Citation: Galey-Newbury v R [2026] NSWCCA 140
Court: Court of Criminal Appeal
Date: 2 September 2026
Judge(s): Ward P, Hamill J, Fagan J
Background
The applicant had been convicted of four counts of aggravated sexual intercourse without consent under s 61JA(1) of the Crimes Act 1900 (NSW) and sentenced to a term of imprisonment with a non-parole period of four and a half years. On the same day as the release application, the Court of Criminal Appeal allowed his appeal against conviction and ordered a re-trial.
A co-accused had successfully appealed his own conviction earlier in 2026 and was already on conditional bail awaiting a joint re-trial listed for August 2027. It was expected that the two men would again be tried together.
The applicant had spent just under three years in custody at the time of the application. Before his conviction, he had been on conditional bail for approximately one year and eight months, during which he attended his trial. The Director of Public Prosecutions did not oppose the grant of bail on the conditions proposed, subject to minor adjustments.
Legal Issues
- Whether the applicant had jurisdiction to make a release application following the appeal being allowed and a re-trial ordered
- Whether the applicant, facing a "show cause" offence under s 16B(1)(a) of the Bail Act 2013 (NSW), had shown cause why his detention was not justified
- Whether releasing the applicant would create any "unacceptable risks" under ss 17 and 19 of the Bail Act, after considering the factors in s 18
- Whether proposed bail conditions were sufficient to address any identified bail concerns
Decision
Issue 1: Jurisdiction
The Court confirmed it had power to entertain the release application under s 67(1)(a) of the Bail Act 2013 (NSW) (at [4]).
Issue 2: Show Cause
Because one of the charges carries a maximum penalty of life imprisonment, s 16B(1)(a) of the Bail Act required the applicant to show cause why his continued detention was not justified. The Court was satisfied that cause had been shown (at [7]-[8]). Three factors were determinative: the applicant had spent nearly three years in custody; by the time of the re-trial he would have served approximately 85 to 90 per cent of the non-parole period; and he had almost entirely complied with conditional bail for over a year and a half before his trial (at [8]).
Issue 3: Unacceptable Risks
The Court accepted that bail concerns existed under s 17(2) of the Bail Act, including the risks of failing to appear, committing further offences, and interfering with witnesses or evidence (at [12]). The concern about witness interference arose from evidence that the applicant had spoken with his co-accused during the remand period in breach of their bail undertakings. The Court characterised this as a minor concern, noting that the complainant's evidence would be placed before the jury by way of recordings from the first trial and that both accused were effectively committed to the accounts they had already given (at [12]).
Issue 4: Conditions
The proposed bail conditions were described as "quite stringent." The Court was satisfied they were sufficient to mitigate the identified bail concerns, such that no unacceptable risks remained for the purposes of s 19 of the Bail Act (at [13]-[14]). Bail was granted on those conditions, with the minor adjustments discussed in argument.
Orders Made
- Release application granted
- The applicant granted bail on conditions as proposed by Hamill J (with adjustments discussed in argument)
Key Takeaways
- A finding that an applicant is subject to the "show cause" requirement under s 16B(1)(a) of the Bail Act 2013 does not preclude bail where the time already spent in custody represents a substantial portion of the original non-parole period and the applicant demonstrated near-complete compliance during a lengthy prior period on bail (at [8]).
- The show cause threshold and the unacceptable risk assessment under ss 17 to 19 are treated as distinct and sequential inquiries; satisfying one does not automatically resolve the other (at [9]).
- Where a co-accused's evidence established that the applicant had communicated with him in breach of bail conditions, the Court of Criminal Appeal treated the resulting witness-interference concern as minor in circumstances where evidence from the first trial was to be tendered by recording and both accused had already given sworn accounts (at [12]).
- Under s 17(2) of the Bail Act, bail concerns about failing to appear, committing further offences, and interfering with witnesses can each be identified as present while the court nonetheless concludes that appropriately stringent conditions reduce those concerns to an acceptable level (at [12]-[14]).
- Prior compliance with conditional bail, absence of relevant criminal history, and strong community ties can each contribute to demonstrating that identified bail concerns do not give rise to unacceptable risks for the purposes of s 19 (at [10], [13]-[14]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16B, 16B(1)(a), 17, 17(2)(a), 17(2)(b ), 17(2)(d), 18, 19, 30 , 67(1)(a) Crimes Act 1900 (NSW), s 61JA(1)
Cases
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- Paulley v R [2026] NSWCCA 75