New South Wales Police Force v L Davis

In accordance with the requirements of the Criminal Procedure Act 1986 (NSW), she was brought before the Local Court sitting at Port Macquarie today before her Honour Judge Viney and dealt with under s 312 of the Criminal Procedure Act*.* Her Honour refused bail and committed Ms Davis to a place of security, as it is put in the legislation, under s 312(1)(a). Her Honour also ordered that Ms Davis be brought before me as the presiding judge in the Supreme Court conducting the trial out of which the bench warrant was issued.

Section 312(2A) has the effect that the Bail Act 2013 (NSW) (“the Bail Act”) applies to the applicant as if she were a person accused of an offence and the proceedings before the Court out of which the bench warrant was issued were proceedings for that offence. Mr Costello, Crown Prosecutor, has drawn the analogy with the offence of a failure to appear under s 79 of the Bail Act, which carries a penalty not exceeding three years' imprisonment and, with respect, I accept that is an appropriate analogy for me to adopt for the purpose of considering the bail application. Mr Tatarov, solicitor, of the Aboriginal Legal Service, who has appeared for the applicant on short notice, did not take issue with the appropriateness of that analogy. That offence, that is to say, the analogous offence, is not a show-cause offence for the purpose of s 16A of the Bail Act which means I am required to deal with this bail application by reference to the unacceptable risk test.

Mr Costello pointed to the bail concern that, if released, the applicant would not appear when required in accordance with the bail acknowledgment that she would be required to give as a condition of a grant of bail.

Mr Tatarov, with respect, did not join issue with the submission that the risk of flight was a real one. However, he pointed to a number of factors which he submitted ameliorated the risk of non-appearance. They included the consideration that bail would be required for a short time only, at least initially, given that it would be proposed to call the applicant to give evidence tomorrow morning. I am told that she is now prepared to give sworn testimony in the trial.

Bail may, of course, continue beyond tomorrow because I would not propose to deal with Ms Davis for failing to appear in accordance with the subpoena, which, at the very least, leaving to one side the analogy I have adopted for the purposes of this application, is, in my judgment, a contempt in the face of the Court. That is a matter with which:

Ms Davis would have to be charged; and

She would have to be given the opportunity of answering that charge in a proper way which could not be dealt with until after the completion of this trial.

The second factor which Mr Tatarov relied upon was the consideration that the applicant has two options in terms of a bail residence, at least overnight, one being with Mr Gregory Griffin at an address in South Kempsey. Unfortunately, Mr Tatarov has not been able to make contact with Mr Griffin today. It is the Crown position, if I may put it that way, that Mr Griffin's address is an address with which the applicant is associated. He has not co-operated with police when they have attended to attempt to serve the subpoena and on occasions, on the evidence I accepted for the purpose of the bench warrant, the applicant, when aware of the approach of police made good her escape from those premises to avoid service of the subpoena.

The alternative address is at Burnt Bridge, which is just outside Kempsey, residing with her sister whom Mr Tatarov informs me is prepared to have the applicant reside there and to conduct her from the court to that address and to return her to court in the morning. There is a home detention condition proposed as well: unless in the company of either Mr Griffin or her sister. On the limited information I have, I am not sure that Mr Griffin would be an appropriate person to be supervising the home detention condition.

My impression of the evidence that was led before me for the bench warrant which has been retendered on the bail application is that the applicant has made heroic attempts to avoid being served with a subpoena. She also has a history of non-appearance at court when required. From my perusal of the bail report which has been tendered as part of the bail application by the Crown, some of those non-appearances relate to the committal proceedings when this matter was before the Local Court. She failed to appear under a subpoena at the first committal hearing on a date in February 2025. When she was apprehended under a bench warrant and granted bail, she failed to honour her bail acknowledgement in respect of the adjourned committal proceedings in July 2025.

To state the obvious, this is a murder trial. Leaving aside treason, there is no crime more serious on the criminal calendar. It is apparent to me from the evidence I have heard so far in this trial, which I am conducting without a jury, having made a judge alone order, that the applicant was present when the deceased, Mr David Vale, was fatally stabbed on the night of 1 March 2023. It seems highly likely that she is an eyewitness to the events. It would be most unfortunate if her evidence was lost to the Court, given the seriousness of the charge that the accused faces.

The applicant was charged in relation to post-offending events, which charge eventually was reduced to one of “hinder” to which she pleaded and was dealt with by the imposition of an intensive correction order.

I am satisfied that given the history I have recounted, the magnitude of the risk, and the potential importance of her evidence in this case that the risk of her non-appearance is unacceptable. Indeed, I am satisfied that the Crown have discharged the onus of proving on the balance of probabilities that the risk of non-appearance, even only overnight, is unacceptable.

My order will be that bail is refused. Having said that, on the assumption that Ms Davis honours what she has told the court through her solicitor, that is to say that she is prepared to make an affirmation or to take an oath to give evidence in the proceedings, and in fact does give evidence in the proceedings, I grant leave for a further application for bail to be made at the completion of her evidence.

My order is bail is refused.