Citation: [2024] NSWSC 302
Court: Supreme Court of New South Wales
Date: 18 March 2024
Judge(s): Lonergan J
Background
The accused, a 69-year-old man, faces a charge of murder alleged to have occurred in February 2008. He was arrested in 2021 following a DNA match and, after a contested bail hearing before Hamill J, was released into the community on strict bail conditions later that year. He has remained on bail since, with a small number of conditions varied over time to accommodate employment and curfew adjustments.
A jury trial before Harrison CJ at CL in October and November 2023 produced a hung jury. A retrial is expected within approximately six months of this application. Following the trial, the accused lost his previous employment and received offers of new work. His solicitors applied to vary his bail conditions to reflect the new employment and to reduce the frequency of his reporting obligation.
Legal Issues
- Whether bail conditions should be varied to substitute a new employer under the employment condition
- Whether the reporting condition should be reduced from five days per week (Monday, Tuesday, Thursday, Friday, and Saturday) to two days per week (Monday and Thursday)
- Whether the hours within which the accused must report should be adjusted to accommodate work obligations
Decision
Issue 1: Substitution of employer
Lonergan J granted the variation to the employment condition to substitute a new employer, described in the judgment as the accused's son's company (at [12]). The officer-in-charge had verified that the business existed and that work driving trucks and occasional labouring would be offered (at [10]). A second proposed employer was not accepted, as enquiries raised a question mark over whether that business was identifiable as a legitimate employer: there was no response to the mobile number listed on the letter, and no email or website address appeared on its letterhead (at [11]).
Issue 2: Reduction in reporting frequency
The Court declined to reduce the number of reporting days from five to two per week (at [20]). Lonergan J acknowledged that the accused had complied with all conditions throughout nearly three years on bail, had no recorded breaches, and had attended his trial each day (at [15]). However, the Court weighed those matters against the seriousness of the murder charge, the strength of the Crown case as described in the Crown case statement, the fact that the trial did not result in an acquittal, the accused's overseas travel history and family connections abroad, and the proximity of the retrial (at [17], [19]). The Court found that reporting five days out of seven was not unduly onerous (at [20]).
Issue 3: Reporting hours
After judgment was delivered, and with the Crown's consent, Lonergan J made a practical adjustment to the hours within which the accused must report. The window was extended to between 5:00 am and 8:00 pm to accommodate the accused's work commitments (at [22]). The number of reporting days remained unchanged.
Orders Made
- Bail variation granted in part
- Employment condition varied to substitute a new employer (the accused's son's company) within the relevant area (at [21])
- Reporting frequency condition (Monday, Tuesday, Thursday, Friday, and Saturday) maintained
- Reporting hours extended by consent to between 5:00 am and 8:00 pm on those same days (at [22])
Key Takeaways
- Lonergan J confirmed that conditions carefully fashioned after a detailed contested bail hearing carry significant weight in subsequent variation applications, particularly where the underlying charge remains serious and a retrial is imminent (at [17], [19]).
- A clean compliance record over nearly three years on bail, while relevant, did not by itself justify reducing the frequency of reporting obligations where the Crown case was considered relatively strong and overseas connections existed (at [15], [19]).
- Where one of two proposed employers could not be verified through reasonable enquiries, the court declined to extend the employment condition to cover that employer (at [11]).
- Practical adjustments to reporting hours, rather than reporting frequency, can be an appropriate middle ground where work obligations create timing difficulties, particularly where the Crown consents (at [22]).
- Under the Bail Act 2013 (NSW), the seriousness of the charge and the strength of the Crown case remain central considerations when a court assesses whether to relax bail conditions, even after a prolonged period of compliance.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
Cases
- Not stated