and flagged that statutory amendment may be necessary.
- Under the reading adopted by the Court, s 66(1) confers power on the Supreme Court to hear a release application whenever bail has previously been refused by another court, even where the applicant's current detention flows from a subsequent Supreme Court detention order.
- A prosecution witness contradicting an earlier statement during committal proceedings, unforeseen trial delay, and deterioration of a family business during remand were each accepted as capable of constituting changed circumstances for the purposes of a further release application.
- Refusing bail, the Court confirmed that the seriousness of alleged violence offences and the strength of the prosecution case remain weighty considerations that can outweigh significant factors favouring release, including extended pre-trial detention and family hardship.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 19, 66, 67, 74
Cases:
- Trinh v R [2016] NSWCCA 110