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District Court 27 April 2021

R v Walton

[2021] NSWDC 182

Sexual offences
CRIMINAL LAW BAIL APPLICATION SHOW CAUSE OFFENCE SIGNIFICANT DELAY STRENGTH OF CROWN CASE OATH AGAINST OATH

Citation: R v Walton [2021] NSWDC 182
Court: District Court of New South Wales
Date: 27 April 2021
Judge: Grant DCJ

Background

The applicant, a man charged with 15 counts of sexual offences against two child complainants, applied to the District Court for bail after being refused bail by the Local Court in May 2020. The charges related to alleged conduct against two sisters who were his stepdaughters, and included offences carrying maximum penalties of life imprisonment. The applicant had been in custody since 7 May 2020.

His trial was listed to commence on 6 September 2021, meaning he faced a total of approximately 16 months on remand if bail were refused. The applicant's mother filed an affidavit in support of the application, and the defence proposed 15 bail conditions. The Crown opposed bail, arguing the applicant posed unacceptable risks of failing to appear and committing further serious offences.

  • Whether s 74 of the Bail Act 2013, which restricts repeat bail applications to the same court, applied to a bail application made in the District Court following a Local Court refusal
  • Whether the applicant had shown cause why his detention was not justified, as required for a "show cause" offence under the Bail Act
  • Whether the applicant posed an unacceptable risk within the meaning of s 17 to 20A of the Bail Act

Decision

Jurisdiction and s 74: Grant DCJ held that s 74 of the Bail Act, which prohibits multiple release applications to the "same Court," had no application here. The Local Court refused bail; the District Court had not. The District Court application was therefore to be treated as a fresh hearing, not a repeat application requiring a change of circumstances to be demonstrated. The Court noted that even if it were wrong on this point, a change in trial date since the Local Court refusal could itself constitute a relevant change of circumstances.

Show Cause: The applicant faced a show cause burden because the offences carried maximum penalties of life imprisonment. Grant DCJ assessed six factors in combination. The Crown's own counsel conceded the Crown case was not strong, noting that it may come down to the complainants' word against the accused's, without independent corroborating evidence and with questions about the cross-admissibility of the two complainants' accounts. The Court also weighed the 16-month period the applicant would spend in custody before trial, characterising that prospect as inconsistent with modern concepts of civil rights for a person presumed innocent. Additional factors included the applicant's illiteracy and ADHD, which created practical difficulties in preparing his defence while incarcerated, as well as his elderly mother's health needs and reliance on him as a carer.

Unacceptable Risk: The Crown pointed to the applicant's history of domestic violence order breaches and suspended sentence breaches, arguing he would not appear given the sentence he faced if convicted. Grant DCJ accepted that these were proper bail concerns but was satisfied that the 15 proposed conditions, taken together, adequately addressed any unacceptable risk of failing to appear or committing a further serious offence.

Orders Made

Bail was granted subject to the following conditions:

  • To be of good behaviour
  • To appear at the District Court at Griffith on 6 September 2021 at 9am, and at any other time required by law
  • To reside at a specified Griffith address with Linda Hardwick and nowhere else
  • Not to leave the premises between 8pm and 8am unless in the direct company of Linda Hardwick
  • To report daily to Griffith Police Station between 8am and 8pm
  • Not to consume alcohol or enter any licensed premises
  • Not to take any illegal or unprescribed drugs
  • Not to contact, directly or indirectly, any prosecution witness or potential prosecution witness (except through lawyers)
  • To travel from the correctional centre only in the company of Linda Hardwick, who must be present at the centre before release
  • Not to apply for any passport or travel document
  • Not to go within 500 metres of any departure point from Australia
  • One or more acceptable persons to enter into a $10,000 forfeiture agreement if the applicant fails to appear
  • One or more acceptable persons to provide a character acknowledgment under the Bail Act 2013 and Bail Regulations 2014

Key Takeaways

  • The District Court confirmed that s 74 of the Bail Act 2013, which restricts repeat bail applications to the "same Court," does not prevent a fresh application in a higher court where bail was previously refused by a lower court.
  • A combination of factors, each individually insufficient, can together satisfy the show cause requirement. The District Court assessed strength of the Crown case, length of pre-trial custody, ability to prepare a defence, and personal circumstances as a holistic package rather than as isolated elements.
  • Where the Crown case may reduce to "oath against oath" with no independent corroborating evidence, the court treating that as a factor favouring bail does not contradict the principle that guilt is a matter for the jury.
  • Under the Bail Act, the prospect of a presumed-innocent person spending 16 months on remand before trial is, absent exceptional circumstances, inconsistent with modern concepts of civil rights, applying R v Cain (No 1) [2001] NSWSC 116.
  • Illiteracy and cognitive difficulties such as ADHD can constitute relevant considerations in a show cause analysis, particularly where they impede an accused person's capacity to participate meaningfully in preparing their defence while in custody.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 18, 19, 20A, 61, 74
- Crimes Act 1900 (NSW), s 66A(1)

Cases
- R v Farrell [2016] NSWSC 1278
- R v Daniel [2014] NSWSC 1968
- R v Cain (No 1) [2001] NSWSC 116