Citation: Kitson v Director of Public Prosecutions (NSW) [2019] NSWSC 1856
Court: Supreme Court of New South Wales
Date: 19 December 2019
Judge(s): Hamill J
Background
The applicant, a man with a lengthy criminal history and a diagnosis of schizophrenia, faced charges of aggravated break and enter with commission of a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW), along with related charges of trespass, common assault, destroying property and larceny. The alleged victim was his sister. The offences were said to have occurred on 18 October 2019, when he entered her home through a window in the early hours of the morning, and an argument escalated into violence including a physical altercation and an assault with a vacuum cleaner cord.
At the time of the alleged offences, the applicant was on parole following earlier sentences for possession of an unlicensed pistol, entering enclosed lands and resisting police. His parole was due to expire just eleven days after the alleged offending. He had been in custody since his arrest on 18 October 2019 and brought a release application before the Supreme Court on 17 December 2019.
Because he was on parole at the time of the alleged offence, the application engaged the "show cause" threshold under the Bail Act 2013 (NSW). The applicant was represented by the Aboriginal Legal Service.
Legal Issues
- Whether the applicant could show cause why his detention was not justified under s 16A of the Bail Act 2013, given that the alleged offence was a "show cause offence" under s 16B(1)(h) (commission of a serious indictable offence while on parole)
- Whether, if the show cause threshold was met, the bail concerns identified by the prosecution under s 17 could be reduced to an acceptable level through bail conditions, having regard to the considerations in s 18 and the unacceptable risk test in s 19
Decision
Hamill J accepted that the show cause threshold presented a substantial obstacle. The prosecution case appeared strong, a custodial sentence upon conviction was likely, and the applicant's criminal history spanning approximately 48 pages included multiple break and enter offences, offences of violence, and a pattern of non-compliance with court orders. Several prior offences had been committed against the same victim. The applicant's sister had expressed justified fears for her safety, and the court was obliged to weigh those fears seriously.
Two factors carried particular weight in favour of granting bail. First, the applicant's mental health: Dr Richard Furst's psychiatric report diagnosed schizophrenia with severe psychosis, auditory hallucinations, paranoid ideation, depressed mood and suicidal ideation. While in custody, the applicant had been held in segregation for 23 hours per day due to threats from other inmates and had received only one psychiatric appointment during remand. Hamill J found those conditions likely to be highly detrimental to his mental health, though acknowledged that factor alone would not have overcome the show cause requirement.
The second and decisive factor was the stringency of the proposed bail conditions, which the applicant's solicitor had worked diligently to construct. The proposal required the applicant to reside in Blayney, near Bathurst, more than 400 kilometres from Albury where his sister lived and where the alleged offences occurred. Accommodation had been arranged with a friend, and the applicant's grandmother lived nearby and offered to assist with supervision. Appointments had been secured with the Orange Community Mental Health Team (6 January 2020) and the Orange Aboriginal Medical Service. Additional conditions included curfew, prohibitions on drug and alcohol use, and stringent reporting obligations.
Taking the applicant's current custodial conditions, his mental illness, the significant geographical separation from the victim, and the overall stringency of the proposed conditions together, Hamill J was satisfied that the show cause requirement was met and that the identified bail concerns did not constitute unacceptable risks for the purposes of s 19. Conditional bail was granted.
Orders Made
- Conditional bail granted (specific conditions recorded on the court file)
Key Takeaways
- Under s 16A of the Bail Act 2013, bail must be refused for a "show cause offence" unless the applicant demonstrates why detention is not justified; commission of a serious indictable offence while on parole triggers this threshold under s 16B(1)(h).
- Severe and deteriorating mental health conditions resulting from restrictive custodial circumstances (23-hour cell confinement, minimal therapeutic intervention) can form part of a show cause argument, though the Supreme Court found such conditions insufficient on their own to overcome the threshold.
- Where the principal concern is protection of a specific victim, a bail proposal requiring the applicant to reside a substantial distance from that victim, combined with geographical restrictions and enforced mental health treatment, can sufficiently mitigate unacceptable risks under s 19.
- A significant criminal history and repeated non-compliance with court orders weigh heavily against bail in show cause applications, but they do not preclude a grant of bail where other factors in combination satisfy the statutory requirements.
- Anticipated delay of over a year before final disposition in the District Court was a relevant contextual consideration in assessing the overall proportionality of continued remand.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19
- Crimes Act 1900 (NSW), s 112(2)
Cases cited: None reported in the judgment.