Bail

Garling J

1. On 23 March 2015, the applicant, JM, was arrested and charged with the stabbing murder of the deceased, AB. He was taken into custody at that time.

2. On 15 April 2015, JM made an application pursuant to s 8 of the Bail Act 2013 (“the Act”) to be released on bail.

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32. In considering a bail application, some fundamental common law principles need to be kept in mind.

33. First, the Act itself, in its preamble, recognises that the common law presumption of innocence and the general right to be at liberty, has not been ignored by the Parliament, in the Act, but is in fact something which the Parliament has taken into account. A court needs to keep in mind, and have regard to these principles when considering a grant of bail, because as a fundament of the law, they have not been excluded by the terms of the Act. On the contrary, the Parliament has embraced them.

34. Secondly, the essential and important principle which is not to be ignored, is that an accused person, who is presumed to be innocent, is not to be punished before a conviction: Clumpoint v DPP [2005] QCA 43 at [47]. Put differently, bail is not denied to a person as a punishment: Chau v DPP [1995] 37 NSWLR 639 at 655 per Kirby P; Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at pp27-28.

35. The approach of correctional authorities to a person remanded in custody awaiting trial because bail has been refused is different from their approach to a sentenced prisoner. Rehabilitation programs are not ordinarily available to remand prisoners. Custodial classifications are different. Usually, persons on remand are held in maximum security facilities regardless of the offences with which they are charged or their likely classification after conviction.

36. In light of this second essential principle, the usual custodial arrangements, and in the absence of any provision in the Act, it is difficult to conceive that any bail decision can properly be regarded, and certainly could not properly be perceived, as intruding upon the sentencing discretion of a court: cf DPP (NSW) v Campbell [2015] NSWCCA 173 at [24]. Nothing in the Act warrants a court refusing bail because of a concern that a decision to grant bail may later fetter the decision of sentencing court.

37. In particular, the decision made by a court with respect to bail, involving, as it does, no element of punishment, is a decision of an entirely different kind to the imposition of a sentence in accordance with the Crimes (Sentencing Procedure) Act, where the Court in imposing a sentence is required by s 3A of that Act, to have regard to one of the purposes of the imposition of a sentence as ensuring that the offender is adequately punished for the offence. Similarly, notions of general and specific deterrence, which are encapsulated by s 3A, are entirely irrelevant to a bail decision. Denunciation of an offender’s conduct has no place in a bail decision. A sentencing court would fall into error if it had regard to the mere fact that a superior court had granted (or refused) bail prior to the sentencing.

38. Thirdly, it is a matter of general application that the wording of the show cause test makes it clear that there is an onus, on the balance of probabilities, falling upon an applicant to persuade the Court that their detention is not justified.

39. However, in discharging this onus, the applicant is not required to show special or exceptional circumstances. The provisions of s 22(2) of the Act, make it plain that the show cause test is separate, and distinct from, the demonstration of special and exceptional circumstances. An applicant does not need to show special or exceptional circumstances to show cause why their detention is not justified.

40. Similarly, the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists. After all, the terms of the legislation do not permit a grant of bail unless cause can be shown, and equally the legislation does not restrict the matters which can be considered when a court determines the show cause test. The authorities of long-standing in this Court on previous, and now repealed or superseded, versions of the Act, called for a court, when considering whether bail ought be granted when there was a presumption against bail, to concentrate attention on the strength of the Crown case and to give little, if any, weight to factors which are ordinarily present or common to bail applications where no presumption existed. See: DPP (Cth) v Germakian [2006] NSWCA 275 at [9]- [11].

41. The introduction of the two-step process in the present Act, together with the legislative acknowledgement that the show cause test does not require special or exceptional circumstances to be shown, except in a limited range of cases identified in s 22 of the Act, and the clear acceptance by the Court of Appeal in Tikomaimaleya at [24], that factors relevant to the unacceptable risk test (which are common to all bail applications), may also be relevant to the show cause test, in combination, suggests that these authorities are distinguishable from the approach which is now to be taken. The end result is that, even where a show cause requirement exists, an assessment that the Crown case is strong is not necessarily determinative of whether continued detention is justified.

42. Fourthly, when a court is called upon to assess the strength of the Crown case for the purpose of a bail application, it can only do so to a very limited extent. That is because the Court is not generally provided with the full brief of evidence, often it is not yet available; the Court does not hear prosecution witnesses orally and is not in any position to make an assessment of the credibility of a witness except by a comparison of the content of the written statement with other facts and material made available. The assessment of the strength of the Crown case is also made at a particular point in time, usually quite distant from the final hearing, by which time the material available to a prosecution may be very different. Witnesses whose statements are taken by police do not always give evidence at a trial; if they do, they do not always give evidence which accords with their statements; a different picture may emerge during cross-examination; a jury, or the presiding judge or magistrate, may take an adverse view of the demeanour or credibility of a witness for reasons which do not appear in the words of a written statement. A court making a bail decision needs to be, and ordinarily is, conscious of these matters, which are necessarily unknown when assessing the strength of the Crown case.

43. Fifthly, the fact of the arrest and charging of an individual with an offence is not the equivalent of a determination of guilt, and the fact that the person remains in custody pending trial is the occasion for the consideration of, and if appropriate, the exercise of, the discretion granted to a court under the Act, rather than a reason of itself to detain a person in custody pending trial.

Unacceptable Risk Test

44. The unacceptable risk test refers to the existence of the concept of one or more bail concerns, namely, failure to appear at any future proceedings, committing a serious offence; endangering the safety of victims, individuals or the community; or interfering with witnesses or evidence: s 17 of the Act.

45. For the purpose of the existence of a bail concern about the commission of a serious offence, the phrase “serious offence” is not defined in the Act. Subject only to the provisions of s 18(2) of the Act, any offence can constitute a serious offence. It is a matter for the court hearing the bail application to determine whether an offence is serious in the sense described as a matter relevant to a bail concern.

46. As earlier noted, s 18 limits the matters to be taken into account in assessing bail concerns under the Act. Each of the matters is given equal priority. No one matter assumes dominant significance. It is important to note that in s 18(1)(i), the Court is entitled to have regard to the likelihood of a custodial sentence being imposed if an accused person is convicted of the offence, however, that factor is only to be taken into account in considering the existence of a bail concern, being one of the four matters to which reference has been made in [44]. Unsurprisingly, an applicant facing a lengthy jail sentence may be, depending on their personal circumstances, at greater risk of failing to appear at future proceedings.

47. As well, it is important to note that s 18(1)(p) of the Act enjoins a court to take into account bail conditions that could reasonably be imposed to address any bail concerns before assessing whether the bail concerns present an unacceptable risk.

48. Section 18 does not permit a court to have regard to the views of investigating police, or any other police officer, about whether bail should, or should not, be granted. The only views to which a court may have regard are those of a victim, or the family member of a victim and then, only to a limited extent: s 18(1)(o) of the Act. A police officer may, and commonly will, put material or relevant facts relating to the matters required by s 18 of the Act, to be considered by a court. But this is, or should be, limited to nothing more than a factual account. Statements of police opinion, or views as to the appropriateness of a grant, or refusal, of bail fall outside the terms of s 18 and are thus unable to be considered.

49. This is not to say that submissions to a court by a representative of the prosecution, who may be a police officer, cannot be made to, or received by, a Court. Such submissions are not the expression of the personal opinion or views of the prosecutor. They are intended to assist the Court in the determination of an application.

McCallum J

1. John Joseph Farrell stands charged with a large number of sexual offences alleged to have been committed both in the period leading up to and following his ordainment as a Catholic priest. A large number of the charges were brought in 2012 and 2013. A further series of charges were brought more recently in June 2015. Mr Farrell has been on bail throughout the period of his facing the criminal justice system and has, so far as the available information reveals, demonstrated both a willingness and a capacity to comply with relatively onerous bail conditions over a lengthy period.

2. Following his most recent grant of bail on 30 June 2015, the prosecutor foreshadowed (and shortly afterwards brought) a detention application. This judgment determines that application.

3. It is not necessary to summarise in detail the material before the Court relating to the charges against the respondent. The material falls broadly into three categories. First, in respect of some of the charges laid in 2012 and 2013, the respondent has indicated pleas of guilty. Some 43 charges to which the respondent proposes to plead guilty have been committed for sentence to the District Court with a further 11 being transferred to that Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). In that context, it should be acknowledged that more than 50 charges have been withdrawn relating to the same series. The facts in relation to the matters to be dealt with for sentence in the District Court are set out in an agreed statement of facts.

4. The Crown appearing on the detention application was unable to confirm whether the respondent has yet been arraigned on indictment in the District Court and adhered to his pleas but there is nothing before me to suggest that he will not do so if he has not done so already.

5. The second category of charges is those which have been committed to the District Court for trial. The facts in respect of those matters (which remain allegations and are not admitted) are set out in a Crown case statement included within the Crown bundle in support of the detention application. Those matters are listed for trial commencing on 18 January 2016. The sentence matters have been stood over to the same date.

6. Finally, in respect of the charges laid more recently, those matters remain in the Local Court and there is before me a summary of facts in respect of those matters.

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16. It is important to note that the determination of the present application must not be approached on the basis that it would be sensible or expedient for the respondent to begin serving an apparently inevitable custodial sentence now rather than at a later point when he is duly sentenced by the District Court. That is not the test. The task for the Court on the present application is to undertake the evaluative judgment to which I have referred, having regard to any relevant considerations under s 18. However, as explained by the Court in Tikomaimaleya, the fact that the present respondent has admitted his guilt of a large number of offences plainly informs the consideration of those factors.

17. In particular, subs 18(1)(b) and(c) require the Court to have regard to the nature and seriousness of the offences and the strength of the prosecution case. The need to evaluate the strength of the prosecution case in the present case is less significant where there is such a large number of admitted offences. The Court can safely approach the application on the basis that the respondent is an admitted sex offender and that the offences which he admits are of considerable seriousness involving a range of victims, including his own nieces, as well as a number of altar boys under his supervision from the time when he was still acting as a Catholic priest.

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22. Turning to other considerations I am required to take into account under s 18, there is one matter in particular which I think is informed by the fact that the respondent has pleaded guilty to a number of serious matters. Section 18(1)(h) of the Act requires the Court to have regard to the length of time the accused person is likely to spend in custody if bail is refused. I emphasise, as I have already stated, that I appreciate this application is not to be approached on the basis that it would be sensible or expedient for the respondent to begin serving any sentence of imprisonment likely to be imposed upon him sooner rather than later. However, I regard the factor identified in s 18(1)(h) to be one directed to reminding the Court of the importance of ensuring that a person who enjoys the presumption of innocence is not at risk of spending more time in custody than he or she might serve by way of sentence if ultimately found guilty. That is of extremely poignant significance in a less strong Crown case; it is of less significance in the present case.

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31. The decision of the Court of Appeal to which I have referred makes plain that, where there is a show cause requirement, it is the respondent’s onus to persuade the Court that any bail conditions that could reasonably be imposed to address any bail concerns (in accordance with s 20A) adequately address the concern that exists in the particular case. I have not been persuaded of that matter by the material put on behalf of the respondent on the balance of probabilities. It follows in accordance with the Bail Act that I must grant the prosecutor’s application and revoke the respondent’s bail.

Adamson J

1. Madam Crown, as the prosecutor in these proceedings, has made a detention application pursuant to s 50(1) of the Bail Act 2013 (NSW) for revocation of bail.

2. Mr Stanton, who appears on behalf of Ms Abdallah, contended that I ought not hear the detention application because I could not be satisfied that Ms Abdallah has been given reasonable notice of the application by the prosecutor, as required by s 50(5).

3. I am informed by Madam Crown that at 2.30 pm yesterday the Crown was provided with a medical report of Dr Bassel Rahman which read as follows:

“I reviewed Katherine Abdallah on 22 April 2015. She is currently suffering from severe anxiety and panic attacks. I have commenced her on a small dose of Valium and referred her to a psychiatrist to assess her further. She is currently unable to attend court and give evidence on Friday, 24 April 2015.”

4. Madam Crown submitted that shortly after that report was received, notice was given to the offender's legal representatives that a detention application would be made.

5. I am satisfied that this constitutes, in all the circumstances, reasonable notice of the application, particularly having regard to the fact that the legal representatives and Ms Abdallah were on notice that they were required to be before me today for the sentence hearing.

Gleeson JA (would refuse bail)

1. My reasons for joining in the orders of the Court made on 10 August 2015 refusing the respondent bail accord with those of Beech-Jones J, save that I would refrain from expressing a view on the matters the subject of his Honour's observation at [49].

Adams J (would grant bail)

3. As Beech-Jones J has pointed out, the decision to refuse bail was that of the majority of the Court. I would have granted bail for substantially the same reasons as, and on the same conditions imposed by, Hamill J. The reason for this different result essentially depends on my differing from the majority as to the risk that Mr Mawad poses for the commission of further offences whilst at liberty on bail.

Beech-Jones J (would refuse bail)

7. On 10 August 2015 the Court heard a detention application brought by the Director of Public Prosecutions (NSW) (the “Director”) under s 50 of the Bail Act 2013 (the “Act’). At the conclusion of argument the presiding judge, Gleeson JA, announced that, by a majority, the Court would grant the Director’s application. An order was made refusing the Respondent bail. He was taken into custody. I was part of that majority. These are my reasons for granting the Director’s application.

Background

8. On 1 October 2014 the Respondent, Tony Mawad, was arrested and refused bail. On 23 July 2015 Hamill J granted Mr Mawad bail on strict conditions (R v Tony Mawad, unreported, Supreme Court of NSW, Hamill J, 23 July 2015). He was released on those conditions on 30 July 2015. On or about that date the Director filed the detention application. The application was referred to this Court because a bail decision had already been made by the Supreme Court (s 67(1)(e)). The application is to be determined by this Court de novo. It is not an appeal from or a review of the decision of Hamill J (R v Kugor [2015] NSWCCA 14 at [4]), although that does not mean the judgment of Hamill J cannot be considered for its persuasive effect which in this case was substantial.

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Police views

31. During the hearing of the application the Crown Prosecutor sought to rely on a letter written by the investigating officer, dated 14 July 2015, addressed to the “Presiding Judge” outlining, inter alia, the officer’s view on various matters relevant to the bail application that was before Hamill J and relevant to the detention application in this Court. At the time it was provided to Hamill J his Honour noted that it was “received but disregarded [officer’s] views as to outcome of [the] application as not relevant”.

32. Ms Francis objected to the Court receiving the letter. The Crown Prosecutor indicated that she only wished to rely on the following extracts from the letter being matters potentially relevant to an assessment of bail concerns:

“This investigation has uncovered evidence that the Accused has contacts with known criminals who have access to firearms. Police are of the view that firearms can easily be sourced by the Accused and he would have a reason/ motive to do so against parties involved in this investigation particularly *** *** and his family.

...

The Accused can easily find the whereabouts of *** *** and his immediate family as *** *** currently remains at his normal residential address with his partner and children. These concerns have previously been expressed by *** *** and his family ... The Accused is well known by myself as the officer in charge of this investigation ... to have a lot of criminal connections in the suburbs where the *** *** ... family reside.”

33. Ms Francis objected to the Court receiving the emphasised passages in the above extract on the basis that they were mere expressions of opinion that are inscrutable in light of the absence of any detail to support them.

34. Ms Francis referred to the following passage from the judgment of Garling J in JM v R [2015] NSWSC 978 at [48] (“JM”):

“Section 18 does not permit a court to have regard to the views of investigating police, or any other police officer, about whether bail should, or should not, be granted. The only views to which a court may have regard are those of a victim, or the family member of a victim and then, only to a limited extent: s 18(1)(o) of the Act. A police officer may, and commonly will, put material or relevant facts relating to the matters required by s 18 of the Act, to be considered by a court. But this is, or should be, limited to nothing more than a factual account. Statements of police opinion, or views as to the appropriateness of a grant, or refusal, of bail fall outside the terms of s 18 and are thus unable to be considered.”

35. I respectfully agree with his Honour that the opinion of a police officer that bail should be refused is a matter that is “unable to be considered”. This is the view that was adopted by Hamill J. However, the present issue concerns police opinions and assertions on factors affecting bail such as the bail applicant’s ability to access weapons and his alleged “criminal connections”.

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38. The bail authorities referred to in this provision include a “police officer, an authorised justice [and] a court” (s 4) most, if not all, of whom deal with a significant volume of bail applications in a limited time frame. Thus the provision facilitates the orderly and expeditious disposition of bail applications by not requiring bail authorities to undertake a process of determining whether or not evidentiary material in whatever format should be admitted. Instead the bail authority can receive material it “considers credible or trustworthy”. Further, the bail authority can determine whether that relatively low threshold is met at the time the information is provided to it or at the time it determines the bail application. In effect s 31 enables a bail authority, including a court, if it so choses, to avoid making “rulings” on whether or not material that has apparent relevance should be received. Instead the bail authority can receive the material and give it such weight as it considers appropriate in its deliberations.

39. In this case the objected to opinions of the police officer can be considered at least “trustworthy” in that there is no reason to doubt the bona fides of its author. However, just because this Court is not bound by the rules of evidence does not mean it is obliged to ignore the policy and rationale underlying those rules (R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256 per Evatt J). This includes scepticism of conclusions unsupported by any factual detail. In my view, the absence of any detail setting out the basis for what are otherwise potentially damaging assertions warrants this Court not attributing any weight to those assertions. They played no part in my deliberations.

Payne JA, McCallum and Davies JJ

1. Peter Viavattene stands charged with an offence of robbery contrary to s 94 of the Crimes Act 1900 (NSW). The charge is based on an allegation that he pushed his neighbour in the chest and stole her iPhone after she began filming him during the course of a dispute between her husband and Mr Viavattene’s wife. The offence is alleged to have been committed on 12 February 2016. The applicant was arrested on 23 February 2016 and has been in custody on remand since that date. The matter is next before the Local Court at Lismore for mention on 21 June 2016.

2. Having been refused bail in the Local Court, Mr Viavattene made a release application to the Supreme Court (invoking that Court’s power under s 66 of the Bail Act 2013 (NSW)). The application was initially listed (in accordance with the Court’s usual listing arrangements) to be heard on 25 May 2016. However, by notice of motion filed 10 March 2016, the applicant sought, among other things, to have the hearing of the application expedited.

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5. The release application was heard by Bellew J on 6 April 2016 and, owing to the length of the applicant’s oral submissions, continued into a second day, on 8 April 2016. His Honour dismissed the application, for the reasons stated in an ex tempore judgment given that day.

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Concern that the applicant will fail to appear

23. The principal considerations in assessing whether there is a concern that the applicant will fail to appear if released on bail are his criminal history, his circumstances and his community ties: s 18(1)(a) of the Bail Act.

24. The bail report provided in respect of Mr Viavattene reveals that he has failed to appear at court on a number of occasions.

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32. The Court is required to have regard to the likelihood of a custodial sentence being imposed if Mr Viavattene is convicted of the offence: s 18(1)(i). That consideration is relevant in different ways. The strong prospect of a custodial sentence can sustain a concern that a person is a flight risk, militating against the grant of bail. It is also a factor properly taken into account when considering the length of time the accused person is likely to spend in custody if bail is refused, which is another mandatory consideration: s 18(1)(h). The prospect of a lengthy delay until trial will weigh more heavily in favour of release in a case where the period of delay is likely to exceed the term of any custodial sentence that would be imposed in the case of a finding of guilt; conversely, a lengthy period on bail might, in some cases, give rise to a higher risk of committing serious offences while on bail (not one of the concerns cited by the Crown in this case).

33. Mr Viavattene’s criminal history suggests a significant prospect that a term of imprisonment would be imposed if he is convicted. His record includes convictions for destroying or damaging property, larceny, common assault, contravening an apprehended violence order, resisting a police officer in the execution of duty, failing to appear in accordance with a bail undertaking, police pursuit (failing to stop and driving at speed) and wilfully obstructing a police officer in the execution of duty. He served terms of imprisonment for the last two offences in that list.

34. Importantly, however, there is a substantial risk in the present case that the likely delay before trial would exceed the term of any sentence that might be imposed. The offence with which Mr Viavattene has been charged can only be dealt with on indictment and will accordingly have to be committed to the District Court for trial. The Crown submitted that it would be at least six months before Mr Viavattene’s committal proceedings can be determined and accepted that, unless the present charge is changed, a trial date in the District Court will be “a different story altogether”, from which we infer an acceptance that unless the Crown changes the charge, a trial date for Mr Viavattene in the District Court before mid-2017 is unlikely.

35. Having regard primarily to the history of failing to appear, the Court is persuaded that there is a concern that the applicant would fail to appear if released on bail. Whether that amounts to an unacceptable risk is addressed below.

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41. In our view, delay is the critical consideration in the present case. The proceedings against the applicant are still in the Local Court and, as already noted, the charge is one that can be dealt with only on indictment (meaning that the applicant will have to be committed to the District Court and, if committed, tried in that Court).

42. Although there is a risk of failure to appear and a risk of further conflict endangering the alleged victim and her partner, we are persuaded that, if appropriate conditions were imposed, those risks would not be unacceptable, particularly when weighed against the strong likelihood that, if bail is refused, the applicant will be in custody on remand for longer than any likely custodial sentence upon conviction. In reaching that conclusion, as to the risk of further conflict with the alleged victim and her partner, we have had regard to the fact that Mr McKinnon told police he did not seek an apprehended violence order to protect himself and his partner against Mr Viavattene.

43. It is obviously desirable that Mr Viavattene should voluntarily move from the area where the long-standing conflicts with his neighbours have emerged. We do not consider, however, that the imposition of bail conditions is an appropriate mechanism to effect that outcome.

44. We propose to mitigate the bail concerns demonstrated by the evidence by imposing strict conditions having the effect that if Mr Viavattene contacts or attempts to contact in any way (except through a legal representative) Ms Rebecca Mason or Mr David McKinnon he will be in immediate breach of his bail conditions.

45. We consider that the bail concerns identified can adequately be addressed by the imposition of these strict conditions which are calculated to keep the applicant away from Ms Mason and Mr McKinnon and by a condition requiring regular contact with police.

Leeming JA

1. These are my reasons for participating in this Court’s order made on 21 February 2018 that the summons be dismissed.

Overview

2. By summons filed on 2 February 2018 and listed for expedited final hearing on 15 February 2018, the applicant seeks judicial review and orders in the nature of certiorari quashing orders made by the District Court of New South Wales on 29 January 2018 pursuant to s 50 of the Bail Act 2013 (NSW). Earlier that day, the applicant had entered pleas of guilty to six charges relating to sexual offending against a young boy throughout a period between March 1980 and July 1981. At the time, the applicant was aged 20 or 21 and coached a football team of boys aged around 11. The victim was a member of the team. The charges to which he has pleaded guilty are five indecent assaults contrary to (former) s 81 of the Crimes Act 1900 (NSW) and one charge of the offence then known as buggery contrary to (former) s 79 of the Crimes Act, for which the maximum penalty was 14 years imprisonment. By reason of s 578A of the Crimes Act, the applicant cannot be named because doing so would be likely to lead to the identification of his victim. “Barr” is a pseudonym.

3. The issues which were debated in the parties’ written and oral submissions are numerous. They fall into two classes. The first relates to this Court’s jurisdiction to hear and determine a challenge to an order made under the Bail Act. The second relates to the proper construction of the Bail Act, and in particular the circumstances when a subsequent application for an order may be made and the construction of s 16A. Neither class is free from complexity.

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Procedural background

11. It is necessary to summarise how the applicant came to be on conditional liberty prior to 29 January 2018, because the gravamen of the application turns on the history of the prosecution prior to the applicant’s guilty plea.

12. A Court Attendance Notice was issued in August 2016, charging the applicant with the offence under s 79 and one offence under s 81. The Crown made a detention application on 13 December 2016, and on that day clarified by email that:

“The application filed earlier today in relation to the matter of xxx was not clear. The Crown is seeking the imposition of bail conditions not asking for the accused to be taken into custody.

I have amended my application accordingly (see attached).”

13. The attached application identified conditions sought to be imposed involving residence, weekly reporting, not approaching the complainant and surrendering the applicant’s passport. Bail was granted subject to those conditions by the Local Court on 21 December 2016.

14. The trial was listed for hearing in the District Court commencing Monday 29 January 2018. It seems that on that morning (precisely when is not clear from the materials) the applicant pleaded guilty.

15.  The Crown then applied, orally, for a detention application. The applicant submitted that this was contrary to s 50(5) of the Bail Act, which provides that:

“A court or authorised justice is not to hear a detention application unless satisfied that the accused person has been given reasonable notice of the application by the prosecutor, subject to the regulations.”

16. This was raised before the primary judge, very briefly:

“It is a position your Honour where my friend has caught me somewhat by surprise this morning with the detention application, but put aside notice requirements and so forth. I am uncertain what my friend says is the unacceptable risk which presents today, that was any different to what it was yesterday or at any time.”

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22. The primary judge mentioned, briefly, submissions to the effect that the applicant had been in steady employment and would be disadvantaged if he did not remain at liberty prior to his sentencing. His Honour did not regard those matters as discharging the onus upon him to show cause. It is clear that his Honour proceeded on the basis that he was required by s 16A of the Bail Act to refuse bail, and did not reach the stage of evaluating whether there was an unacceptable risk which could not be addressed by the imposition of conditions, in accordance with Division 2 of Part 3 of the Bail Act.

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76. Division 1A, which comprises ss 16A and 16B, stands in contrast with Division 2, comprising ss 17-20A. The latter, which is headed “unacceptable risk test – all offences” applies to all bail decisions irrespective of their subject matter. The former applies only when a bail decision is made for a “show cause offence”.

77. It is plain that in the case of a show cause offence, Division 1A must be applied, and if cause is not shown, bail must be refused, and that is an end of the application. However, if cause has been shown, then the bail decision must be made in accordance with Division 2. Division 2 is notably prescriptive. It specifies, in s 17(2), four particular “bail concerns”, and it prescribes in s 18(1) a lengthy but exhaustive list of the matters which a bail authority must consider in assessing those bail concerns. There follow a series of provisions directed to determining whether there is an unacceptable risk, and the way in which bail conditions are to be imposed. Division 2A provides special rules for particular relatively minor offences, which give rise to a right to release, and particular serious offences, such as certain terrorism related offences in s 22A.

78. In contrast, there is nothing express in s 16A on what is to be demonstrated in order to “show cause why his or her detention is not justified”. The application of Division 1A was considered by McCallum J in M v R [2015] NSWSC 138, concluding at [16], on which the applicant relied:

“But the Court should not approach the show cause requirement, in my view, on the ground that an applicant must go further in order to show cause why his or her detention is not justified or bears any higher onus than to persuade the Court that there is no unacceptable risk having regard to the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A.”

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81. True it is that there is a qualified endorsement in [24] of Tikomaimaleya of what was said in M v R. However, this Court in Tikomaimaleya was at pains to say not merely that the show cause requirement in Division 1A was distinct from the unacceptable risk test in Division 2, but also that the determination by a bail authority as to whether cause had been shown was to be determined by consideration of all the evidence (rather than the matters confined by s 18) and against a different criterion. I regard the Court in Tikomaimaleya to have held, by way of contrast with what had been said at [16] in M v R, that there would be occasions when a person who would be granted bail because he or she satisfied the unacceptable risk test, would fail to obtain bail because he or she could not show cause why his or her detention was not “justified”.

82. A basic principle of the Australian legal system is that a person’s liberty should not be curtailed without proper process. A person, even a person who has pleaded guilty to a serious criminal offence, is entitled only to be denied his or her liberty pursuant to a sentence imposed in accordance with law, insofar as the imprisonment is part of the punishment imposed upon him or her following conviction. There is force in the submission that the denial of liberty following a detention application should occur for the purposes of the Bail Act and not for the purposes of imposing punishment.

83. But Division 1A and s 16A must perform some function. The mandatory language, the legislative history and the extrinsic materials all speak to Division 1A imposing a separate and additional test upon a class of accused persons. There is no way in which s 16A may be construed other than requiring that a class of persons, namely, those who are the subject of a bail decision for a show cause offence, must themselves demonstrate some cause why they should be permitted to remain at liberty.

McCallum J

88. I dissented from the Court’s order dismissing the summons, for the following reasons.

89. While the question of jurisdiction must necessarily be determined first, it will be easier to explain my conclusion on that question at the end of this judgment.

90. As Leeming JA has noted, the issues debated in submissions were numerous. The determinative question, in my respectful opinion, is whether the District Court had authority to hear the prosecutor’s detention application immediately. I agree that s 74 of the Bail Act 2013 (NSW) did not apply, for the reasons stated by Leeming JA. The focus of my consideration has been the provisions of s 50(5) and the content of the requirement for the prosecutor to give “reasonable notice” of a detention application.

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119. The fact that counsel for the applicant did not seek further time after the limited basis for the application was articulated is not to the point. The purpose of requiring reasonable notice to be given is to allow time to prepare so that lawyers can take instructions, reflect upon the applicable law and gather evidence. The Act requires the court to be satisfied as to the reasonableness of the notice given before proceeding to hear the application. In the present case, the judge could not have been satisfied of that matter. In reaching that conclusion, I mean no criticism of the judge. As noted by Leeming JA, s 50(5) was not drawn to his Honour’s attention. However, in my respectful opinion, absent satisfaction that reasonable notice had been given, his Honour had no authority to proceed to hear the application instanter.

N Adams J

124. On Wednesday, 21 February 2018, the Court made orders that the summons be dismissed. These are my reasons for joining in the making of those orders.

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135. It can be seen that there are clear textual and contextual bases for concluding that the show cause test and the unacceptable risk test are two separate tests. I adopt what Leeming JA has observed in this regard at [76]-[86].

Harrison J

1. I agree that the applicant should be granted bail on the conditions proposed by Dhanji J and for the reasons that he has given. I also agree with, and endorse, the further remarks of Davies J.

Davies J

2. I have had the advantage of reading in draft the judgment of Dhanji J and, subject to what follows, I agree with his Honour’s reasons and the grant of bail on the conditions he proposes.

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4. The factor which weighs most heavily with me is contained in s 18(1)(l), being the need for the accused person to be free to prepare for his or her appearance in Court. The applicant is unrepresented, and the cases against the accused are not entirely straightforward. Whilst the evidence discloses that some facilities have been provided to the applicant in custody, it is clear that those facilities have limitations which make it difficult for him to prepare his case adequately for trial.

5. The position here for the applicant is not as difficult as apparently obtained in Shalala v R [2012] NSWSC 351, but as Hulme J made clear in that case at [6] and [22], an accused has a right to appear for himself, and he must be able adequately to prepare his case. The evidence suggests that his preparation is being impaired by the limitations of his custody. Those limitations have been increased by the impact of the Covid-19 pandemic and the responses which Corrective Services have made to the pandemic.

6. Having regard to the significance of the applicant’s need to prepare his case, and to the bail conditions which are proposed, I consider that the concern that the applicant will continue to commit serious offences does not amount to an unacceptable risk.

Dhanji J

8. Neil Andrew Simpson (the applicant) has applied for his release on bail pursuant to s 49(1) of the Bail Act 2013 (NSW) (“the Act”). This Court has jurisdiction to hear the application, a bail decision having previously been made by the Supreme Court (s 67(1)(e) of the Act). Release applications were refused on 12 October 2020 by Hidden J, when the applicant’s matters were before the Local Court, and most recently by N Adams J on 15 June 2021, by which time the applicant’s matters had progressed to the District Court.

9. The applicant appeared for himself on this application and, it is understood, intends to represent himself at trial. Separate counsel were briefed on behalf of the Commonwealth and State directors. Both opposed the grant of bail.

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20. The exercise to be conducted by this Court

21. Perhaps as a result of being unrepresented, the applicant filed submissions which were directed to establishing error with respect to the decision of N Adams J. Given this Court’s name and usual function, the approach is understandable. However, a release application in this Court is dealt with de novo, and as such there is no requirement to establish error with respect to the earlier decisions: s 75 of the Act; Popovic v R [2017] NSWCCA 118 at [24]- [25]. Notwithstanding that, the Court may have regard to earlier judgments: Plassaras v DPP (NSW) [2018] NSWCCA 218 at [6], including for their persuasive effect: Flower v R [2020] NSWCCA 64 at [6].

22. In determining whether or not to grant bail, the Court is not bound by the principles or rules of law regarding the admission of evidence, but can take into account any evidence or information which it considers credible or trustworthy in the circumstances: s 31 of the Act.

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The police officer’s letter

50. In addition to the material relating to the above matters, there was contained in the bundles relied on by the State and the Commonwealth letters written by a police officer who described himself as one of two principal informants with respect to the State charges. The letter in the State bundle was dated 7 April 2021. Somewhat ironically, the letter of the State police officer in the Commonwealth bundle was more current, with the date of 17 September 2021. Having regard to the more recent letter, the April letter was not pressed by the State prosecutor. Had it been, it would have been of no assistance to me for the reasons which follow with respect to the September letter.

51. The September letter contained a total of 11 paragraphs. All but two of those paragraphs contained either a repetition of material found elsewhere, or an opinion in the nature of a submission such as “the brief of evidence subject to the current matters is extremely strong”. The repetition of factual material is unhelpful. A police officer’s opinion with respect to a matter such as the strength of the case is similarly unhelpful (even if, arguably, it is “evidence or information” with respect to a matter in s 18 of the Act: see Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227; cf Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50).

52. With respect to the two paragraphs that do not fall into this category, matters were asserted without sufficient explication to warrant any weight being attached to them: see Mawad at [39]. It is surprising that, six years after this Court gave its decision in Mawad, police officers are still preparing letters in this form. It is even more surprising that prosecutors are including them in the materials relied on by the Crown.

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The unacceptable risk test

67. It was uncontentious that the unacceptable risk test (and only the unacceptable risk test) applies to this application. Section 19(1) of the Act requires that bail be refused if this Court is “satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk”. Section 19(2) provides:

(2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will—

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

68. In applying the unacceptable risk test, the Court must assess the bail concerns referred to in s 17(2): see s 17(1). Those bail concerns are the same matters referred to in s 19(2). In assessing those bail concerns, the Court must have regard only to the matters in s 18.

69. The determination of “unacceptable” risk is made in the context of the fact that the presumption of innocence and the right to be at liberty remain fundamental common law principles – see the preamble to the Act; Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325 at [65]; JM v R [2015] NSWSC 978 per Garling J at [33]; M v R [2015] NSWSC 138 per McCallum J (as her Honour then was) at [4]. And, as has been said more than once, "no grant of bail is risk free": see, for example, R v Xi [2015] NSWSC 1575 at [42].

70. The list of matters to be considered in making this determination includes “the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A”: s 18(1)(p).

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Determination

92. I have already indicted in my reasons, above, that the applicant, in my view does not present an unacceptable risk for the purposes of s19(2)(a) and (d). That leaves for consideration the risk of committing a serious offence and the (related) risk of endangering the safety of (as presently relevant) individuals or the community: s19(2)(b) and (c).

…

95 In the present case, I am particularly concerned by the length of time the applicant will have been in custody by the time his trial starts (s 18(1)(h)). A delay of at least two years between arrest and trial, to my mind, puts a very different complexion on this matter. Some twenty years ago Sperling J said in R v Cain (No 1) (2001) 121 A Crim R 365; [2001] NSWSC 116 at [9]:

As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial but a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights.

96 See also R v Kugor [2015] NSWCCA 14 at [35]; JM v R [2015] NSWSC 978 at [94] in the context of shorter delays.

97 It is also important to observe that the applicant’s custody during his remand has been, and can be expected to continue to be, affected by restrictions resulting from the pandemic. This is not an insubstantial additional burden: see Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [48]; Rakielbakhour v DPP [2020] NSWSC 323 at [13]- [16].

98 I am also influenced by the difficulties the applicant has experienced and will continue to experience in preparing what is, at least in the case of the State matters, a complex matter for trial: s 18(1)(l). Preparing a complex case while relying on handwritten notes with limited access to legal resources is far from ideal. It may be the applicant has committed offences for which he deserves a significant sentence. But he should have as fair a trial as possible before that occurs.

99 I am also influenced by the conditions that are able to be imposed. As noted above, the conditions I have in mind will require him to be at the home of his parents unless he in the company of one or both of them. I also have in mind that he be prohibited from entering any post office. While perhaps not impossible, the commission of offences in these circumstances will be difficult.

100 I am of the view that, balancing the various considerations, the applicant does not pose an unacceptable risk if granted bail, subject to the very stringent restrictions set out in the order below: