Citation: McConnachie v Director of Public Prosecutions (NSW) [2019] NSWSC 318
Court: Supreme Court of New South Wales
Date: 26 March 2019
Judge: Hamill J
Background
The applicant was arrested in February 2017 and charged with multiple indictable offences involving four complainants, including his former wife. The charges involved serious sexual and physical offending and were complicated by questions about consent, tendency evidence, and the admissibility of forensic material. By the time of the bail application, he had been in custody for over two years without a trial date being fixed.
The matter had only recently left the Local Court, with committal proceedings concluding shortly after the bail hearing. Several charges were withdrawn at committal and two new charges were laid. The complexity of the case, including anticipated applications for separate trials and a voir dire on tendency evidence, meant resolution at trial remained some considerable time away.
The DPP opposed bail on the basis that the applicant was required to show cause under the Bail Act 2013 (NSW) for some charges (because those offences were allegedly committed while he was on bail for earlier matters), and that he posed an unacceptable risk across all four risk categories under the Act.
Legal Issues
- Whether the applicant had discharged the "show cause" obligation under ss 16A and 16B of the Bail Act 2013, given that some charges were allegedly committed while he was on conditional liberty
- Whether the applicant posed an unacceptable risk of failing to appear, committing a serious offence, endangering the safety of victims or the community, or interfering with witnesses or evidence (ss 17 and 19 of the Bail Act)
- What weight should be given to the strength (or weakness) of the prosecution case, including the potential impact of contested tendency evidence under s 97 of the Evidence Act 1995
- How the extraordinary length of pre-trial custody interacted with both the show cause requirement and the overall bail assessment
Decision
Hamill J found the application "finely balanced" but ultimately refused bail. On the show cause question, his Honour accepted that the extensive delay, exceeding two years with more to come, was a weighty consideration in the applicant's favour. The court noted that prolonged pre-trial custody of a person not yet convicted is, absent exceptional circumstances, inconsistent with modern concepts of civil rights, citing Sperling J's words from 2001. However, the show cause threshold was not met, primarily because of the applicant's conduct after arrest.
Of particular concern was evidence that, shortly after being taken into custody, the applicant attempted to arrange for his mother and a former girlfriend to approach complainants with a view to having them retract their statements. The applicant's mother was herself charged with attempting to influence a witness. This conduct, combined with a history of breaching court orders (including prior bail conditions and apprehended violence orders), weighed heavily against release.
On the strength of the prosecution case, the court undertook a careful analysis. While the prosecution characterised the case as "bordering on overwhelming," Hamill J identified genuine complexities, including consent-related issues, the significance of what appeared to be a "safe word" arrangement between the applicant and at least one complainant, questions about delayed complaints, and the possibility that tendency evidence could, at trial, support the defence as much as the prosecution. The court treated the case as strong, but not overwhelmingly so.
Taking all matters together, including the unacceptable risk of witness interference and the history of breaching conditional liberty, Hamill J concluded that the applicant had not shown cause and that the bail concerns under ss 17 and 19 were not sufficiently mitigated by the proposed conditions. Bail was refused.
Orders Made
- Bail refused.
- The court recommended that the matter receive priority listing in the District Court as soon as possible, given the delay, though noted this may have been addressed through the Chief Judge's chambers.
- The parties were granted liberty to apply to the Supreme Court Registrar to list a further urgent release application if an extensive delay in trial listing eventuated, with provision for the matter to be relisted before Hamill J directly.
Key Takeaways
- Prolonged pre-trial remand, here exceeding two years, carries significant weight in a bail assessment and can contribute to satisfying the show cause requirement, but it does not automatically do so where serious countervailing risk factors are present.
- Evidence that an applicant attempted to interfere with witnesses or complainants after arrest is a powerful obstacle to bail, particularly when combined with a history of breaching court orders and prior conditional liberty.
- Under the Bail Act 2013, a bail authority is not bound by the rules of evidence and may consider any credible or trustworthy information when assessing bail concerns (s 31).
- Assessing the "strength of the prosecution case" at the bail stage is a limited exercise: the court acknowledged genuine complexity in the tendency evidence and consent issues without purporting to resolve how those issues would be determined at trial.
- Where tendency evidence is contested, a bail court may note the possibility that such evidence could ultimately assist the defence as well as the prosecution, a consideration that can affect the assessment of case strength without being determinative of the bail outcome.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 31, 74(3)
- Evidence Act 1995 (NSW), ss 97, 137
- Crimes Act 1900 (NSW), s 556A
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- DPP v Hing [2017] NSWCCA 325
- El-Hilli and Melville v R [2015] NSWCCA 146
- JM v R [2015] NSWSC 978
- Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
- Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4
- R v Brown [1992] 2 All ER 552
- R v Cain (No 1) (2001) 121 A Crim R 365
- R v Marcus [2016] NSWCCA 237
- R v Young [2006] NSWSC 1499
- Regina v Linard Shamouil [2006] NSWCCA 112
- Raabe v R (1985) 14 A Crim R 381
- R v Lee [2006] 3 NZLR 42
- Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988)