Citation: [2021] NSWSC 784
Court: Supreme Court of New South Wales
Date: 1 June 2021
Judge(s): Rothman J
Background
The applicant appeared before the Supreme Court seeking bail while on remand facing two separate sets of charges. The first, stemming from February 2021, involved property damage allegedly committed against his sister. Bail had initially been granted on that matter but was subsequently revoked when a second set of charges arose.
The second and more serious set of charges related to events in April 2021. These included wounding with intent and breach of an Apprehended Violence Order (AVO). The AVO had been taken out in favour of the applicant's sister. The wounding charge arose from a separate incident in which the applicant allegedly stabbed a friend multiple times with a screwdriver during a single episode.
At the time the second offences were allegedly committed, the applicant was already on bail for the first matter. This made the bail application a "show cause" application, meaning the applicant bore the onus of demonstrating why his continued detention was not justified.
Legal Issues
- Whether the applicant could "show cause" why his detention was not justified, given the alleged offences were committed while on bail
- Whether the Crown case was sufficiently strong to weigh against the grant of bail
- Whether the proposed bail conditions, amounting effectively to house arrest with family supervision, were sufficient to address the risk of reoffending
- Whether the risk of drug-related violence posed an unacceptable risk to the community, including the proposed supervisors themselves
Decision
Rothman J found that the applicant had not shown cause why his continued detention was not justified. The show cause threshold arose primarily because the alleged wounding and AVO breach occurred while the applicant was on bail for the earlier property damage offence.
On the strength of the Crown case, the court rejected the applicant's submission that the absence of direct evidence (beyond the complainant's account) made the case weak. Rothman J noted corroborating evidence and circumstantial material that together made the Crown case a strong one. Identification was not in issue given the complainant and applicant were known to each other.
The proposed conditions were strict, essentially confining the applicant to house arrest with departures permitted only for legal conferences, medical appointments, emergencies, or court attendances, and only in the company of his mother or a sister. Rothman J accepted that the applicant was not an unacceptable flight risk, given his limited criminal history, no prior failures to appear, and strong family ties in the community.
However, the court expressed serious concern about the risk of irrational, drug-induced violence. The evidence suggested the applicant's offending was connected to cannabis use, and the court found it unacceptably risky to place his mother and sister in the supervisory role proposed, given they could themselves become victims of similar conduct if the applicant resumed drug use. The court left open the possibility of a fresh application if the applicant secured a residential drug rehabilitation placement.
Orders Made
- Bail refused.
- Leave granted to the applicant to reapply if a residential drug rehabilitation program is obtained.
Key Takeaways
- A show cause obligation arises where alleged offences were committed while the applicant was already on bail, placing the onus squarely on the applicant to justify release.
- Corroborating and circumstantial evidence can render a Crown case "strong" even where no direct evidence beyond the complainant's account exists.
- Refusing bail, the Supreme Court found that the absence of a flight risk and the presence of strict proposed conditions were insufficient where the real concern was drug-related violence rather than non-appearance.
- The identity of proposed supervisors matters: where those persons could plausibly become victims of the very conduct giving rise to the charges, their involvement does not adequately address the risk of reoffending.
- A court may decline bail on current conditions while expressly leaving open a further application tied to a changed circumstance, here the securing of a residential rehabilitation program for drug addiction.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW) (implied by the show cause framework applied, though not explicitly cited in the text)
Cases:
- No cases were cited in the provided judgment text.