Citation: R v Diallo & Ors (No 12); Re an application for bail by witness MM [2024] NSWSC 1087
Court: Supreme Court of New South Wales
Date: 21 August 2024
Judge(s): Hamill J
Background
A young man, referred to as MM, had been subpoenaed to give evidence in an ongoing murder trial involving four accused (with a fifth to be tried separately). MM had previously appeared at a pre-trial hearing known as a Basha inquiry, and had attended court on a second occasion, though his evidence was not reached at that point due to the slow progression of the trial.
MM failed to appear when required, prompting the court to issue a bench warrant for his arrest. He was arrested the following morning and brought directly to court, where he appeared unrepresented.
At the judge's encouragement, MM made an oral application for bail. He offered the explanation that he had been busy, though Hamill J expressed some scepticism about this, suggesting frustration at repeated inconvenience was the more likely cause of his non-attendance.
Legal Issues
- Whether bail should be granted to a witness arrested pursuant to a bench warrant for failing to appear on subpoena
- Whether the provisions of the Bail Act 2013 (NSW) applied in these circumstances
- What conditions, if any, should attach to any grant of bail
Decision
Hamill J identified the relevant statutory framework as sections 311 and 312 of the Criminal Procedure Act 1986 (NSW), which permit bail to be granted to a person arrested under a bench warrant. The Bail Act 2013 (NSW) applied to that determination.
The judge acknowledged that the material before the court was thinner than would ordinarily be placed before a court on a bail application. However, the prosecution did not oppose bail, and this was the practical reason for the limited material presented.
Hamill J was prepared to grant bail, relying primarily on the fact that MM had previously attended court voluntarily. The judge also made clear to MM that a further failure to appear would result in his being held in custody until he gave his evidence.
To protect MM's safety and whereabouts, his address and mobile number were recorded on a single note to be placed in a sealed envelope, accessible only by a judge of the Supreme Court or a higher court, except that Registry staff could view the address for the purpose of completing the bail undertaking.
Orders Made
- Bail granted to MM
- Condition that MM travel directly from the court to his nominated home address upon signing bail papers
- Condition that MM remain at that address overnight with his parent or parents
- Condition that MM travel directly back to court the following day
- MM's address and mobile number to be held in a sealed envelope, not to be opened except by a judge of the Supreme Court or a court of higher jurisdiction (with a limited exception for Registry staff completing the bail undertaking)
Key Takeaways
- Under sections 311 and 312 of the Criminal Procedure Act 1986 (NSW), a court may grant bail to a witness who has been arrested pursuant to a bench warrant following failure to comply with a subpoena, with the Bail Act 2013 (NSW) applying to that determination.
- Prior voluntary attendance at court proceedings was treated as a meaningful indicator in favour of granting bail, even where the witness's stated reason for non-appearance was not fully accepted.
- Hamill J imposed tightly drawn movement conditions, limiting the witness to direct travel between his home and the court, as the practical mechanism for securing attendance.
- The Supreme Court took steps to protect the witness's personal information, ordering that his address and contact details be sealed and accessible only to a judge of the Supreme Court or higher, reflecting the court's discretion to manage sensitive witness information in serious criminal proceedings.
- The prosecution's decision not to oppose bail was noted as the reason for the limited evidentiary material before the court, illustrating that bail determinations for witnesses can proceed on a reduced evidentiary basis where the prosecution consents.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 311, 312
Cases:
No cases were cited in this decision.