Citation: Edwards v R (No 2) [2022] NSWSC 1344
Court: Supreme Court of New South Wales
Date: 4 October 2022
Judge(s): Beech-Jones CJ at CL
Background
On 6 September 2022, a utility vehicle allegedly driven at high speed left the road at Buxton, striking two trees in succession. The applicant, an 18-year-old male, was driving. Five passengers aged between 14 and 16 were in the vehicle; all five died at the scene. The applicant was the sole survivor.
The following day, the applicant was charged with five counts of driving in a manner dangerous causing death under s 52A(1)(c) of the Crimes Act 1900 (NSW). He was refused bail and remanded in custody. This application was brought seeking his release on bail.
The applicant had no prior criminal history. His provisional licence had been suspended once before following two speeding violations, but had been returned to him in August 2022, just weeks before the incident.
Legal Issues
- Whether any of the four bail concerns under s 17 of the Bail Act 2013 (NSW) were established, specifically the risk of failing to appear, committing a serious offence, endangering the community, or interfering with witnesses
- Whether any bail concern identified gave rise to an "unacceptable risk" such that bail must be refused
- Whether proposed bail conditions were sufficient to address any bail concerns that did arise
- Whether the risk of the applicant driving while his licence was suspended constituted an unacceptable risk of committing a serious offence
Decision
The court applied the framework under the Bail Act 2013 (NSW), which requires bail to be refused only where there is an "unacceptable risk" that one or more bail concerns will materialise if the accused is released. Bail concerns are not in themselves a basis for refusal; the question is whether the risk they represent rises to an unacceptable level, having regard to any conditions that could address them.
The court accepted that the seriousness of the charges, the circumstances of the alleged offending, and the number of deaths were relevant factors. However, the applicant's complete absence of a criminal record was described as a matter of "particular significance." His character evidence was strong, with affidavits from family members, friends, a former teacher, and his employer all attesting to his good character and the likelihood of his compliance with bail conditions.
The Crown's primary concern was the risk of the applicant driving while his licence was suspended. The court found this did not amount to an unacceptable risk. The applicant had not driven while previously suspended, and the court noted the strong incentive for compliance: any breach would result in an immediate return to custody. The court was also satisfied on the evidence that the applicant's mental health was deteriorating significantly in custody and that the prospects of recovery were materially better if he were released.
Beech-Jones CJ at CL concluded that, on a proper application of the Bail Act, this was not a finely balanced case. The court described it as an application that "had to be granted," given the bail concerns were adequately addressed by the proposed conditions.
Orders Made
• Grant of bail on conditions as follows: [His Honour then specified the bail conditions.]
The judgment records that bail was granted on conditions including:
- Residence with the applicant's parents
- Daily reporting to police
- A form of house arrest, with permission to leave only in the company of his mother or for medical appointments and other restricted circumstances
- Abstention from drugs and alcohol
- No occupation of the driver's seat of any vehicle, including a motorbike
- No contact with any prosecution witness
- No application for a passport; no approach within 500 metres of any international departure point
- A $100,000 surety to be forfeited by the applicant's parents in the event of failure to appear
Key Takeaways
- Under the Bail Act 2013 (NSW), bail is refused only where an identified bail concern gives rise to an "unacceptable risk"; the existence of a concern does not, by itself, require refusal.
- The Supreme Court confirmed that the absence of a prior criminal record carries particular significance in the bail assessment, even where the charges are very serious.
- Deteriorating mental health in custody is a relevant consideration in evaluating what level of risk is unacceptable; the court found the probability of continued decline in custody, compared with better prospects of recovery if released, informed the overall risk assessment.
- A concern that the applicant might drive while suspended did not constitute an unacceptable risk where the applicant had not previously driven while suspended and where the consequences of breach provided a strong deterrent against non-compliance.
- Proposed bail conditions, including a prohibition on occupying any driver's seat, a substantial financial surety, and near-total house arrest, were accepted as sufficiently addressing the bail concerns raised by a charge of this gravity.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), including s 17 (bail concerns) and the unacceptable risk test
- Crimes Act 1900 (NSW), s 52A(1)(c) (driving in a manner dangerous causing death; maximum penalty 10 years' imprisonment)
Cases cited: No cases were cited in the judgment.