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Supreme Court 3 April 2025

Debono v Director of Public Prosecutions (NSW)

[2025] NSWSC 327

Fraud & dishonestyTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIMINAL LAW BAIL REPEATED APPLICATIONS CHANGE OF CIRCUMSTANCES SHOW CAUSE REQUIREMENT ASSESSMENT OF BAIL CONCERNS

Citation: Debono v Director of Public Prosecutions (NSW) [2025] NSWSC 327
Court: Supreme Court of New South Wales
Date: 3 April 2025
Judge: Hamill J

Background

The applicant faced two groups of serious criminal charges. The first arose from events on 5 December 2023 and included possession of an unregistered loaded pistol in a public place, receiving stolen fishing equipment valued at approximately $80,000, dangerous driving during a police pursuit reaching around 240 km/h, and dealing in the proceeds of crime involving approximately $110,000 in cash. The second group of charges related to alleged conduct in June 2024, including a bail application at which a false medical certificate was tendered.

The applicant had previously been refused bail by Ierace J in this Court on 14 October 2024. The present application was therefore a second application to the Supreme Court, triggering the statutory prohibition on repeated bail applications under the Bail Act 2013 (NSW).

The applicant sought release relying primarily on new evidence regarding his medical condition, specifically symptoms consistent with lymphoma that had gone uninvestigated during his period of incarceration. Hamill J ultimately granted bail, subject to an extensive set of conditions.

  • Whether the applicant could satisfy the threshold in s 74 of the Bail Act 2013 (NSW) permitting a second release application, by demonstrating a change in circumstances or the availability of material new information
  • Whether the applicant could show cause why his detention was not justified, as required under s 19 of the Act (the "show cause" requirement applicable to certain serious offences)
  • How the court should assess the bail concerns under ss 17 and 18 of the Act, including the strength of the prosecution case, the applicant's medical condition, the risk of flight, and risks to community safety
  • What conditions, if any, were appropriate to address identified bail concerns

Decision

Hamill J was satisfied that the s 74 threshold was met. The principal change in circumstances was fresh expert medical evidence from an oncologist, Honorary Professor Richard Fox, who gave both a written report and oral evidence. Dr Fox identified symptoms requiring investigation for possible lymphoma, which had been delayed by the applicant's incarceration. The DPP fairly conceded this overcame the s 74 prohibition, and the court accepted that concession.

On the prosecution case, Hamill J assessed the evidence relating to the 5 December 2023 offences as strong overall, but noted that some charges, particularly the firearm charges, raised genuinely triable issues whose resolution may depend on the clarity of CCTV footage. The court took a measured view of the strength of each component of the case rather than treating the prosecution case as uniformly compelling.

The medical evidence weighed significantly in the applicant's favour. The court accepted that ongoing incarceration was delaying necessary medical investigation, and that this had real consequences for the applicant's health. Hamill J also noted that procedural delays caused by the late filing of material by the applicant's solicitors were attributable to the lawyers, not to the applicant personally, and it would have been unfair to visit those consequences entirely on him, particularly given the statutory imperative in s 71 that bail applications be dealt with as soon as reasonably practicable.

Bail was ultimately granted, but on what Hamill J described as very strict conditions, designed to address the identified concerns about flight risk and community safety, including home detention, 24-hour electronic monitoring, a $100,000 surety, restrictions on communications devices, prohibition on encrypted messaging applications, and mandatory drug screening.

Orders Made

  • Release application granted and bail allowed on the following key conditions:
  • Applicant to be of good behaviour and appear at Tweed Heads Local Court on 16 May 2025
  • Home detention: applicant must reside at a specified address and not leave except for medical emergencies, court attendance, or pre-arranged appointments accompanied by a nominated person
  • Report to police each Monday and Friday between 8am and 11am
  • 24-hour electronic monitoring device to be fitted before release, with an inclusion zone at the home address; applicant to bear the costs of compliance
  • Two acceptable persons to deposit $50,000 each (total $100,000) in cash surety, with forfeiture agreements, as a pre-release condition
  • Applicant not to approach or communicate with any prosecution witness (other than serving police officers)
  • Applicant to comply with a treatment and rehabilitation plan as recommended by a named psychologist
  • Weekly drug screening to be arranged within seven days of release, with results provided weekly to police
  • Passport surrendered; applicant not to apply for any new passport or travel document; not to go within 500 metres of any international departure point
  • Applicant limited to one mobile telephone service and SIM card; to provide password, PIN, service, and IMEI details to police within 24 hours
  • Applicant prohibited from using or possessing any encrypted device or encrypted communication applications (including WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Zoom, Discord, WeChat and Telegram)
  • Travel away from the correctional centre only when accompanied by a nominated person

Key Takeaways

  • Under s 74 of the Bail Act 2013 (NSW), a second bail application to the same court is prohibited unless the applicant demonstrates either new material information or a change in circumstances since the previous application; fresh expert medical evidence about a serious and uninvestigated health condition was held to satisfy that threshold.

  • A concession by the DPP that the s 74 threshold is satisfied will ordinarily be accepted by the court where the concession is fairly made and supported by the evidence.

  • Delays caused by a legal representative's procedural failings are not automatically attributed to the applicant for the purpose of adjourning or deprioritising a bail application, particularly where s 71 of the Act requires that applications be dealt with as soon as reasonably practicable.

  • Granting bail does not require an absence of bail concerns; the court's task is to assess whether conditions can adequately address identified risks, including flight risk and community safety, and to impose conditions proportionate to those risks.

  • Serious medical conditions that remain uninvestigated due to incarceration form a legitimate and potentially significant consideration in the overall bail assessment, capable of weighing against continued detention even where the prosecution case is assessed as strong.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 18(1)(k), 18(2)(a), 19, 71, 74
- Crimes Act 1900 (NSW), ss 51B, 93G, 93I, 189A, 193C
- Firearms Act 1996 (NSW), ss 7, 39, 51H, 65

Cases cited: No cases were cited in the judgment.