HER HONOUR: Corey George Farrell seeks bail for two offences of shooting with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW). The maximum penalty for the offences is imprisonment for a period of 25 years. He faces two further charges, which I understand to be back-up charges, of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act, an offence also carrying a maximum penalty of imprisonment for 25 years.
A brief synopsis of the Crown case against Mr Farrell is as follows. The victims of the shootings are the boyfriend of Mr Farrell's sister and the boyfriend's father. There had, according to cogent evidence, been a lengthy period of acrimony between the boyfriend and Mr Farrell's sister involving insults and threats levelled by each towards the other including, of particular importance, serious threats by the boyfriend to the girlfriend and her family, including the applicant.
There is no doubt that the boyfriend and his father were shot in April 2014. The father, it seems, was seriously injured. The issue for the trial will be the question of the identity of the shooter. The Crown case is that it was the applicant. That is supported by text messages allegedly sent by the boyfriend to the girlfriend effectively immediately after the shooting identifying the applicant as the shooter. However, when police attended the scene of the shooting, neither victim identified the applicant. The boyfriend has refused to co-operate with police at all in respect of the offences and, indeed, has pleaded guilty to a charge of concealing a serious indictable offence and served a term of imprisonment evidently referable to that offence.
The Crown accordingly relies on a circumstantial case. The status of the text messages in the trial will be important. Otherwise, the circumstantial case rests primarily on the history of acrimony between the two families and evidence about the applicant having bought a car in the days leading up to the offence of which he disposed shortly afterwards. There will be evidence based on the expertise of a person employed by Toyota comparing a car seen leaving the scene (recorded on CCTV footage) with the model of the car acquired by the applicant.
The applicant was arrested on 17 June 2014 and has been in custody on remand in respect of these matters alone since that date.
The application faced the preliminary hurdle that the applicant has previously been refused bail by this Court, by Campbell J on 3 December 2015. The Crown submitted that the hearing of a further application was accordingly precluded by s 74(1) of the Bail Act 2013 (NSW), which provides that a Court that refuses bail is to refuse to hear another release application unless there are grounds for a further application. Section 74(3) relevantly provides that a ground for a further application exists where "circumstances relevant to the grant of bail have changed".
The changed circumstance relied upon by the applicant in the present case is that the date previously fixed for trial of 11 July 2016 has been vacated on the application of the applicant but importantly due to no fault on his part. His trial is now fixed for 5 June 2017. It follows inexorably, having regard to the likely length of the trial, that if bail is refused he will have remained on remand for more than three years by the time the trial is concluded.
The order vacating the 2016 trial date was made on 29 June 2016 by Judge Blackmore. The Crown's contention that s 74 applies in the circumstances was based primarily on new information received since that date that additional trial dates have become available in the District Court particularly including dates in January 2017. That fact and the circumstances surrounding it are plainly relevant to the substantive application. However, in my view, the vacation of the 2016 date is a "circumstance relevant to the grant" which has changed since the previous application was made. On that basis I was satisfied that the hearing of the further application made yesterday was not constrained by s 74 and, indeed, that I was obliged to hear the application.
The application faces a show cause requirement under s 16A of the Bail Act because the offences with which the applicant is charged are serious indictable offences involving the use of a firearm: see s 16B(1)(d)(i).
The application of that test is not without difficulty. In M v R [2015] NSWSC 138, a bail application determined some two weeks after the introduction of the amendments to the Bail Act 2013 (NSW) that introduced the show cause test and the first decision of this Court to consider the content of the test, I said at [9] to [12]:
[9] The Crown in the present case provided detailed and helpful written submissions addressed in part to those questions. The submissions opened with the proposition that a person charged with a show cause offence "would normally or ordinarily be refused bail" and faces a heavy burden to persuade the Court that bail should be granted.
[10] In my view, the application of the Act cannot and should not be generalised in those terms. While the precise content of the show cause requirement is elusive, it is not in my view to be construed as imposing so fundamental an intrusion on the common law principles to which I have referred. The Court should be careful not to construe the Act in such a way as to put a gloss on the terms of the section, which appears to me to require the Court to approach each case on its merits with no presumption as to the likely or proper outcome of the release application.
[11] The scheme of the Act prior to the amendments was to focus on risk in individual cases. That assessment was guided by a list, which was both exhaustive and mandatory, of the matters Court was required to consider in assessing risk. That remains the case after the amendments. In particular, it remains the case that, under Division 2 of Part 3, the approach of the Court falls into a dichotomy. If there is an unacceptable risk, the Court must refuse bail; if there is no unacceptable risk, the Court must grant bail.
[12] There is nothing in Division 1A of the Act (which contains the provisions relating to the show cause requirement) to suggest the imposition of any additional requirement, that is, there is nothing to suggest that in a case where there is no unacceptable risk, the Court could still refuse bail unless the applicant was able to show cause. To construe the Act in any other way would, in my view, subvert the well-established principles of the common law.
The nature of the show cause test was considered shortly after the publication of that decision by the Court of Appeal in DPP (NSW) v Tikomaimaleya [2015] NSWCA 83. After considering my remarks in M v R, the Court said, at [24] to [25]:
[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.
On my reading of the judgment, one possible difference between Tikomaimaleya and the approach I favoured in M v R is that whereas I had concluded that an applicant faces only a persuasive burden and not a strict onus of proof in showing cause, the Court's judgment in Tikomaimaleya might be understood otherwise. The Court said at [25] that the show cause test by its terms requires an accused person "to demonstrate why, on the balance of probabilities, his or her detention is not justified".
As a matter of obedience to the statute, the proposition that the two tests must not be conflated is unexceptionable and one I am bound to accept. I confess, however, that I remain uncertain as to how that two-stage test is to be applied in practice or as a matter of logic in some cases. The remarks of the Court in Tikomaimaleya at [25] (second sentence) may not sit easily with the terms of s 19(3) of the Bail Act. That section provides that the fact that a person has shown cause is "not relevant" to the determination of the unacceptable risk test. In Tikomaimaleya, inverting that proposition, the Court said that determination of the unacceptable risk test is not determinative of the show cause test. I am not certain that I understand why the latter should be so. If a person is assessed to pose no unacceptable risk, an assessment required to be undertaken having regard to any bail conditions that can be reasonably be imposed to address any bail concern (as a mandatory consideration), it is difficult to understand how a person's detention could be justified.
Yet that is exactly the way in which the Act operated in the case of Mr Farrell's first application in this court when, in December 2015, Campbell J refused bail.
His Honour set out a detailed and careful summary of the Crown case. I would respectfully adopt that summary. The only new evidence so far as I can discern from reading the judgment of Campbell J and the material that has been provided to me on the present application is that I think the evidence of the Toyota expert might have been obtained or served since Campbell J considered the matter. His Honour made reference to that as prospective evidence. The brief now includes evidence from a person who has considered the CCTV footage of the car that left the scene and formed the opinion that it is the same make and model as was purchased by the applicant before the alleged offence.
Campbell J assessed the strength of the Crown case to be "not overwhelming" but "not pathetically weak". His Honour noted, and I would respectfully agree, that it is a case which has some strong points and that as a circumstantial case its strength will very much depend on how the evidence comes out at the trial and what the jury makes of it.
His Honour recited evidence given by members of the applicant's family. That evidence was not repeated in the application before me yesterday. However, having regard to the terms of s 31 of the Bail Act, I do not think it is inappropriate for me to have regard to his Honour's assessment of the family as one which would provide strong support to the applicant. His Honour said that the evidence "bespeaks very strong community ties".
Campbell J concluded that there is a concern that the applicant would fail to appear if released on bail owing to the seriousness of the charges but was satisfied that concern could be managed by the imposition of conditions.
His Honour also considered that there was a risk of the applicant's committing serious offences if released on bail but noted that the last offences on his record were committed some 11 years ago, when he was aged 19. In the present application, there are a number of statements in the Crown material suggesting that the applicant has a lengthy criminal record. In fact, a careful analysis of his record reveals that, while he has had subsequent engagement with the criminal justice system, he has only two serious convictions (which I accept are very serious) arising from offences committed when he was 18 and 19. He has no conviction for any offence committed since that age - he is now 30. To that consideration may be added the submission put on his behalf that the period during which he has committed no offences includes a period during which he was under surveillance by police for a year prior to his arrest for the present matters.
Justice Campbell noted that the applicant has no motive to endanger the victims in the present case in circumstances where neither has identified him as the offender. His Honour concluded "except for the show cause requirements, I would be satisfied that the bail concerns in this matter can be adequately addressed by the imposition of stringent conditions". According to the approach I took in M v R I would, with respect, have concluded that cause had been shown by that very conclusion, that is, the conclusion that there was, on his Honour's analysis, no unacceptable risk within the meaning of the Bail Act: cf ss 19 and 20 of the Act. I think I must accept that Tikomaimaleya mandates a different approach by which I am bound. Applying what the Court of Appeal said in Tikomaimaleya at [25], the applicant in the present application must demonstrate on the balance of probabilities and by reference to some additional consideration that his detention is not justified.
Turning to that assessment, I would first record that, having considered overnight the material provided by the Crown and the applicant, I have independently reached the same conclusions as were reached by Campbell J concerning the assessment of bail concerns. I do think there is a concern, having regard to the very serious charges he faces, that the applicant might be tempted to flee the jurisdiction but I would share Justice Campbell's conclusion that that is a concern that can adequately be addressed by the imposition of a surety condition.
As to the risk that the applicant would commit a serious offence if released on bail, I must weigh the fact that he has not committed any offence since 2005 against additional material provided to the Court by police, who strongly oppose bail in this case. I have given anxious consideration to the contents of a letter dated 6 September 2016 by Detective Senior Constable Murray, who I apprehend is the officer in charge of the investigation. In considering that material, I accept without equivocation the importance of the Court paying due regard to the greater experience of police in such matters. The two principal issues addressed in the letter are as follows: First, the Detective provides information which, to a degree, goes behind the applicant's recent acquittal for very serious offences, suggesting that he may have been acquitted as a result of having manipulated the forensic process in those proceedings. No charges have been laid arising from those suspicions. Whilst accepting that, in accordance with s 31 of the Bail Act, the Court can take into account any information it considers credible or trustworthy, and paying due respect to the views of Detective Murray, I do not feel comfortable resting on material in the form in which it has been provided to the Court to go behind the applicant's acquittal of those matters. As a matter of legal doctrine I think I should approach this assessment on the basis that the applicant is not guilty of those offences (for which, incidentally, he spent a lengthy period of time on remand).
Secondly, the Detective refers to risk to the victims. To a degree that assessment on the Detective's part is informed by his knowledge that the applicant has many criminal associations. There are also references to surveillance in that context. Against that consideration, I have had regard to the fact that has been repeatedly adverted to in these proceedings that neither victim has purported to identify the applicant. There is simply no logical or practical reason why in those circumstances he would wish to do harm to either of them. That would surely be madness on his part.
Returning to the show cause test then, I think the critical consideration is the vacation of the trial date. In R v Cain (No 1) [2001] NSWSC 116, Sperling J said "the prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights".
I respectfully agree. The Court must be astute to ensure that those concepts are not eroded by progressive numbness to delay or its normalisation due to the jading impact of straining against the stretched resources of the criminal justice system.
The delay of three years in the present case is in part but not wholly due to the strains on the Court lists. The evidence also suggests that constraints on the resources of Legal Aid were a contributing factor at the point before the application to vacate the 2016 date. I accept, as submitted by the Crown, that the applicant's choice to continue to retain the same barrister is also a relevant factor. I think the Court should approach that issue on the basis that it is an anxious choice for an accused person, particularly a person facing such serious charges. There was in this case a two-day committal hearing at which submissions were put that the matter should not be committed for trial. Those tasks were undertaken by the barrister the applicant wishes to retain for his trial. That is a factor which is in both the applicant's interests and the public interest. To have another barrister briefed at this stage would duplicate the scarce resources available to the Legal Aid Commission.
The simple fact is that three years is too long a period, absent unacceptable risk, for a person who has not been convicted of any offence to be imprisoned awaiting trial. In the present case two judges of this court, that is Campbell J and myself, have concluded after a careful assessment of the relevant bail concerns that they can be adequately addressed by the imposition of strict conditions.
For those reasons I am satisfied that the applicant has shown cause. As already indicated, I am also satisfied that the bail concerns I have identified can be met by the imposition of strict bail conditions. It follows in accordance with the scheme of the Act that I must grant bail.
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Decision last updated: 13 September 2016