Citation: [2020] NSWSC 1951
Court: Supreme Court of New South Wales
Date: 15 December 2020
Judge(s): Rothman J
Background
The applicant faced three charges under the Crimes Act 1900 (NSW) arising from alleged conduct towards her five-year-old son. The charges were: failure to provide for a child causing danger of serious injury (s 43A(2), maximum five years); wounding with intent to cause grievous bodily harm (s 33(1)(a), maximum 25 years); and malicious infliction of grievous bodily harm (s 33(1)(b), maximum 25 years).
Medical evidence described extensive and severe injuries to the child, including traumatic brain injuries, multiple fractures, burns and ligature marks, with likely permanent neurological consequences. A urinalysis of the child detected several substances including amphetamine, methamphetamine, ketamine and propofol.
The applicant did not contend that she personally inflicted the injuries. Instead, she argued that the prosecution's case against her rested on the doctrine of joint criminal enterprise, and that the evidence before the Court did not adequately establish her participation.
Legal Issues
- Whether the prosecution had established a sufficient basis for the charges to make the applicant's continued detention justified pending trial
- Whether there was an unacceptable risk that the applicant would fail to appear if granted bail
- Whether there was an unacceptable risk of witness interference if the applicant were released on bail
Decision
Issue 1: Strength of the prosecution case
Rothman J found the circumstantial evidence sufficient to support a conclusion that an appropriately directed jury could find the applicant guilty of the two more serious charges on the basis of joint criminal enterprise (at [18]). That evidence included: the extended period over which the injuries occurred; photographs of injuries taken between April and August 2020; a video found on the applicant's phone showing her speaking to the injured child in a threatening manner; and the presence of implements bearing the victim's DNA in the premises (at [12]-[18]).
The Court also noted an internal inconsistency in the applicant's own submissions. The applicant asserted both that she was unaware of the assaults and that she had attempted to stop them. Rothman J observed these positions could not both be true (at [17]).
Issue 2: Risk of failing to appear
The Court identified the applicant's overseas connections, combined with the seriousness of the charges each carrying a maximum of 25 years, as giving rise to a serious concern that the applicant would fail to appear if released (at [19]). The anticipated period in custody before trial was not considered sufficiently lengthy to weigh in the applicant's favour on this point (at [19]).
Issue 3: Risk of witness interference
Rothman J held that releasing the applicant on conditional bail would create a serious risk of interference with witnesses, including the victim, noting that even telephone contact would pose that risk (at [20]).
Orders Made
- Bail refused
Key Takeaways
- Rothman J found that circumstantial evidence, including the duration of the alleged abuse, photographic records, a video on the applicant's phone, and forensic analysis of implements, was sufficient to support a joint criminal enterprise case going to a jury (at [18]).
- Internally inconsistent bail submissions, here asserting both ignorance of alleged assaults and an attempt to stop them, may undermine an applicant's position before the court (at [17]).
- Overseas connections combined with the gravity of charges carrying maximum penalties of 25 years' imprisonment can constitute a serious, unacceptable risk of non-appearance sufficient to refuse bail (at [19]).
- Refusing bail, the Supreme Court accepted that even conditional liberty with telephone access can present an unacceptable risk of witness interference where the alleged victim and potential witnesses remain accessible to the applicant (at [20]).
- The anticipated length of pre-trial custody is one relevant consideration in bail applications, but Rothman J found it did not weigh sufficiently in the applicant's favour in the circumstances of this case (at [19]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s s 33(1)(a), 33(1)(b), 43A( 2)
Cases
- Not stated