Director of Public Prosecutions (NSW) v Tikomaimaleya

The practice of bail applications being referred to the Court of Appeal

1. In R v Rowe [1991] NSWCA 300, Hunt AJA described the practice of referral of bail matters from the Supreme Court to this Court as follows: "… the practice adopted by the Supreme Court (since as long ago as 1979), where an applicant is already the subject of a refusal of bail by a judge of either the District Court or the Supreme Court during a trial or pending sentence, has been for the single judge before whom the application comes to decline to exercise that jurisdiction, but (if there be circumstances shown which may be thought to justify a reconsideration of bail) to remove the application into the Court of Appeal".
2. That was a practice in force during the currency of the Bail Act 1978. From the inception of that Act, the Supreme Court had a power to review bail decisions of the District Court (s 45(1)) but the Court of Criminal Appeal had power only to review its own bail decisions (s 46). Amendments made by the Courts and Crimes Legislation Further Amendment Act 2008 (NSW) which came into force on 8 December 2008 (by substituting a new s 45 and repealing s 46) took away the Supreme Court's power to review District Court bail decisions and gave it to the Court of Criminal Appeal. That was how the matter stood until the Bail Act 1978 was repealed.
3. The practice of referral from the Supreme Court to the Court of Appeal of bail decisions made in the District Court should have ceased with the 2008 amendments. And, it seems, it did cease with only one exception: in DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51 what was described as the "long standing practice" of referral to the Court of Appeal was applied. This was not long after the 2008 amendments took affect and they seem not to have been brought to the Court's attention.
4. From the commencement of the Bail Act 2013 there is no practical reason for referral to the Court of Appeal of any bail application, whether for release, detention or variation, following a determination in either the District Court or the Supreme Court. The Bail Act 2013 provides a clearly structured scheme for the bail decisions that can be made by each court.
5. The Supreme Court is provided with the power to hear a detention application or variation application where a bail decision has been made by the District Court, the Local Court, an authorised justice or a police officer (s 66(2)). (It also has the power to hear a release application where bail has been refused by another court, an authorised justice or a police officer (s 66(1).)
6. Section 67 provides the Court of Criminal Appeal with power to hear a bail application where, inter alia, a bail decision has been made by the Supreme Court.
7. This indicates a clear Parliamentary intention that bail decisions made in the District Court will be the subject of any further release, detention or variation application in the Supreme Court. If a party is dissatisfied with the outcome there is the potential for a further application to be brought in the Court of Criminal Appeal.
8. Confirmation of this construction is to be found in the Second Reading Speech (which may be used as an aid to interpretation: s 34(2)(f) of the Interpretation Act 1987 (NSW)), the relevant part of which is reproduced in Howie and Johnson, Criminal Practice and Procedure NSW, LexisNexis Butterworths at [9-s 66.5] in the commentary to s 66: "In the second reading speech for the Bail Bill 2013, the Attorney General said concerning s 66: 'Division 3 sets out the powers of particular courts to hear bail applications. I will not set out these provisions in detail. However, I note that proposed section 66 allows the Supreme Court to hear a variation application or detention application where a bail decision has already been made by the District Court. This differs from the existing Act whereby decisions of the District Court can be reviewed only by the Court of Criminal Appeal.'"
9. The practice of referring bail applications from the Supreme Court to the Court of Appeal should have ceased with the introduction of the 2008 amendments and has no place under the Bail Act 2013.

Show cause and unacceptable risk tests in the Bail Act

1. 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.)
2. 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."
3. 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.
4. 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.
5. 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.
6. In the assessment of bail concerns, a bail authority is to consider the various matters listed in s 18, and only those matters.
7. 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.
8. The Director drew the Court's attention to the judgment of McCallum J in M v R [2015] NSWSC 138. Her Honour was dealing with a bail release application by a person charged with a number of offences, at least one of which (murder) was a show cause offence. The matter came before her Honour in the Bails List some two weeks after the amendments made by the Bail Amendment Act came into force.
9. Her Honour noted the various provisions within Div 1A and Div 2 of Pt 3 of the Act, observing (at [7]-[8]) that the "apparent simplicity of a two-stage approach is illusory" and that "it is difficult to conceive how an applicant could show cause without addressing any relevant bail concerns". She continued (at [8]): "The issue whether an applicant has shown cause in my view must inevitably be informed by the outcome of the risk assessment, since the Act contemplates that the detention of a person who poses an unacceptable risk of the kind identified is justified. Conversely, it is difficult to conceive of a finding that an applicant had failed to show cause in circumstances where there was no unacceptable risk. The absence of any unacceptable risk would, I think, inevitably point to the conclusion that the detention was not justified, bearing in mind the common law principles to which I have referred."
10. McCallum J acknowledged that s 16A must be construed as having some work to do. She explained: "[13] … In my view, the section should be understood to have the object of instructing the bail authority that, in the case of a show cause requirement, the circumstance that triggered the requirement is likely to inform the assessment of any bail concerns and the evaluative judgment as to the acceptability of any risk established. In some instances, the circumstance giving rise to the show cause requirement is in itself likely to reveal a bail concern. For example, s 16B(1)(d) specifies, as show cause offences, a series of offences relating to firearms, pistols, prohibited weapons and the like. Similarly, s 16B(1)(f) specifies as show cause offences offences under the Drug Misuse and Trafficking Act 1985 (NSW) involving the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug. [14] The Act guides the court that it must have regard to the common or notorious features of such offences. For example, a strong Crown case as to the commission of an indictable offence involving the unlawful possession of a pistol in a public place would guide the Court in the assessment of a bail concern as to the safety of the community. Similarly, a strong Crown case alleging an offence under the Drug Misuse and Trafficking Act of the kind to which I have referred would guide the Court as to the likelihood of an applicant re-offending, the insidiousness of an addiction to some prohibited drugs, such as Ice, being a matter of notoriety. [15] Importantly, I would construe s 16A as imposing on an applicant the task of persuading the Court that any such obvious bail concern did not give rise to an unacceptable risk of the kind specified in the Act. In saying so, I do not mean to suggest that the Act imposes any formal onus of proof in the traditional sense. The Act makes it clear in s 32 that any matter that must be decided by the bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities, but the rules of evidence do not apply in that task. Rather, the bail authority may take into account any evidence or information it considers credible or trustworthy in the circumstances: see s 31 of the Act. [16] 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."
11. 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.
12. 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.
13. 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.
14. The Director also made relatively brief submissions as to the content of the show cause test in Div 1A. He cited a single authority, a decision of a magistrate in Queensland: Landsowne v Director of Public Prosecutions (Qld) [2013] QMC 19. A number of other interstate authorities are available in which there is discussion of a show cause test in bail legislation in those jurisdictions. However, in the absence of full argument on the issue it would be appropriate to defer more detailed analysis which is now more likely to occur in the Court of Criminal Appeal.

Reasons for determination to refuse bail

1. The Court was not involved in reviewing the decision of King DCJ but rather with considering the Crown's detention application afresh. The following matters were relevant.
2. The respondent was found guilty by a jury on 27 February 2015 of a very serious offence carrying a maximum penalty of imprisonment for 25 years and a standard non-parole period of 15 years. King DCJ adjourned the matter for a sentence hearing on 10 April 2015.
3. According to the indictment the offence occurred between 1 June and 19 December 2013 when the victim was aged either 4 or 5. It occurred in circumstances where she was at a home-based day care centre operated by the respondent's wife. The allegation which the jury found proved beyond reasonable doubt was that the respondent digitally penetrated the little girl's vagina whilst they were alone in the lounge room. According to the statement of facts tendered to this Court, the victim pleaded with the respondent a number of times not to do it and it caused her immediate pain before she pushed him away.
4. The respondent was arrested and charged on 24 December 2013. He was refused bail by police but granted bail in the Local Court the following day. It was a condition of his bail that he not approach the victim, or any other child in care at the day care centre, or anyone with whom such children lived. The respondent breached that condition less than a fortnight later when he and his wife made contact and attended the home of a parent of another child. He was arrested the following day for breach of bail but was again released on conditional bail by the Local Court the following day. The respondent claimed that he had misunderstood his bail conditions.
5. The Court was not provided with a transcript of the bail release application that was made to King DCJ, or a transcript of his Honour's reasons. We were informed by Mr Brasch of counsel, who appeared in the District Court, that bail was granted in order to allow the respondent to "get his affairs in order". The Court was informed that his Honour made it clear that the sentence that would be imposed would be one of full-time imprisonment and that bail would be refused if the matter was not able to be finalised on 10 April.
6. Mr Brasch informed us that he had submitted to King DCJ that, notwithstanding the sentence that would be imposed, there were a number of reasons why the respondent should have his liberty in the meantime: the respondent was a married man, aged almost 60, who had not previously been imprisoned and he had financial and employment related matters to attend to. An additional reason was that a psychological report was to be sought for the sentence proceedings and being at liberty would facilitate the respondent's attendance upon the psychologist.
7. By the time of the hearing in this Court, the respondent had been at liberty since the jury's verdict for some four weeks. Counsel advanced the following reasons why the Crown's detention application should be refused: the respondent had complied with strict conditions of bail for a significant period of time prior to trial and since; he remained in employment and was hoping to continue working for as long as possible so as to provide for his wife before giving two weeks' notice to his employer; there were matters relating to his superannuation that he needed to attend to; he had a scheduled medical test the following week in relation to his kidneys; and there was only about two weeks remaining until the sentence hearing.
8. We were not persuaded that these matters were sufficient to show cause why the respondent's detention was not justified in circumstances where he has been found guilty of a most serious offence and concedes that he will receive a full-time custodial sentence. The matters relied upon are not out of the ordinary for a person found guilty at trial and facing inevitable incarceration upon sentence. There was no evidence concerning the medical test the respondent was due to undergo the following week and it was not suggested that he had a condition for which Justice Health would be unable to provide appropriate care and treatment (if any is required). In response to a question from the bench, counsel indicated that the respondent would not suffer any financial penalty in relation to giving notice to his employer or in relation to his superannuation.
9. It was upon the respondent's failure to show cause why his detention was not justified that the Crown's detention application was granted and bail was refused.

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