Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Legal Aid Commission of New South Wales(Respondent)
File Number(s): 2015/204729
[2]
Judgment - Ex Tempore
HER HONOUR: 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.
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.
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 In that context, it should be acknowledged that more than 50 charges have been withdrawn relating to the same series.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.
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.
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.
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.
All of the grants of bail, both in the Local Court and more recently in the District Court, have included a residential condition that the respondent reside at an address in Harden. It will be necessary to return to the status of that condition.
The matters with which the respondent is charged include 18 charges which carry a show cause requirement under s 16A of the Bail Act 2013 (NSW). Of those, eight are among the charges to which the respondent has pleaded guilty. The Bail Act provides that, in respect of a show cause offence, a bail authority making a bail decision must refuse bail unless the accused person shows cause why his or her detention is not justified. By reason of the combination of s 50 and s 8 of the Act, that test has application in support of a determination following a detention application.
The interrelation between the show cause requirement and the second test (which applies in respect of all bail applications), the unacceptable risk test in Div 2 of Pt 3 of the Act, has been a matter of considerable jurisprudence in the relatively short period since the introduction of the present form of the Bail Act. In R v M [2015] NSWSC 158, I expressed the view that the apparent simplicity of the two-stage approach mandated by the Act was illusory. I said that I considered it was difficult to conceive how an applicant could show cause without addressing any relevant bail concern.
The Court of Appeal subsequently considered those remarks in the matter of R v Tikomaimaleya [2015] NSWCA 83. In that case, the Court accepted that there may well be matters relevant to the unacceptable risk test which would also be relevant to the show cause test, saying (at [24]):
"…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 in his or her favour as well."
The Court continued at [25] of the judgment to emphasise, however, that the two tests must not be conflated, saying:
"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 Court noted that the justification or otherwise of detention is to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy, not just the mandatory and exhaustive list of considerations in s 18.
In the present case, however, the matters put forward on behalf of the respondent were, I think, all matters which the Court is required to take into account in the context of the risk assessment test in s 18. The determination of the application is accordingly very much informed by the Court's evaluation of any bail concerns of the kind listed in s 17 of the Act.
The prosecutor asserted that there is a risk of the respondent's failing to appear and a risk of committing a serious offence if at liberty. As to a risk of failure to appear, it may be accepted that, as the sheer number of charges against the respondent increases, there may be an increasing motivation for him to flee. However, the history of compliance with bail conditions he has demonstrated over a period of some three years would, I think, give the Court confidence that that is not the critical consideration in the present application. Plainly, it is necessary for the Court more critically to consider the risk that the respondent will commit a serious offence if he remains at liberty.
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.
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.
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.
The statement of facts in respect of the charges most recently pressed recites something of the respondent's history as a Catholic priest and the Church's investigation of allegations against him. In 1992, following "numerous complaints" against the respondent, an internal investigation was conducted. During a meeting of the Australian Catholic Bishops Special Issues Resource Committee, the respondent admitted that he had sexually interfered with five boys between 1982 and 1984 while he was an assistant priest in Moree. The words he is alleged to have said during that meeting were that he "sucked off their dicks". The respondent is alleged to have repeated those admissions when being cross-examined as a witness in a case in 2004, at that point expressing deep regret for what had happened and acknowledging that it was wrong and sinful (while evidently taking a technical point as to whether it amounted to a breach of his promise of celibacy which relates to not getting married).
In April 1992, a psychologist (evidently retained by the Catholic Church to assess the respondent) informed one of the bishops investigating the matters that the respondent needed to be kept away from children "where he is a risk". The psychologist said that prepubescent children were in danger where the respondent was. Shortly afterwards, the psychologist informed the bishop that the respondent "would be an ongoing risk even when independent of his priestly status." The psychologist reported that "the proclivity of [the respondent] to offend was not reducing as usual with age" and that he was "at a high risk of recidivism."
Ms Hutchinson, who appears for the respondent, urged me to consider that material with some caution, not only having regard to the obvious fact that those opinions were expressed over 20 years ago but also noting that the psychologist had been retained by the Church in the context of an internal investigation. Ms Hutchinson noted, in that context, the possibility that he may not have provided an independent assessment of the risk of recidivism. The simple fact is that that is the only evidence of that kind before me. There is no evidence before me of the respondent having undertaken any form of treatment or counselling at any point since 1992. He is now aged 62 years, by my reckoning, which I would regard to be an age when a man may well still be sexually active.
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.
Ms Hutchinson put forward the compelling need for the respondent to be free to prepare for his trial in January. That is always an important consideration in favour of the person seeking bail when weighing the relevant factors informing any bail concerns.
Finally, I would refer to subsection (2) of s 18, which gives the Court some measure of the Parliament's view as to the relative importance to be placed on particular kinds of serious offending. The first matter recited in that section for consideration is whether the offence under consideration is of a sexual or violent nature. Many of the charges alleged against the respondent are exclusively of a sexual nature but there is some hint of violence in some of the matters, or at least the violence inherent in the kind of offending under consideration. Some of the allegations of sexual assault include allegations of painful anal penetration of altar boys, plainly in a vulnerable position in respect of the respondent. Some of the allegations and some of the admitted offences reveal a proclivity to manipulative and sometimes cruel conduct carried out in a cynical and brazen fashion.
Some of the offences were committed in the presence of other people but unknown to them, in such a fashion as to place a vulnerable child in the difficult position of being unable to resist the respondent's acts by reason of embarrassment and the very brazenness of the conduct.
As already indicated, there is some material to indicate a degree of remorse on behalf of the respondent for some of his offending, not only in the cross-examination to which I have referred but in some of the telephone intercept material in which he appears to have expressed regret in respect of his conduct towards his nieces. But, as I have already said, there is no evidence of his having had any counselling or treatment in respect of what appears to be a plainly established proclivity to sexual offending with young persons.
I return then to the question of the problem with the residential condition. The respondent was residing with Mr Patrick Kenna, himself a retired Catholic priest. The respondent is not a retired Catholic priest; he was laicised on his own application in 2005. Mr Kenna has been the person with whom the respondent has been residing in accordance with the residential condition for most of the period of three years of his bail. For, I think, all of that time police (or at least some police) have known of allegations of inappropriate conduct by Mr Kenna also in the form of historical allegations of misconduct whilst he was a priest.
For reasons which did not emerge at the hearing before me, it was only yesterday that the Crown raised that as a concern in respect of the respondent. The issue having been raised, the respondent promptly acknowledged that it would no longer be appropriate for him to reside with Mr Kenna. In order to afford procedural fairness to the respondent, I adjourned yesterday's application to today to enable him to put material before the Court as to a residential condition which might be more appropriate.
The affidavit read today in response to that opportunity reveals that the respondent has the option of residing temporarily with a female friend in Tamworth. She is an 81 year old woman. She has stated that she would be happy for the respondent to live with her for up to three months but would want other accommodation to be sorted out as quickly as possible. A more permanent option was proposed of the respondent's living in rental premises. That arrangement would see him living alone.
The options available to him now to a degree inform the mandatory consideration under s 18(1)(a) of the Bail Act, which requires the Court to consider the accused person's background, circumstances and community ties. It would appear there is no person with whom the respondent can reside who would provide anything in the nature of the kind of structured moral and social support which often gives the Court comfort that a person who has offended in the past will not offend in the future.
Primarily, I am moved by the respondent's admitted offending to consider that he is to be regarded as a person at some risk of reoffending, notwithstanding the age of the offences charged and notwithstanding his present age. As already noted, the nature of the offending (recited in detail in the three factual documents to which I have referred) reveals a man with a proclivity to what I would regard as manipulative and in some ways sexually violent offending.
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.
[3]
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Decision last updated: 14 August 2018