Citation: R v Voll [2025] NSWSC 846
Court: Supreme Court of New South Wales
Date: 22 July 2025
Judge: Dhanji J
Background
The applicant, a 44-year-old part-owner of entertainment venues in the Nelson Bay area, had been in custody since 3 September 2024. He faced one count of detain for advantage (kidnapping), 12 counts of aggravated sexual intercourse without consent, and 11 alternative counts of sexual intercourse without consent. The alleged offending occurred over approximately 90 minutes from late on 2 September 2024 into the early hours of 3 September 2024, at one of his own venues.
The complainant was an employee of the applicant's business and had been in an ongoing sexual relationship with him. Both had been drinking that night. The applicant was also facing a separate, more recently charged offence of sexual touching alleged to have occurred in a similar context in January 2023, though that matter remained in the Local Court without bail.
A notable feature of the case was that almost the entirety of the alleged offending was captured on CCTV operating within the venue. The complainant had little independent recollection of events, making the CCTV the central plank of the prosecution case.
Legal Issues
- Whether the applicant had shown cause why his detention was not justified under the "show cause" test applicable to serious offences (s 16A, Bail Act 2013 (NSW))
- Whether, if cause was shown, bail should nonetheless be refused on the basis of an unacceptable risk under s 17 of the Act, including risks of failing to appear, reoffending, or interfering with evidence or witnesses
- Whether the prosecution's CCTV footage (approximately two hours in duration) should be tendered and viewed by the court in the context of a bail application
- Whether weaknesses asserted by the applicant in the Crown case were sufficient to affect the show cause and unacceptable risk assessments
Decision
On the CCTV tender
The prosecution sought to tender and play approximately two hours of CCTV footage to counter the applicant's submissions that the Crown case was deficient. Dhanji J raised, on his own motion, whether it was necessary to view the footage at all. His Honour observed that the Crown Case Statement was a detailed, 40-page commentary on the footage, and that the applicant did not contest the accuracy of that commentary. The tender was rejected.
His Honour made broader observations about the viewing of distressing footage in criminal proceedings. While such viewing may be inevitable in some contexts, it carries real potential for harm: not only to judges, but to associates, court officers, tipstaves, and others present in the courtroom. Complainants may also suffer additional trauma when their experiences are viewed by strangers. Courts carry a significant responsibility to assess whether viewing such material is truly necessary, having regard to the nature of the proceedings and the issues the footage is said to address. A bail application is not a "mini trial", and the issues here could be resolved on the Crown Case Statement alone.
On the strength of the Crown case
The applicant advanced several arguments that the Crown case was not strong. He pointed to the pre-existing consensual relationship, the complainant's lack of recollection, an instance where the applicant asked the complainant about her willingness to continue their relationship, and occasions where he allegedly stopped a particular activity when asked. Dhanji J rejected each of these arguments as capable of undermining the prosecution case when the Crown Case Statement was read fairly and as a whole. His Honour described the Crown case as very strong, noting that the CCTV recording left little room for the Crown case to change, while acknowledging the potential for further evidence, including from the applicant, at trial.
On show cause and unacceptable risk
Dhanji J was satisfied that the applicant had shown cause why his detention was not justified, principally because of the delay between the alleged offending and the charge, the recent birth of the applicant's child, the absence of any prior criminal record, and the availability of conditions permitting residence in Sydney away from the Nelson Bay area where all alleged offending occurred. On the unacceptable risk assessment, his Honour accepted that the separate sexual touching charge heightened concern about the risk of reoffending, but found that risk was mitigated by the proposed bail conditions removing the applicant from the relevant environment. The risk of failing to appear and the risk of interfering with witnesses or evidence were also assessed as not unacceptable, the latter particularly given that the Crown case rested on objective CCTV footage and the complainant had no independent memory of events.
Orders Made
- Bail granted subject to conditions (specific conditions not reproduced in the provided text)
Key Takeaways
- A bail application is not a "mini trial": Dhanji J confirmed that even where CCTV footage is the central Crown evidence, the court need not view that footage if the issues raised by the applicant can be fairly resolved on the Crown Case Statement alone.
- Courts bear a significant responsibility before agreeing to view recordings of serious offences. The potential for harm extends beyond the presiding judge to all persons engaged in the courtroom, and to complainants whose experiences are thereby viewed by strangers. Necessity must be assessed with care.
- A very strong Crown case does not automatically defeat a bail application. Cause was found to exist, and the unacceptable risk test was satisfied in the applicant's favour, by reference to delay, personal circumstances, absence of prior convictions, and the mitigating effect of available conditions.
- Where bail conditions remove an applicant from the geographic and social environment in which all alleged offending occurred, that relocation can weigh materially against a finding of unacceptable risk of reoffending, even where a second related charge exists.
- Under the Bail Act 2013 (NSW), the show cause and unacceptable risk tests operate sequentially: satisfaction of the show cause threshold does not conclude the inquiry, and the court must separately assess each identified risk before granting bail.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 19, 49
- Crimes Act 1900 (NSW), ss 61I, 61J
Cases
- Barr (a Pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47