Director of Public Prosecutions (NSW) v Brooks

Court of Criminal Appeal (NSW)|2015-07-08|Before: Hoeben CJ, Johnson J, Hulme J, Beech-Jones J

Solicitors: Solicitor for Public Prosecutions - Applicant Nyman Gibson Miralis - Respondent File Number(s): 2015/197119

JUDGMENT

THE COURT: The Director of Public Prosecutions (NSW) ("the Director") has made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) ("the Act") in respect of Bradley Brooks ("the respondent") who is charged with the murder of Gregory Gibbins and the intentional infliction of grievous bodily harm upon Adam Swindell at Toukley in the early morning of Monday 6 April 2015.
This Court has jurisdiction to determine the application given that bail was granted to the respondent in the Supreme Court by Beech-Jones J: s 67(1)(e) of the Act. Bail was granted last Thursday.
The application is to be determined by this Court afresh; that is, it is not an appeal from, or a review of, the decision of his Honour: R v Kugor [2015] NSWCCA 14 at [4]; Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 at [4].

The alleged offences

The Director provided a detailed statement of facts concerning the alleged offences. It is to the following effect.
The deceased and some friends, including Adam Swindell, attended a music festival at the Beachcomber Hotel ("the Hotel") in Toukley on Sunday 5 April 2015. The respondent, together with his brother Joel Brooks, his father, Corry Brooks and some other family members also attended the festival. The respondent did not know the deceased, and there was no interaction between them while at the Hotel.
The festival was attended by over a thousand people. At the end of the festival a large number of people congregated outside the Hotel and/or crossed the road to the Aldas pizza shop. The deceased and Mr Swindell are seen on CCTV leaving the Hotel around 11.50pm. The respondent is seen leaving the Hotel with a group of males including his brother, around 11.57pm.
Shortly after 12am, the deceased and Mr Swindell were standing together outside the Aldas pizza shop. A heated conversation broke out between a male in the respondent's group and a female standing with the deceased and Mr Swindell. Joel Brooks approached Mr Swindell who began to walk away from him. Joel Brooks followed him. Mr Swindell turned and pushed Joel Brooks away. The deceased was standing next to Mr Swindell. The respondent took a knife out of the pocket of his pants and moved quickly toward the deceased and Mr Swindell. Mr Swindell began to run away. The respondent stabbed the deceased in the chest on more than one occasion. The deceased stumbled toward the road and collapsed face first onto the ground. The deceased was taken to hospital but pronounced dead at 1.05am.
The respondent dropped the knife after stabbing the deceased. He immediately picked it up and, with Joel Brooks, ran toward Mr Swindell. Mr Swindell turned to face the two men who came at him each with a knife. The respondent and Mr Brooks were seen to strike Mr Swindell who sustained a deep and severe laceration to the upper right arm and a stab wound to the left of his chest.
The respondent and his brother were identified by witnesses through police identification procedures.

Submissions

Counsel for the respondent contends that cause has been shown for the following reasons. The respondent is 19 years of age. He has no criminal history from which it follows that he has no history of violence or of breaching bail obligations or other court orders. He has strong ties to his local community including immediate family living on the Central Coast and a grandmother living in western Sydney. Prior to his arrest he was working as an apprentice chef and was studying tourism and hospitality at TAFE. He has no criminal associations.
Other matters raised include the potential delay between the respondent's arrest on 6 April 2015 and when a trial might be expected to take place, namely well into 2016. Reference was also made to the importance of the presumption of innocence and the desirability for the respondent to be at liberty for the preparation of his defence.
It was also said to be relevant that the applicant was arrested at his family home some 24 hours after the incident in question. There is no suggestion that he made any attempt to flee the jurisdiction.
Submissions were also made about the strength of the prosecution case. It is dependent upon identification evidence and circumstantial evidence. Identification evidence is often fraught with questions of accuracy and reliability. Beech-Jones J recognised this but concluded that on the material presently available the evidence "appears to represent a reasonably strong combination of material to demonstrate that the respondent committed the offence". In my own assessment I would agree with that view. However, not all of the evidence has been served and it should be recognised that this assessment might change once it is all available.
The bail granted by Beech-Jones J included quite stringent conditions. They are that he reside at a nominated address with his grandmother in western Sydney and not leave that address except for certain specified purposes; he report daily to police; an acceptable person deposit security in the sum of $100,000; the respondent not apply for a passport and not go near any point of international departure; not to travel north of Hornsby except for attending court; not to consume alcohol or drugs; and not to contact by any means his brother or any prosecution witness. He is also required to notify the police officer in charge of the case of his employment details and of any TAFE course he enrols in.
Counsel for the respondent submitted that these conditions are sufficiently strict to avoid any risk of interference with witnesses, to protect the community from any risk of further offending, and to ensure there will be no failure to appear in court.

Determination

Notwithstanding the many compelling subjective factors that are relied upon by the respondent there are some matters that give rise to concern. It is evident that the respondent's family may have provided assistance to him and his brother in avoiding detection.
When police executed the search warrant at the family home during the evening of 6 April 2015 they found clothing and footwear soaking in the laundry. The applicant's parents denied that a singlet and an item of footwear belonged to the respondent whereas on the Crown case they were his.
The respondent's mother told police that she had picked up the respondent, his brother, his sister and his girlfriend from the hotel the previous night at 11.00pm. When each of the respondent and his brother were interviewed by police on the night of 6 April, they each also said that they had been picked up at 11.00pm. However, the Crown case is that the respondent and his brother were outside the Aldas pizza shop from around 11.57pm when they are shown on CCTV to be leaving the Hotel.
Another troubling aspect is that if the prosecution allegations are true (and as I have previously observed, the case is reasonably strong), it means that the respondent was carrying a knife on the night of the incident (as was his brother) and he was prepared to use it with little or no provocation in a most seriously violent manner. It is to be recalled that the deceased was stabbed to the chest. This bespeaks an intention to kill, or at the very least a very clear intention to inflict grave injury.
A further matter of concern are the circumstances leading up to the infliction of grievous bodily harm upon Adam Swindell. On the Crown case Mr Swindell was pursued by the respondent and his brother after Mr Gibbins had been stabbed. He was then attacked by both of them wielding knives and severely injured. Again, there is no ready explanation for this onset of violence.
As was submitted by the Crown, there is nothing particularly special or unusual in what the respondent has put before the Court. Age, lack of criminal antecedents, ties to the community and strong family support do not amount to showing cause. This is particularly so when one has regard to the seriousness of the offence with which the respondent has been charged and the apparent strength of the Crown case. In view of the conclusion which we have reached, it is not necessary to consider the question of unacceptable risk.
Accordingly, we are not satisfied on the balance of probabilities that the detention of the respondent, at this time is not justified. Should, as a result of further inquiries, it turn out that the Crown case is not as strong as it currently appears, this application should not preclude the respondent making a further application for bail at a later time.

Orders For these reasons the Court made the following orders: 1. Grant the Director's detention application. 2. Bail refused.

Amendments 20 July 2015 - Incorrect notation of solicitors for respondent. 06 August 2018 - publication restricted removed - judgment republished DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2018

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