Citation: [2025] NSWSC 560
Court: Supreme Court of New South Wales
Date: 13 May 2025
Judge(s): Rothman J
Background
The applicant, a 33-year-old man, was charged with serious offences including break and enter a dwelling with grievous bodily harm, take and detain in company with intent to obtain advantage, occasioning actual bodily harm, and causing grievous bodily harm with intent. The charges arose from an alleged planned attack on a complainant at a Pyrmont apartment in May 2024, during which the complainant was left with life-threatening skull fractures and brain haemorrhages, his hands bound with cable ties, and his apartment ransacked.
The applicant was one of four co-accused. He presented himself to police when requested and was arrested in July 2024. Two co-accused had already been granted bail. The applicant sought release on conditions including home detention supervised by his wife and electronic monitoring.
The hearing also raised the Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025, which was imminent at the time of the decision. Rothman J addressed that legislation directly before completing the bail assessment.
Legal Issues
- Whether the applicant could show cause why his continued detention was unjustified under section 16B of the Bail Act 2013 (NSW)
- Whether, if cause was shown, the applicant posed an unacceptable risk under sections 17 to 19 of the Bail Act 2013 (NSW), and whether proposed conditions sufficiently ameliorated that risk
- What effect the incoming Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025 would have on bail conditions, and whether its transitional provisions raised constitutional concerns
Decision
Issue 1: Show cause
The offences engaged the show cause requirement under section 16B of the Bail Act 2013 (NSW) (at [3]). Rothman J found that cause had been shown on a combination of factors. The Crown case rested significantly on CCTV identification evidence, which the court did not regard as strong on its face, and the only forensic evidence was a single fingerprint on the exterior of a vehicle, with no physical forensic evidence placing the applicant inside the apartment (at [7], [44]). The applicant's personal circumstances were also significant: three very young children each with serious health needs and a wife suffering deteriorating mental health required the applicant's presence (at [8]-[9]). The anticipated delay before finalisation of the matter also weighed in favour of showing cause (at [10]).
Issue 2: Unacceptable risk
Turning to the four bail concerns under section 17 of the Act, the court assessed flight risk as relatively low. The applicant had handed himself in to police when requested, a factor the Crown properly conceded carried significant weight, and he had strong community ties through his young family (at [30]-[31]). The court acknowledged a residual risk of flight given the prospect of a full-time custodial sentence if convicted, but noted such risk exists for almost every bail applicant (at [31]). Regarding the risk to the community and the victim, the court accepted that the proposed conditions, including home detention and electronic monitoring, sufficiently ameliorated the unacceptability of the risk, and that the applicant did not pose an unacceptable risk on those conditions (at [48]-[49]).
Issue 3: The private electronic monitoring legislation
Rothman J offered extended observations on the incoming legislation, which would prohibit courts from imposing private electronic monitoring as a bail condition. His Honour noted that electronic monitoring is not a guarantee of compliance or safety, whether conducted privately or by Corrective Services (at [15]-[16]). The practical consequence of the ban, the court observed, is that courts face a binary choice: refuse bail where monitoring would have been essential to manage risk, or grant bail without a protective condition, at greater risk to the community and at significantly lower cost than incarceration (at [17]-[19]).
The court raised more pointed concerns about the transitional provisions. Under those provisions, a person currently subject to a private electronic monitoring condition who has complied fully with it would, at the end of a three-month period, be taken to have failed to comply with the condition. Rothman J characterised this as imposing a detriment on a person who has not breached any court order or committed any offence, and described it as the legislature invalidating an existing court order (at [24]-[25]). His Honour noted serious questions about whether such a provision is consistent with Chapter III of the Constitution and the separation of judicial power, while acknowledging that these matters were for others to bring to the legislature's attention (at [26]). The court applied the law as it currently stood and proceeded to assess bail on existing conditions (at [27]).
Orders Made
- Bail granted subject to the conditions prescribed.
Key Takeaways
- Showing cause under section 16B of the Bail Act 2013 (NSW) does not require exceptional circumstances; it may be established by a combination of factors including weaknesses in the Crown case, significant personal circumstances, and likely delay to finalisation (at [5], [9]-[10]).
- Where Crown identification evidence rested substantially on CCTV footage that was not clearly strong, and forensic evidence was limited to a single fingerprint on the exterior of a vehicle, the Supreme Court treated the Crown case as not strong for the purposes of the show cause inquiry (at [7]).
- A voluntary surrender to police, when requested, carried significant weight in reducing the assessed flight risk, even where the applicant faced serious charges and a likely custodial sentence upon conviction (at [30]).
- Proposed bail conditions need not eliminate risk entirely; the court's task under section 19 of the Bail Act 2013 (NSW) is to determine whether conditions reduce risk to a level that is no longer unacceptable (at [48]-[49]).
- Rothman J raised substantial constitutional concerns about the transitional provisions of the Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025, observing that a provision deeming a fully compliant person to have breached a bail condition may strike at the separation of judicial power under Chapter III of the Constitution, though these observations were not determinative in the present application (at [25]-[26]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) , ss 16A, 16B, 17, 18, 19, 74
- Crimes Act 1900 (NSW), ss 33, 86
- Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025
Cases
- Not stated