Citation: Symons v Director of Public Prosecutions (NSW); McDonald v Director of Public Prosecutions (NSW) [2024] NSWCCA 253
Court: Court of Criminal Appeal
Date: 1 November 2024
Judge(s): Kirk JA, Dhanji J, Yehia J
Background
Two applicants, who had been convicted of murder following a joint trial in 2022, sought release on bail after the Court of Criminal Appeal quashed their convictions and ordered a new trial. The victim died in June 2017 from injuries sustained in an assault in April of that year, which was captured on closed-circuit television footage. The applicants were among four men alleged to have carried out the assault.
The appeal succeeded because the trial judge had failed to leave the partial defence of manslaughter by excessive self-defence to the jury, a ground established in an associated co-accused's appeal (Robertson v R [2024] NSWCCA 99). The Crown conceded the point. Each applicant had already served a substantial period in custody: one approximately six years and two months, the other approximately seven years, against non-parole periods of eleven and a half and twelve years respectively.
The retrial was anticipated to be heard in June 2025, around eight years after the events in question. The bail applications were heard on the same day the convictions were quashed, and were dealt with together for convenience, though each was determined independently on its own evidence.
Legal Issues
- Whether each applicant could show cause why their continued detention was not justified, under s 16A(1) of the Bail Act 2013 (NSW), given murder is a "show cause" offence
- Whether, if show cause was established, there remained an unacceptable risk under s 17 of the Act, including risk of failing to appear, risk of committing a serious offence, and risk of interference with witnesses or evidence
Decision
Dhanji J (with whom Kirk JA and Yehia J agreed) accepted the Crown case against both applicants as very strong, given the CCTV footage depicting a brutal assault and the jury's rejection of a complete self-defence claim at trial. However, the court found that three factors in combination were sufficient to satisfy the show cause requirement despite that strength.
First, each applicant had served more than half of the non-parole period imposed for murder. Second, the retrial would occur approximately eight years after the events, which reduced the immediacy of the concerns ordinarily associated with detention for serious offences. Third, the viable case of manslaughter by excessive self-defence, accepted as sufficient to warrant a jury direction, raised a real possibility that the applicants could ultimately be convicted of no more than manslaughter. In that scenario, any non-parole period for manslaughter might not exceed time already served.
Turning to unacceptable risk, the court assessed the risk of failure to appear, commission of further offences, and interference with witnesses. In each case, the court found those risks were present but sufficiently mitigated by the time already served, the applicants' conduct history (including the period each had spent on bail without incident, particularly Mr McDonald), their prospects of rehabilitation as assessed by the sentencing judge, their community support, and the availability of employment. Proposed bail conditions, including conditions submitted by the Crown, were also treated as meaningfully reducing risk to an acceptable level.
The court applied the well-established principle that the show cause and unacceptable risk tests are distinct hurdles, and that satisfying the former does not automatically satisfy the latter.
Orders Made
- Bail granted to Mr McDonald, subject to conditions in the form provided by the Crown on the application
- Bail granted to Mr Symons, subject to conditions as set out in the Crown's document, with condition 11 amended to read "within 24 hours of taking or resuming possession of any such service," and Mr David Campbell noted as an acceptable person for the purposes of condition 16
Key Takeaways
- Under the Bail Act 2013 (NSW), the show cause test and the unacceptable risk test are separate and sequential: satisfying one does not automatically satisfy the other, as made explicit by s 19(3).
- A very strong Crown case does not, by itself, preclude a finding that cause has been shown. Where an applicant has served more than half of a non-parole period, faces a retrial many years after the original events, and has a viable partial defence available on retrial, those factors can collectively tip the balance.
- The possibility of a lesser conviction on retrial (here, manslaughter rather than murder) is a relevant consideration when assessing whether continued detention remains justified, particularly where time already served could equal or exceed the non-parole period for that lesser offence.
- In assessing unacceptable risk, the Court of Criminal Appeal treated prior conduct on bail without incident, sentencing judge findings on rehabilitation prospects, community ties, and available employment as material mitigating factors.
- The strength of a Crown case built on CCTV footage depicting significant violence remained relevant throughout both tests, even where the conviction had been quashed on a procedural ground concerning jury directions.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 9(3), 16A(1), 17, 18, 19, 49, 67(1)(a)
Cases:
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Robertson v R [2024] NSWCCA 99
- Crane v R [2024] NSWCCA 112