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Supreme Court 20 June 2023

R v Weatherall

[2023] NSWSC 710

Sexual offences
CRIME RELEASE APPLICATION EFFECT OF S 15AAA CRIMES ACT 1914 (CTH) DISADVANTAGED ABORIGINAL APPLICANT

Citation: R v Weatherall [2023] NSWSC 710
Court: Supreme Court of New South Wales
Date: 20 June 2023
Judge: Weinstein J

Background

The applicant, a 20-year-old Aboriginal man, faced two federal charges: using a carriage service to engage in sexual activity with a child, and possessing or controlling child abuse material using a carriage service. He had been held on remand since 23 November 2022, approximately six months, after being refused bail following a breach of his original conditional bail.

The alleged offending centred on sexually explicit communications with a complainant, discovered by the complainant's mother in July 2022. Police seized an iPhone in October 2022, and forensic analysis revealed the allegedly offending material. When the applicant later failed to report to police for ten days in November 2022, he was found hiding under a house and arrested. Further child abuse images found on his phone at that time led to a charge that was subsequently to be withdrawn.

A significant body of material before the court documented the applicant's profound personal disadvantage, including a childhood marked by domestic violence, multiple family placements, diagnoses of ADHD, borderline intellectual disability, autism spectrum disorder, and conduct disorder, as well as extensive substance abuse history and low literacy.

Legal Issues

  • Whether section 15AAA of the Crimes Act 1914 (Cth) applied to the charges and, if so, what standard the applicant had to meet to obtain bail.
  • Whether, and to what extent, section 15AAA displaced the provisions of the Bail Act 2013 (NSW), including its unacceptable risk framework.
  • Whether Division 3 of Part 3 of the Bail Act (governing bail conditions) survived the operation of section 15AAA.
  • Whether the applicant had established that circumstances existed to justify the grant of bail.

Decision

Issue 1: The interaction between section 15AAA of the Crimes Act and the Bail Act

Section 15AAA applied to the first charge (using a carriage service to engage in sexual activity with a child) but not to the possession charge. The court held, accepting submissions from both parties, that where section 15AAA applies it leaves no room for Divisions 1, 1A and 2 of Part 3 of the Bail Act, including the unacceptable risk framework in sections 17, 19, 20 and 20A (at [10]-[13]). However, the court found that the matters considered under section 18 of the Bail Act may still be pertinent as "additional matters" under section 15AAA(2), to the extent they are relevant and known to the bail authority (at [14]). Division 3 of Part 3, dealing with bail conditions, was found to remain operative (at [17]).

Issue 2: The applicable standard under section 15AAA

The court held that section 15AAA creates a rebuttable presumption against bail, requiring the applicant to establish on the balance of probabilities that circumstances exist to justify a grant of bail (at [10]). Weinstein J rejected any suggestion that this imposes a "heavy onus," finding that formulation would place an impermissible gloss on the section (at [10]). The presumption of innocence and the general right to liberty, noted in the Preamble to the Bail Act, remained relevant considerations (at [16]).

Issue 3: Whether circumstances existed to grant bail

Working through the factors in section 15AAA(2), the court found the applicant likely to appear if granted bail, given his strong community ties to the Central Coast and the structured bail proposal (at [40]-[41]). The court found the proposed conditions, particularly restrictions on internet-capable devices and supervision by family, substantially mitigated the risk of further like offending (at [43]-[45]). The court also noted there was no suggestion the applicant posed a greater risk to the community than a person of comparable age and criminal history (at [45]). The applicant's special vulnerabilities arising from his Aboriginality, apparent cognitive impairment, and complex mental health profile, which made remand more onerous, together with the prospect of spending at least 18 months on remand before trial, weighed in his favour (at [50]-[51]). The court was satisfied on the balance of probabilities that circumstances existed justifying the grant of bail (at [54]).

Orders Made

  • Bail granted, subject to conditions including: daily reporting to The Entrance Police Station; an overnight curfew; a requirement to attend for a mental health assessment and care plan; alcohol and illicit drug abstinence; no contact with the complainant or witnesses; prohibition on entering Queensland; and strict restrictions on possession or use of internet-capable and encrypted devices, with access to be provided to police on demand.

Key Takeaways

  • Under section 15AAA of the Crimes Act 1914 (Cth), the applicant bears the onus of establishing on the balance of probabilities that circumstances exist to justify bail, but the court confirmed this does not amount to a "heavy onus" and any characterisation to that effect places an impermissible gloss on the section (at [10]).

  • Where section 15AAA applies, it displaces Divisions 1, 1A and 2 of Part 3 of the Bail Act 2013 (NSW), including the unacceptable risk framework, but Division 3 governing bail conditions continues to apply (at [10]-[13], [17]).

  • Section 18 of the Bail Act, which sets out matters to be considered in assessing bail concerns, may still be relevant as "additional matters" within the section 15AAA(2) assessment, to the extent they are relevant and known to the bail authority (at [14]).

  • An applicant's Aboriginality, cognitive impairment, and complex mental health profile are properly taken into account as factors that can make remand more onerous and that, combined with a lengthy anticipated period on remand, are relevant to whether circumstances exist to justify bail (at [50]-[51]).

  • A previous breach of bail does not necessarily defeat a release application: the court examined the circumstances surrounding the breach closely and found them unusual enough to limit the weight they carried against the applicant (at [32]-[35]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)
- Judiciary Act 1903 (Cth)
- Law Enforcement ( Powers and Responsibilities) Act 2002 (NSW)

Cases
- DPP v Zaiter [2016] NSWCCA 247
- Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312
- M v R [2015] NSWSC 138
- R v Gee (2003) 212 CLR 230; [2003] HCA 12