Citation: R v Choi (No 3) [2020] NSWSC 1877
Court: Supreme Court of New South Wales
Date: 18 December 2020
Judge(s): Adamson J
Background
The accused had been granted bail on strict conditions in November 2020, following an earlier application determined in R v Choi [2020] NSWSC 1586. Bail was granted specifically to allow him to prepare for a criminal trial listed to commence before Adamson J and a jury in February 2021. The conditions included twice-daily reporting requirements and restrictions on leaving his place of residence except for nominated purposes.
Approximately five weeks after bail was granted, the accused applied through his counsel to vary four of the conditions. The Crown opposed all four proposed variations, reiterating its earlier submissions about a substantial risk of flight. That risk was said to arise partly from the nature of the alleged crimes and concerns that a foreign government might supply the accused with a false passport to facilitate undetected departure from Australia.
Legal Issues
- Whether the twice-daily reporting requirement should be reduced to once daily, with one day per week free from reporting
- Whether the accused should be permitted to access YouTube
- Whether the accused should be permitted to travel freely within a 10-kilometre radius of his residence rather than being confined to nominated purposes for leaving the property
Decision
Issue 1: Reporting frequency
The court accepted that the accused had complied with his bail conditions for the five weeks since bail was granted. On that basis, Adamson J was satisfied it was appropriate to reduce reporting from twice daily to once daily, and to grant one reporting-free day each week, designated as Sunday (at [4]).
Issue 2: YouTube access
The Crown submitted that the accused had used YouTube to access North Korean propaganda material, including videos of missile technology, and that permitting unrestricted access would be contrary to the purposes of bail. The court noted that access to YouTube for trial preparation was already available under an existing carve-out in the conditions (at [5]). Adamson J declined the variation, finding it was not possible to formulate an appropriately enforceable condition that would distinguish between YouTube content for legitimate entertainment and propaganda material (at [7]).
Issue 3: Freedom of movement within 10 kilometres
The court was satisfied that the accused should be permitted to leave his residence for additional purposes beyond those originally nominated, including visiting a local shopping centre, attending a Service NSW centre to renew his driver's licence, and attending job search providers to maintain Centrelink entitlements. However, Adamson J declined to endorse employment as a permitted purpose, noting that preparing for a complex trial listed for February 2021 was inconsistent with taking on employment (at [9]).
Orders Made
- Bail condition 4 varied: reporting requirement changed from twice daily to once daily, every day apart from Sunday
- Bail condition 5 varied: additional permitted purposes added, including attending job search providers for Centrelink obligations, attending Chester Hill Shopping Centre when in the vicinity for reporting purposes, and attending a Service NSW centre to renew a driver's licence
- New condition 6A inserted: clarifying that the accused may attend Chester Hill Shopping Centre when travelling to or from Bass Hill Police Station for reporting purposes
- YouTube access variation refused
Key Takeaways
- Demonstrated compliance with strict bail conditions over a five-week period can support a reduction in reporting frequency, even where a substantial flight risk was identified at the original bail hearing (at [4]).
- Where a proposed bail variation involves internet access, the court must be satisfied that any condition permitting access can be formulated in an appropriately enforceable way; practical difficulty in defining a workable carve-out was sufficient reason to refuse the YouTube variation (at [7]).
- The purpose for which bail is granted shapes the scope of permissible activities. Because bail was granted to facilitate trial preparation, the court declined to extend permitted purposes to include employment, treating it as inconsistent with the demands of preparing for a complex trial (at [9]).
- Minor expansions to permitted movements, such as local shopping, banking, and government services, may be granted where they serve practical needs without materially increasing the risk of non-appearance (at [10]).
- The Supreme Court confirmed that existing carve-outs in bail conditions, such as internet access for trial preparation, can already encompass specific activities such as viewing relevant material on YouTube, reducing the need for additional variations (at [5]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
Cases
- R v Choi [2020] NSWSC 1586