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Local Court 16 March 2023

R v Luo

[2023] NSWLC 5

Public order & justice offences
CRIME BAIL RELEASE APPLICATION CONSIDERATION OF S 74 BAIL ACT MEANING OF ‘MATERIAL INFORMATION’ REQUIREMENT OF S 74 NOT MET

Citation: R v Luo [2023] NSWLC 5
Court: Local Court of NSW
Date: 16 March 2023
Judge(s): Shields LCM

Background

The defendant faced serious Commonwealth charges being prosecuted by the Commonwealth Director of Public Prosecutions, with the proceedings running under the EAGP protocol. A first release application was heard and refused on 8 February 2023, with the court identifying two unacceptable risks: failure to appear and interference with witnesses or evidence.

A further release application was filed on 20 February 2023. The defendant supported it with three affidavits addressing two matters: his chronic health condition (Hepatitis B) and a substantially increased surety offer, raised from $100,000 to $500,000. The Director opposed the application.

Before the further application could be heard on its merits, the court was required to determine whether the defendant had satisfied the threshold requirements of s 74 of the Bail Act 2013 (NSW), which limits when the same court can entertain a second or subsequent release application.

Legal Issues

  • Whether the Local Court was bound by the Supreme Court's interpretation of "material information" in s 74(3)(b) in R v Fallon, or whether a later disapproving decision in Crane v DPP displaced that authority
  • What "material information" means for the purposes of s 74(3)(b) of the Bail Act
  • Whether evidence of the defendant's chronic health condition constituted "material information" within s 74(3)(b)
  • Whether an increase in the proffered surety from $100,000 to $500,000 constituted "material information" within s 74(3)(b)

Decision

Issue 1: Binding authority and the meaning of "material information"

The court held that the interpretation of "material information" in s 74(3)(b) set out in R v Fallon is binding on the Local Court (at [15]). Fallon establishes that the test requires the court to understand the reasons for the original refusal and to assess whether the new information might have made a difference to that outcome (at [18]). The court noted that a later Supreme Court decision in Crane v DPP expressly disapproved Fallon but provided no reasoning or alternative construction to support that disapproval. Consistently with the Court of Criminal Appeal's guidance in Moukhallaletti and Zaiter, a bare disapproval without reasoning does not bind the Local Court, whereas Fallon, which contains a genuine determination of a legal question, does (at [15]).

The court also rejected the defendant's alternative submission that "material" should be read as meaning no more than "not insignificant." That construction, the court found, would be inherently imprecise, practically unworkable, and inconsistent with the evident purpose of s 74, which is to limit repeat applications to those supported by proper grounds (at [17]).

Issue 2: The defendant's health condition

The court assessed the Hepatitis B evidence at its highest: the condition has been adequately controlled by medication since at least 2018, and the defendant requires periodic blood tests and ultrasound screening. The court found those needs fall within the scope of services provided by Justice Health in custody and do not support a conclusion that adequate care is unavailable in detention (at [31]). Critically, there was no evidence, and no reasonable basis to infer, that the health condition had any bearing on the assessed risks of failing to appear or interfering with witnesses. The submission that ongoing treatment would deter flight was unsupported by any evidence (at [32]). The health evidence was therefore not "material information" for s 74(3)(b) purposes (at [33]).

Issue 3: Increased surety

A surety was offered at the first application, yet the risk of failure to appear was still found to be unacceptable. The court noted that the Summary of Reasons indicated the prospect of a lengthy custodial sentence on conviction was the persuasive factor in that assessment, not the size of the surety (at [35]). The charges carry maximum penalties of 25 and 10 years imprisonment, and the Statement of Facts described sophisticated money laundering activity that, taken at its highest, would be objectively serious. The court was not satisfied that a fivefold increase in the surety might have changed the outcome (at [37]).

Orders Made

  • Further Release Application refused pursuant to s 74(1) of the Bail Act.

Key Takeaways

  • Under s 74(3)(b) of the Bail Act 2013 (NSW), "material information" requires more than merely new or not-insignificant information: the new material must be capable of having changed the outcome of the previous application, assessed by reference to the specific unacceptable risks that led to refusal (at [18], [30]).

  • Fallon's interpretation of "material information" is binding on the Local Court as a genuine legal determination. A later Supreme Court decision that simply disapproves Fallon without offering reasoning or an alternative construction carries no binding weight in the Local Court (at [15]).

  • Where no transcript of the earlier bail hearing is available and the parties dispute what was decided, a judicial officer's own summary of reasons stands as the conclusive record of the findings made (at [24]).

  • Medical evidence that a defendant's condition is adequately managed in the community will not satisfy the s 74(3)(b) threshold where the treatment required falls within custodial healthcare services and there is no evidence linking the condition to the identified unacceptable risks (at [31]-[33]).

  • An increased surety offer is unlikely to constitute "material information" where the original surety was already before the first court and the persuasive reason for refusing bail was the prospect of a lengthy sentence, rather than the adequacy of the financial security (at [35]-[37]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW) , ss 18, 38, 74
- Interpretation Act 1987 (NSW) , s 34

Cases
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
- Crane v Director of Public Prosecution (Supreme Court (NSW), Hamill J, 20 October 2021, unrep)
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- R v Fallon (a pseudonym) [2017] NSWSC 1796
- R v Mel [2018] NSWSC 1463
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- R v Pasikala [2018] NSWSC 1458
- Vakuta v Kelly (1988) 13 NSWLR 502 (CA)