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Supreme Court 8 March 2024

TXR v R

[2024] NSWSC 197

HomicideDrugsFirearms & weapons
CRIME BAIL SHOW CAUSE TIME ELAPSED UNTIL TRIAL PROPOSED BAIL CONDITIONS BAIL REFUSED.

Citation: TXR v R [2024] NSWSC 197
Court: Supreme Court of New South Wales
Date: 8 March 2024
Judge: Garling J

Background

The applicant, a 23-year-old man identified by the pseudonym TXR, applied for release on bail in respect of charges laid on 18 December 2023. Non-publication orders were in place, limiting the publication of his name and personal details. The proceedings were heard in the Supreme Court following the application filed on 21 December 2023.

The charges fell into three broad groups. The first was a single count of murder, alleged to have occurred on 27 June 2023 and involving the use of a firearm. The second and third groups involved large commercial drug supply offences (one kilogram of cocaine and 500 grams of methylamphetamine respectively) across two separate periods in mid-to-late 2023, along with possession of a Dedicated Encrypted Criminal Communication Device (DECCD), failure to comply with a Digital Evidence Access Order, dealing in the proceeds of crime, and participation in a criminal group.

The Crown opposed bail on four grounds: risk of failure to appear, risk of committing further serious offences, risk of endangering community safety, and risk of interference with witnesses or evidence.

  • Whether the applicant had shown cause, as required under the Bail Act 2013, why his detention was not justified for the show cause offences (murder and large commercial drug supply)
  • Whether the strength of the prosecution case on the murder and drug charges weighed in favour of, or against, a finding of show cause
  • Whether the anticipated period in custody before trial was sufficient to discharge the show cause obligation
  • Whether the applicant's age, conditions of custody, and safety risks while in custody demonstrated that detention was not justified
  • Whether the proposed bail conditions would reduce any identified risks to an acceptable level

Decision

Show cause obligation. All of the charges the applicant faced were "show cause" offences under the Bail Act 2013, meaning the applicant bore the burden of demonstrating why his detention was not justified. Garling J assessed each of the applicant's four arguments in turn.

Strength of the prosecution case. On the murder charge, the prosecution's case rested on evidence of a carefully planned, coordinated killing involving seven co-accused, significant money transfers, and numerous recorded interactions between the applicant and the two principal co-accused. On the drug charges, the case depended substantially on attributing an encrypted communications identity to the applicant. While the applicant contended the drug case was weak on that basis, Garling J found the Crown's case overall to be a reasonable one, and not one that favoured granting bail.

Time in custody and custodial conditions. The Court estimated the murder trial would not proceed until the third quarter of 2025, roughly 21 months to two years after arrest. The drug charges were expected to reach trial in the District Court in early 2025, around 12 months after arrest. The applicant raised concerns about his youth and personal safety in custody. Garling J accepted that some risk to the applicant's safety existed in custody but found those risks were similar to, or possibly less than, those he would face in the community. The anticipated period in custody, in light of the seriousness of the offences and the strength of the Crown case, did not satisfy the show cause requirement.

Proposed bail conditions and overall conclusion. The Court was not persuaded that the proposed bail conditions would reduce the identified risks to an acceptable level. Garling J refused bail on both the drug charges and the murder charge. The judgment noted that if the applicant is acquitted of the drug charges, or those proceedings resolve without continued custody, the applicant may bring a further release application on the murder charge, provided he can demonstrate a change in circumstances sufficient to meet the statutory threshold.

Orders Made

  • Application for release filed 21 December 2023 is dismissed.

Key Takeaways

  • Refusing bail on multiple show cause offences, the Supreme Court applied the Bail Act 2013 framework requiring the applicant to affirmatively demonstrate why detention was not justified, rather than requiring the Crown to justify continued remand.
  • A prosecution case relying on the attribution of an encrypted communications identity to an accused does not automatically render that case weak; the court assessed the overall reasonableness of the Crown's case across all available evidence.
  • The anticipated wait of up to two years before a murder trial, though acknowledged as significant, was not in itself sufficient to discharge the show cause burden when weighed against the seriousness of the offence and the overall strength of the prosecution case.
  • Personal safety risks faced by an accused while in custody may be considered as part of the show cause assessment, but a finding that such risks are comparable to or less than those in the community will not advance the bail application.
  • Where bail is refused, a future release application on a remaining charge remains available under the Bail Act 2013 if the applicant can later demonstrate a sufficient change in circumstances.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 16B(1)(a)
- Crimes Act 1900 (NSW), ss 93T(1), 192P(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 76AO(1)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases cited: None cited in the judgment.