Citation: D108 v R [2023] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 20 February 2023
Judges: Beech-Jones CJ at CL (with Price J and Wilson J agreeing)
Background
The applicant, referred to as D108 (the subject of a non-publication order), was convicted in the Local Court in April 2022 of three counts of knowingly giving false or misleading evidence to the NSW Crime Commission and one count of obstructing or hindering the Commission in the exercise of its functions. The offences arose from the applicant's appearances before the Crime Commission in August and September 2017, during which he lied about the location of an encrypted mobile phone and, the court found, wiped that phone before delivering it to police. He received an aggregate sentence of three years and three months imprisonment with a non-parole period of two years commencing 30 September 2021.
The applicant lodged an appeal to the District Court against both conviction and sentence. That appeal was listed for hearing on 23 June 2023, just before his non-parole period was due to expire on 29 September 2023. He had already been refused bail by both the Local Court and the Supreme Court before bringing this application to the Court of Criminal Appeal.
The applicant had a prior criminal history including convictions for assault, stalking, and dealing with the proceeds of crime. The Crime Commission investigation from which his charges arose concerned five gang-related murders committed between 2016 and 2017, with the applicant's fingerprints and DNA found on firearms recovered from a vehicle he previously owned.
Legal Issues
- Whether the applicant had shown cause why his continued detention was justified, as required for a "show cause" offence under the Bail Act 2013 (NSW)
- Whether the applicant's prospects of successfully appealing his convictions and sentence were reasonably arguable
- Whether there was an unacceptable risk that the applicant would commit a serious offence if released on bail
- Whether any bail conditions could adequately address that risk
Decision
The Court treated the offences as "show cause" offences under the Bail Act 2013 (NSW), meaning the applicant bore the burden of demonstrating why his continued detention was not justified. The Court found that cause had been shown, primarily because the appeal was fixed for hearing shortly before the expiry of the non-parole period, meaning the applicant would likely serve the full non-parole period before the appeal was resolved even if bail were refused. However, showing cause did not conclude the analysis.
On the question of appeal prospects, Beech-Jones CJ at CL described the presiding magistrate's reasons as cogent and comprehensive. The applicant's case turned on circumstantial evidence: phone tower records, timing of file logs, and the applicant's own evidence that only he could access the phone. The applicant's written submissions raised the possibilities of an automatic wiping process, cloud storage, and remote access, but the Court regarded these contentions as only remotely arguable on the material before it, and assessed the prospects of overturning the convictions as slight.
The Court placed significant weight on evidence of the applicant's association with organised crime. The circumstances of the underlying offending strongly pointed to such an association. Evidence was also placed before the Court that the applicant had obtained another encrypted device while in custody, and a Detective Senior Constable provided further information bearing on organised crime connections. The applicant challenged the weight of that evidence on the basis that some of it involved matters of which the detective had no direct knowledge, but the Court found that, even discounting for those concerns, the overall picture of involvement with organised crime was overwhelming.
The combination of offending while on bail, access to encrypted devices, and organised crime associations led the Court to conclude there was a very serious and unacceptable risk of the commission of serious offences if bail were granted. The Court also found that conditions restricting mobile phone access could not adequately ameliorate that risk, noting the applicant had already contravened legal obligations relating to mobile phones on two occasions. Bail was refused unanimously.
Orders Made
- Bail refused.
Key Takeaways
- Showing cause under the Bail Act 2013 (NSW) is a necessary but not sufficient step: even where an applicant demonstrates cause, the court must separately assess whether any unacceptable risk of serious offending exists.
- Where a bail applicant has committed offences while already on bail, and that offending is connected to strong evidence of organised crime associations, those factors carry substantial weight in the unacceptable risk assessment.
- The proximity of an appeal hearing to the end of a non-parole period can be relevant to showing cause, since refusal of bail may effectively defeat the practical purpose of the appeal.
- Proposed bail conditions addressing access to mobile phones or communications devices will not necessarily reduce risk to an acceptable level where an applicant has a demonstrated history of contravening equivalent obligations.
- Slight or only remotely arguable prospects of overturning a conviction are insufficient on their own to offset a finding of unacceptable risk of serious offending.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 18(1)(j), 19(1), 67(e)
- Crime Commission Act 2012 (NSW), ss 27(1), 27(2), 27(4), 47G
- Crimes (Appeal and Review) Act 2001 (NSW), s 11
Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- New South Wales Crime Commission v D108 [2019] NSWSC 1035