Citation: Crane v Director of Public Prosecutions (NSW) [2021] NSWSC 1341
Court: Supreme Court of NSW
Date: 20 October 2021
Judge(s): Hamill J
Background
The applicant was arrested in April 2019 and charged with the murder of a man who died in June 2017 following a brutal assault. The prosecution alleged the applicant participated in a joint criminal enterprise with six other men, though he was not physically present at the scene of the assault. The case rested on circumstantial evidence, principally telephone communications between the applicant and alleged co-offenders around the time of the incident.
A joint bail application by the applicant and his brother had been refused by Ierace J in February 2020. The applicant now brought a second release application, with a joint trial originally scheduled for July 2021 having been vacated due to COVID-19 lockdowns and rescheduled to May 2022. By that point, the applicant faced the prospect of over three years in custody before trial.
The Director of Public Prosecutions opposed bail on three grounds: that the applicant could not satisfy the threshold under section 74 of the Bail Act permitting a second application, that he had not shown cause why his detention was not justified, and that unacceptable risks existed if he were released.
Legal Issues
- Whether the applicant satisfied the requirements of section 74(3)(b) and (c) of the Bail Act to bring a second release application following a prior refusal
- Whether the applicant had shown cause why his continued detention was not justified, as required by section 16A of the Bail Act, given that murder is a "show cause" offence
- Whether, if cause was shown, any unacceptable risks arose under sections 17 to 19 of the Bail Act that would prevent bail being granted
Decision
Issue 1: Section 74 threshold for a second application
The court was satisfied that the applicant met the requirements of section 74(3)(b) and (c), permitting a second application to be heard (at [6]). Hamill J clarified an important point of statutory interpretation: for information to be "material" for the purpose of section 74(3)(b), it is not necessary to establish that the information might have changed the mind of the original decision-maker (at [11]). The court distinguished the present case from the complex history of successive applications in R v Fallon, finding the circumstances here had changed markedly in the roughly 20 months since the prior refusal (at [10]).
Issue 2: Show cause requirement under section 16A
The court acknowledged that murder cases present a substantial hurdle under the show cause test and that delay alone will not ordinarily satisfy it (at [14]-[15]). However, the court found that, taken together, four factors demonstrated cause: the extensive COVID-19-related delay beyond the applicant's control, the more onerous conditions of incarceration during the pandemic, the applicant's age and significant medical conditions (including cardiac disease, obesity, Crohn's disease and sleep apnoea) making him particularly vulnerable to COVID-19, and the potential weaknesses in the prosecution's circumstantial case against him given his absence from the scene (at [32]).
On the prosecution case, the court assessed it as tenable but not strong, and far from overwhelming on the murder charge (at [29]). The court noted the possibility of a manslaughter verdict, or an acquittal altogether, given the nature of the circumstantial evidence and the applicant's alleged role compared with those physically present at the assault (at [29]-[32]).
Issue 3: Unacceptable risks under sections 17 to 19
The court found no unacceptable risk of the applicant failing to appear, given his extensive community ties, absence of a history of breaching conditional liberty, and the substantial security offered, including a $150,000 surety (at [36]-[37]). Concerns about witness interference were acknowledged but not established on the evidence: the applicant had not attempted to interfere with the investigation during the period between others' arrests in October 2017 and his own arrest in April 2019 (at [39]). The court was satisfied that strict bail conditions, including a curfew, would adequately address remaining concerns (at [40]-[41]).
Orders Made
- Conditional bail granted.
Key Takeaways
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Under section 74(3)(b) of the Bail Act 2013, information can be "material" to support a fresh bail application without it being established that the information would have changed the original decision-maker's mind (at [11]).
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Delay caused by COVID-19 trial vacations, while not automatically sufficient to show cause under section 16A, is a significant factor when combined with onerous custodial conditions, the accused's personal health vulnerability, and particular features of the prosecution case (at [19], [32]).
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Serious pre-existing health conditions that create heightened COVID-19 vulnerability can carry real weight in a show cause analysis, even where the accused has received two vaccine doses, because no vaccine offers absolute protection (at [21]).
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Assessing the strength of the prosecution case remains relevant at both stages of the bail inquiry: cause shown and unacceptable risk are distinct questions that must not be conflated, but many factual matters bear on both (at [15], [32]).
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A criminal history involving older or less serious offending, with no demonstrated pattern of breaching conditional liberty, does not necessarily constitute an unacceptable risk of reoffending or non-appearance, particularly where the circumstances giving rise to the alleged offence were highly specific and unlikely to recur (at [37]-[38]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) ss 16A, 16B, 17, 18, 19, 74
Cases
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232
- Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185
- Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
- JM v R [2015] NSWSC 978
- Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- R v David Peter Cain (No.1) [2001] NSWSC 116; (2001) 121 A Crim R 365
- R v Fallon [2017] NSWSC 1796
- R v Kugor [2015] NSWCCA 14