Show Cause

Beazley P, R A Hulme and Adamson JJ

1. The Director of Public Prosecutions (NSW) made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) following the release on bail of Talemo Tikomaimaleya (the respondent) by his Honour Judge King SC in the District Court on 27 February 2015. His Honour's bail decision followed the return of a verdict of guilty by a jury in the respondent's trial for an offence of sexual intercourse with a person under the age of 10 years. This is an offence contrary to s 66A(1) of the Crimes Act 1900 (NSW) and there is prescribed for it a maximum penalty of imprisonment for 25 years and a standard non-parole period of 15 years.

…

4. At the conclusion of the hearing the Court granted the application and made an order that bail be refused. What follows are the reasons for the making of that order.

…

14. Part 3 of the Bail Act 2013 is headed "Making and variation of bail decisions". Division 1A (ss 16A and 16B) deals with a "show cause requirement" for certain types of offences. Division 2 (ss 17 to 20A) deals with an "unacceptable risk test" which applies to all offences. (Division 1A was inserted and various amendments to Division 2 were made by the Bail Amendment Act 2014 (NSW) which commenced operation on 28 January 2015.)

15. An offence against s 66A(1) of the Crimes Act is a "show cause" offence in that it is a "serious indictable offence that involves sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years": s 16B(1)(b)(i). The provisions of s 16A of the Bail Act 2013 apply:

“16A Accused person to show cause for certain serious offences

(1) A bail authority [defined in s 4(1) to mean a police officer, an authorised justice or a court] making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test-all offences).

(3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.”

16. The terms of subs (2) make it clear that there is a two-step process involved in determining bail release and detention applications for show cause offences. That this is so is further confirmed by a flow chart in s 16; the provision in s 17(4) that s 17 does not apply if bail is refused under Div 1A; and the provision in s 19(3) that in relation to a show cause offence, the fact that the accused person has shown cause that detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.

17. If a person charged with an offence of a type listed in s 16B succeeds in showing cause why his or her detention is not justified pursuant to s 16A(1), it is necessary for a bail authority to consider whether there is an "unacceptable risk" that the person will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses: s 19(2). Bail must be refused if the bail authority is satisfied that there is an unacceptable risk: s 19(1). If there are no unacceptable risks, bail must be granted, with or without conditions; or the person may be released without bail; or bail may be dispensed with: s 20.

18. Before making a bail decision in terms of whether or not there are any unacceptable risks (as defined in s 19(2)), the bail authority must assess any "bail concerns" (s 17(1)). Bail concerns are defined in s 17(2) in a similar fashion to the definition of "unacceptable risk" in s 19(1): they are concerns that the accused person if released from custody will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses.

19. In the assessment of bail concerns, a bail authority is to consider the various matters listed in s 18, and only those matters.

20. Two matters may be noted and emphasised from this overview of the provisions of the Bail Act 2013. First, if the offence in question is a "show cause" offence, there is a two-step process: cause must first be shown as to why detention is not justified under Div 1A of Pt 3 and, if it is shown, the bail authority must then consider the "unacceptable risk" test in Div 2 of Pt 3. Secondly, there is an exhaustive list of matters in s 18 that must be considered in relation to the latter but the Bail Act 2013 does not prescribe what must or might be considered in relation to the former.

…

24. We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.

25. It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment.

26. The present case provides an example of why it is important to bear in mind the two-stage approach Parliament has prescribed in relation to bail applications concerned with offences of the type listed in s 16B in that here there is a matter that is relevant to the show cause test that is not available to be considered in relation to the unacceptable risk test. The jury's verdict of guilty is not within any of the matters listed in s 18; yet it is plainly germane to the question whether cause can be shown that his continuing detention is unjustified, since the presumption of innocence, which operated in his favour before the jury returned its verdict, has been rebutted by that verdict.

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.

…

30. As the terms of the Act make clear, the question of whether a person has shown cause, and whether one or more risks are unacceptable, are each an evaluative decision which calls for an identification of all factors relevant to the particular application, an assessment of the weight and significance to be attached to each of those factors, and then an evaluation of whether cause has been shown, or a risk or risks are acceptable or unacceptable.

31. Both tests also involve, although to a lesser degree for the show cause test, an exercise of the prediction of human behaviour, to which no certainty can ever be attached. Reasonable minds may well differ on the result of a bail application. There is no system of appeal legislated for, although a detention application or a bail application may be made to the Court of Criminal Appeal after a bail decision has been made by the Supreme Court. Such application is dealt with as a fresh application: s 75 of the Act.

Principles of General Application

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.

…

Show Cause Test - Discernment

102. It is, sadly, the Court’s experience that a delay of between 12 and 18 months between a person being charged with a serious offence such as murder, and the commencement of their trial, is not out of the ordinary. That is not to say that such a delay is acceptable or desirable. Such a delay reflects the availability of resources in the criminal justice system to enable a fair trial process to take place in an orderly fashion. If greater resources were available, no doubt this time would be somewhat shortened. However, it is correct for the Crown to submit, at least on the material before this court, that no unusual or exceptional delay has as yet taken place, or can be foreseen to be likely. That does not derogate from the basic consideration of the impact of such a pre-trial period on an unconvicted individual: see [33] and [34] above.

…

115. At the end of this review, the Court is confronted, in order to consider the show cause test, with a lengthy, undesirable, but not atypical delay until trial, a young applicant who is in custody for the first time, and a Crown case of a serious offence which is likely to be put before the jury for its determination, but is not sure of success.

116. There is no particular identifiable reason for the applicant to be at liberty on bail. There is no suggested difficulty in preparing his defence. There are no suggested family or personal reasons why his detention is not justified. There is no suggested consequence to other individuals such as family members, of their being particularly disadvantaged by the applicant being held in custody. There is no physical or mental health condition which necessitates treatment outside of custody, or which can more conveniently be attended to in the community. The Crown case is not demonstrably weak, nor are there elements of it which would indicate that one or more elements of the offence are unlikely to be proven.

117. The anticipated length of detention is in a range which is not out of the ordinary. That is, it must be said, clearly longer than is desirable.

118. It is necessary now to make an evaluative decision, having regard to all of these matters as to whether the applicant has shown cause why, in the particular circumstances of this case, his detention is not justified.

119. In my opinion, he has. In this case, the factor which in my assessment is of particular importance, and to me assumes determinative significance, is the applicant’s age (he is 21 years old) combined with the length of time he will, for the first time, be in custody pending trial. For anyone to be held in custody for such a period is undesirable. For a person of a relatively young age, the adverse effects of such a length of time in custody are magnified. The applicant’s age means that he is still at a stage of intellectual, academic and vocational formation. It is well known that emerging scientific research, largely from the availability of longitudinal neuro-imaging studies, suggests that young males may not reach full intellectual maturity until their early to mid-twenties.

120. Whilst the charge is a serious one, and the Crown case is not a demonstrably weak one, my assessment means that in this case, those factors are outweighed by two features of age and length of time in custody to which I have just referred and, accordingly, in my opinion the applicant has shown cause why his detention is not justified.

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.

…

15. The question of the risk of a person committing a serious offence is an evaluative judgment which, as the Court of Appeal explained in Tikomaimaleya, must be assessed on a consideration of all of the evidence or information before the Court which appears credible or trustworthy. The range of offences falling within the definition within the Act of a “serious offences” is broad. A considerable risk of a person committing an offence which, while falling within the definition of a “serious offence”, is one of little consequence (such as the example of a young offender repeatedly stealing chocolate bars) might give rise to a less significant bail concern than a small risk of an offence also characterised as a “serious offence” where the offence the subject of the concern is of a kind which, if committed, would have devastating consequences.

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.

…

21. 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.

Garling J

1. This judgment deals with two bail applications, one brought by A1 and the other by A2. Both applicants are charged with offences arising out of the death of an individual in 2011.

…

A1

7. A1 was arrested on 3 October 2013 and charged with the murder of ZZ. That charge relates to events which allegedly occurred on 11 August 2011 in Sydney. Bail was refused at the time of A1’s arrest, and he has been in custody ever since.

…

A2

13. A2 has been jointly indicted with A1 on a charge that between 10 August 2011 and 14 August 2011 in Sydney, he received, harboured, maintained and assisted A1 in the knowledge that A1 had committed murder. This is an offence against s 349(1) of the Crimes Act 1900.

…

Criminal Proceedings Chronology

18. Each of the applicants was arrested on 3 October 2013. They were charged on that day and have been in custody ever since. The murder of ZZ is alleged to have occurred on 11 August 2011, that is, over two years prior to their arrest.

…

21. It took approximately 2 years from the applicants’ arrest on 3 October 2013 for a complete prosecution brief to be served on each of the applicants. It seems that during this period, there were regular mentions of the matter before the Local Court, perhaps as many as 20. Other than a statement in the Crown submissions that the brief is “very large”, comprising about 17,000 pages and including substantial electronic material, no evidence is provided to this Court to explain the very lengthy time it took the prosecution to complete its brief and provide it to the applicants. In its submissions to this Court on these applications, the Crown accepts that the period involved between arrest and service of the Crown brief “… was unreasonably lengthy”.

22. The matter was mentioned in the Local Court after the service of the brief on 11 September 2015. Unsurprisingly, since the brief occupied 40 volumes, it had not been completely read by the applicants’ representatives. The brief is now said by A1 to comprise at least 50 volumes.

23. The applicants were granted permission to cross-examine some of the Crown witnesses in the committal proceedings in the Local Court, which took place between 11 April 2016 and 14 April 2016. On 15 April 2016, the presiding Magistrate delivered his decision. He committed A1 to the Supreme Court to stand trial on the charge of murder, but declined to commit A2 to stand trial on that charge. Instead, he committed A2 to stand trial on the charge of being an accessory after the fact to murder. Both applicants, and a third co-accused, were arraigned in this Court on 6 May 2016. At that time, a trial date was fixed for 20 February 2017. On the applicants’ application, that trial date has been vacated, and a new trial date in May 2017 has been allocated. The trial is presently estimated to take approximately 4 months.

24. By the time the trial commences, each applicant will have been in custody for just over 3½ years.

….

37. However, not everything that is relevant to the show cause test is relevant to the unacceptable risk test. Section 18 of the Bail Act requires that, in considering the unacceptable risk test, a court is only to consider the matters listed in that section. A court cannot consider anything else. In particular, a court is not entitled to take into account the fact that the applicant has shown cause why their detention is not justified: s 19(3) of the Bail Act. However, the Bail Act does not prohibit the court from considering, at the stage of applying the show cause test, that there are no bail concerns, or that the risks if bail is granted are not unacceptable.

…

43. 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.

44. In light of this second essential principle, the usual custodial arrangements, and in the absence of any provision in the Bail Act, no bail decision can properly be regarded as, and certainly could not properly be perceived as, intruding upon the sentencing discretion of a court. Nothing in the Bail Act warrants a court refusing bail because of a concern that a decision to grant bail may later fetter the decision of a sentencing court.

…

46. Similarly, the inclusion of a requirement to show cause does not bespeak a legislative 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.

…

49. 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) and the Court does not generally hear prosecution witnesses orally, which precludes an assessment of the credibility of a witness save by comparing the contents of a witness’ written statements with other available material. The assessment of the strength of the Crown case is also made at a time quite distant from the final hearing, by which time the material available to the prosecution may be very different. In particular, witnesses whose statements are taken by police do not always give evidence at a trial; the evidence given by witnesses at trial may not accord with their statements; a different picture may emerge during cross examination; and a jury, or the presiding Judge or Magistrate, may take an adverse view of the demeanour or credibility of a witness for reasons not apparent from 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.

…

Discernment

101. The period in which the applicants have each been in custody since arrest and before their trial commences is a very long one. It is much longer than is typically seen in cases of this kind awaiting trial. The delay between the applicants’ arrest and the service of the Crown brief is unexplained, and is unacceptable. Since that time the Court processes have unfolded with due speed having regard to the issues which were, and are, raised, and the volume of the material.

102. The undesirability of any individual being in custody for this length of time is a matter which is to be weighed in considering the question of whether either of the applicants has shown cause why their detention is not justified.

103. One matter which is also of considerable weight in the consideration of whether cause has been shown is the strength of the Crown case. For the reasons which I have described, I regard the Crown case, at this stage, as being a strong one. If accepted, the Crown case demonstrates that the deceased was killed in a planned and deliberate manner and that his body was taken away and buried in circumstances where it has not been recovered. There is persuasive material that the death was a violent one, and carried out essentially for motives associated with the personal position and feelings of A1. This is a strong case of a violent crime.

…

107. In summary, the applicants have been in custody for an unduly lengthy period of time, but the Crown case is a strong one, the alleged crime was a planned and violent one, and there is a risk to the safety of at least one central witness if either applicant is released. In the weighing up of these matters, in my view, I should give the strength of the Crown case the greatest emphasis. It prevails over the other matters.

108. In those circumstances, I am unpersuaded by either applicant that they have shown cause as to why their detention is not justified.

Gleeson JA

1. My reasons for joining in the orders of the Court made on 16 November 2016 refusing the applicant’s release application accord with those of Button J.

Rothman J

2. I agree with Button J.

Button J

Background

4. Ms Kristen Moukhallaletti (the applicant) was refused bail by Bellew J on 11 November 2016. Five days later, on 16 November 2016, she made a further release application to the New South Wales Court of Criminal Appeal. There was no dispute between the parties that the second application was to be determined de novo, although both parties were content for us to have recourse to the judgment of his Honour. At the end of that hearing, I joined in orders of this Court that the application should be refused, with reasons to be provided later. These are my reasons for doing so.

…

Determination

50. I consider that the following basic principles apply to a determination of whether an applicant has shown cause that his or her detention is unjustified.

51. First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

52. Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.

53. Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].

54. Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

55. Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.

Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.

The Court (Beazley P, R A Hulme and Hamill JJ)

1. On Monday 30 July 2018 Andrew John Katelaris made a release application under ss 49 and 67(1)(e) of the Bail Act 2013 (NSW). He appeared for himself. His application was successful and bail was granted on the following conditions: –

…

2. We indicated that we would provide reasons at a later time. These are those reasons.

3. The applicant is charged with a variety of offences, all of which in one way or another arise out of what appears to be his earnest belief in the medical benefits of cannabis and cannabis oil. The first series of charges arose after the applicant appeared on national television and showed the journalists, and in turn the television audience, a secret laboratory within his home on the north shore of Sydney. Following the telecast, police executed a search warrant on the premises on 30 May 2017. As a result, the applicant was charged with a variety of offences. Most significantly, he was charged with the supply of a prohibited drug (being 10.6245kg of cannabis leaf), the supply of a large commercial quantity of cannabis oil (8.1975kg) and manufacturing or producing a prohibited drug in an amount not less than the large commercial quantity (being the same 8.1975kg of cannabis oil). He was also charged with possessing around $10,000 in cash suspected of being the proceeds of crime. The offences involving large commercial quantities carry a maximum penalty of life imprisonment. Accordingly, s 16B(1)(a) and (f) of the Bail Act required the applicant to show cause why his detention is not justified.

…

8. The prosecution opposed the grant of bail. It submitted that the applicant had not shown cause why his detention is not justified. Further, the prosecution submitted that the applicant's attitude, criminal record, and conduct over the last 12 months suggests that, if granted bail, he represents an unacceptable risk of committing serious offences and endangering individuals and the community. It was submitted in writing that the applicant also presented an unacceptable risk of failing to appear, but this submission was not pressed with any force at the hearing. As was observed in the course of argument, the applicant appears to be keen to appear at his trial in order to make his defence of "medical necessity" and thereby advocate publicly in favour of the cause of legalising cannabis at least for medicinal and therapeutic use.

…

11. As to the requirement to show cause, each case will turn on its own particular facts and it is difficult to gain any real guidance from previous cases. That is particularly so where, as here, the case is unusual. The present applicant does not present as a typical criminal or drug dealer. On the contrary, it is apparent from the abundance of material tendered on the application that he is something of a crusader for the cause of legalisation of cannabis for medical use. He was a registered medical practitioner but was deregistered in circumstances which are, according to him, controversial. Part of the material is an extensive report of the Health Care Complaints Commission. It is unnecessary to consider the contents of the report in any detail but it seems the applicant was de-registered in 2005 but continued to treat people in the years that followed. On the other hand, some of his previous "patients" are supportive of him and indicate that his therapeutic use of cannabis has relieved their suffering and improved their quality of life.

12. Of course, none of that amounts to a defence in law although the applicant submitted that it may go to support a defence of “necessity” and justify his possession of the cannabis leaf and oil. The offences with which the applicant is charged are on their face extremely serious and may carry a substantial custodial sentence if proved. In spite of the applicant's submissions in relation to his defence, which were more political than they were legal, the prosecution case appears to be a strong one. The question will be what the tribunal of fact makes of his defence of necessity. It is always difficult for a court sitting on a bail application, and not appraised of all of the evidentiary material that will ultimately be produced at trial, to make an assessment of the prospects that an applicant for bail will be convicted or acquitted.

13. What is known in the present case is that the matters the applicant will seek to ventilate at his trial are relatively complex from a factual and evidentiary point of view and also in relation to the legal issues that arise when an accused seeks to have the defence of necessity left for the jury’s consideration.

14. There is controversy around whether the applicant will be represented by lawyers at his hearing. The prosecution submitted that he has a grant of legal aid and that a particular solicitor has been assigned to his case. However, the applicant informed the Court that he is not satisfied with the services he has received to this point and it is likely, or at least possible, that he will represent himself at trial.

15. The applicant also put to the Court, and we are inclined to accept, that he has very limited access to legal resources whilst in custody. He is unable to access legal authorities on websites such as AustLII, Caselaw and the like. Further, it is likely the applicant will need to consult with medical and pharmacological experts in order to lay the foundation of the defence he hopes to conduct. Although this latter point was not specifically articulated, we must take into account the fact that the applicant represented himself and, in spite of his obvious self-assurance (not to say solipsism), is not legally qualified or skilled in advocacy. Mustering such evidence and preparing for the legal arguments is particularly difficult for him whilst he is in custody.

16. It must be accepted that it would be an unusual case where an applicant could show cause by reference to the difficulties in preparing their defence represented by their incarceration. As Senior Counsel for the prosecution pointed out, this is a problem faced by most remand prisoners in one form or another. However, in the particular and unusual circumstances of the present case, we are satisfied that in combination with a number of other matters the applicant’s inability or difficulties in preparing his defence satisfies the show cause requirement.

…

19. It may be that none of those matters individually would be sufficient to overcome the hurdles that the applicant faces to show cause in the circumstances of this case. However, we were satisfied that the combination of matters did so.

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.

…

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.”

…

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.

…

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.”

…

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.

…

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.

…

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].

…

145. I have been unable to find any decisions of the Court of Criminal Appeal in which the show cause onus had been discharged on the basis that the court was satisfied there were no unacceptable risks associated with the release of the applicant.