Court of Criminal Appeal
Supreme Court
New South Wales
[2]
Judgment
The Court:
1 On 30 July 2015, the Court refused a detention application by the Acting Director of Public Prosecutions (NSW) pursuant to s 50 of the Bail Act 2013 (NSW) ("the Act") in respect of John Michael McCormack. The Court also varied the respondent's conditional bail by imposing two additional conditions. What follows are the reasons for the orders made.
2 The respondent was arrested and refused bail on 18 May 2015. He is charged with the following offences:
1. Handle/use firearm under the influence of alcohol (s 64(1) of the Firearms Act 1996 (NSW)).
2. Common assault (s 61 of the Crimes Act 1900 (NSW)).
3. Possess loaded firearm, endanger life, non-public place (s 93G(1)(a)(ii) of the Crimes Act).
Counts 1 and 3 are "show cause" offences for the purpose of the Act by virtue of being either "a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 (charge iii) or under the Firearms Act 1996 (charge i) that involves the use of a firearm": s 16B(1)(d)(i) of the Act. The respondent must show cause why his detention is not justified: s 16A of the Act. The Court must refuse bail if it is not satisfied, on the balance of probabilities, that cause has been shown: s 32(1) of the Act.
The maximum penalty for an offence contrary to s 64(1) of the Firearms Act is imprisonment for five years. The maximum penalty for an offence contrary to s 93G(1)(a)(ii) of the Crimes Act is imprisonment for 10 years. However, both offences fall within Table 2 of the Criminal Procedure Act 1986 (NSW) and are dealt with in a Local Court unless an election is made for trial on indictment.
The offence of common assault contrary to s 61 of the Crimes Act is punishable by imprisonment for two years and is also a Table 2 offence.
The Court was informed that the prosecution had decided not to proceed on indictment and the charges were to be dealt with summarily in the Local Court.
Accordingly, the maximum penalty that may be imposed for each offence is two years imprisonment. The Local Court is limited by s 58(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to consecutive sentences of not more than five years.
A release application was heard in the Supreme Court on 15 July 2015 by McCallum J. Her Honour granted the respondent bail on the following conditions:
"a) To live at 44 Walgett St, Pilliga NSW 2388. The applicant is to live with his
daughter, Mandy McCormack at this address.
Not to enter any premises in which alcohol is sold.
The applicant is to appear at Wee Waa Local Court on 30 July 2015 and thereafter on any such date as required and at such other time and place as may be directed.
The applicant is not to drink alcohol.
The applicant is not to have possession of or use any firearm whatsoever whether licensed or registered.
To comply with the following enforcement condition:
The applicant is to undertake any testing at the direction of any police officer to confirm compliance with the alcohol abstention condition. Such direction may only be given by a police officer who believes on reasonable grounds that the applicant may have consumed drugs/alcohol in breach of the bail acknowledgement. Such testing may only be non-invasive and carried out with respect to the applicant's privacy."
The application is to be determined by this Court afresh, that is, it is not an appeal from, or review of, the decision of her Honour: s 67(1)(e) of the Act; Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 at [4].
The alleged offences
The facts of the alleged offences provided by the Crown are as follows:
The Old Bradley's Saw Mill is a collection of three residences on an isolated property about two kilometres south of the township of Gwabegar.
1. The respondent lives in the most southern residence;
2. a neighbour Lynn lives in the centre residence with her children and her partner Luke; and
3. the alleged victim, Michael Campbell, lives in the northern residence.
The respondent and the alleged victim have known each other for about 20 years and have been neighbours for the past 10 years. They both have a number of dogs.
Over numerous weeks before the alleged offence, there have been disputes between both men involving their dogs, either attacking or being attacked by their respective animals.
At about 5:45 pm on 18 May 2015, the alleged victim and his neighbour's children, with Luke nearby, were in his yard trying to round up his cattle dog.
The respondent approached the fence armed with a rifle. Luke then called out, "No John. Watch Out." The alleged victim looked up to see the respondent three metres away standing on the other side of the fence.
The respondent appeared to be highly intoxicated and was unsteady on his feet. He said "Threaten to shoot my dogs, I heard you. I'll shoot you and your dogs." The alleged victim saw that the respondent was armed with a rifle. He saw the respondent load it with a cartridge, close the bolt, raise it to eye level and take aim directly at his head.
Luke approached the respondent, disarmed him and placed the rifle on top of a nearby dog cage. The respondent then walked up to the alleged victim, grabbed him by the front of his shirt and raised his fist. In fear of being further assaulted, the alleged victim started punching the respondent a number of times to the head, which caused the respondent to fall to the ground.
The alleged victim's partner, Tammy, arrived at the scene where the alleged victim stated, "He just tried to shoot me." Tammy located the rifle and secured it in her vehicle. She told the respondent that she was taking the rifle to the police station. The respondent got up from the ground and went home.
Police inspected the firearm and found it to be a Winchester .22 calibre bolt action repeating rifle, which contained three .22 calibre rounds in the magazine. The rifle was registered to a person other than the respondent.
The respondent was arrested at his home by police and conveyed to Moree Police Station. He declined to be interviewed saying, "I got the rifle and I done wrong. That's all I'm saying." Furthermore, when police accessed the firearm data system, they found that the respondent did not hold a current firearm licence.
Argument
The Crown submitted that the respondent is charged with a serious firearm offence in which he, whilst intoxicated and in the context of an ongoing neighbourhood dispute, stood close to the alleged victim, threatened to shoot him and his dogs, loaded a rifle and aimed at the alleged victim's face. The Crown contended that this is a strong Crown case and if convicted the respondent faces a custodial penalty. The respondent's criminal history, it was said, demonstrated that his alcohol use was related to his prior offending as his record consisted of drink driving offences. The Crown argued that the respondent has not shown cause why his detention was not justified.
In the event that the respondent was able to show cause, the Crown argued that there were unacceptable risk factors, which terms attaching to a grant of bail could not overcome, being a real risk of non-appearance, the commission of a serious offence and endangering the safety of the victim, witnesses and the community.
The respondent referred to each of the charges being Table 2 offences and the decision taken by the prosecution to decline to make an election to proceed on indictment. The respondent argued that, in those circumstances, the Crown could not contend that the s 93G offence, which has a maximum penalty of 10 years imprisonment, falls into the category of a serious example of that type of offence. Another matter was that the safety feature of the rifle was in fact off when it was received by the police and a further step in the use of the rifle would have to be taken before it could have been fired. There was a real question, the respondent said, as to whether all of the essential elements of the s 93 charge could be established.
The respondent referred to the length of time he might spend in custody if bail was refused. Wee Waa Local Court sits once a month and the prosecution brief had not been served in its entirety. It was uncertain when his case might be heard. The respondent referred to his mature age of 65 years, that he did not have a history of violence and to his back problems. The respondent contended that as the charges were being heard in the Local Court, it was by no means certain that he would be sentenced to full time imprisonment. The respondent pointed out that he had complied with his bail conditions.
The Court was referred by the respondent, to Judicial Commission sentencing statistics which demonstrated that 95 per cent of offenders charged with common assault and 66 per cent of offenders charged with an offence contrary to s 93G(1)(a) of the Crimes Act, received a non-custodial sentence in the Local Court. No sentencing statistics are available for the offence contrary to s 64(1) of the Firearms Act.
Matters of evidence
In a letter dated 14 July 2015, Senior Constable Kenneth Anderson strongly opposed bail. The police officer expressed the opinion that if the respondent was granted bail back to the Gwabegar property, which was isolated, he would have little or no supervision, would continue to consume intoxicating liquor and commit further offences. The police officer emphasised that the respondent, victim and witnesses all reside on the same property, that the cottages are close to each other and are easy to access. Taking into account the seriousness of the offences, the protection and welfare of the victim and witnesses necessitated bail being refused.
The respondent's criminal history reveals three drink driving offences: high range PCA (1991), middle range PCA (2007) and (2011). A charge of contravening an apprehended domestic violence order was dismissed in 1998 under s 556A of the Crimes Act.
An affidavit of the respondent was tendered. He is 65 years old. For the last eight years, he lived at Gwabegar where he worked as a causal farmhand. Since being granted bail, he has not returned to Gwabegar, has no need or intention to do so, and lives with his daughter Mandy McCormack in Pilliga. There are no guns at the premises where he lives.
The respondent had worked in the construction industry for 40 years until he retired in 2012. He suffers serious back pain and discomfort from crushed and impacted vertebrae. He takes endone, for severe pain.
The respondent states that he drank three or four beers each afternoon or evening until his arrest. Since being granted bail, he had not consumed alcohol, nor had he entered licensed premises. He has managed to abstain from drinking without difficulty.
The respondent referred to his time in custody of almost two months. It was his first time in custody and he was shocked by the experience. The respondent described being in great discomfort in custody caused by his back pain and not being provided with endone, but panadol osteo, a much milder pain killer. Since being granted bail, he has complied with all of his bail conditions.
The Court accepted that Ms McCormack, the respondent's daughter, would testify that her father had been complying with his bail conditions, that there was neither alcohol nor weapons at her home, he had not been drinking and his back pain had increased whilst in custody.
In a medical certificate, Dr Paulo Barac referred to the respondent's long standing lower back degenerative spine condition, which was fairly stable on analgesic treatment until he went into custody. Dr Barac found the respondent's lower back pain had worsened during his detention. He had recommenced the respondent on analgesics with a relative reduction in pain level.
Decision
As there are "show cause" offences, the present application is to be determined by a two-step process. The first step obliges the respondent to show why his detention is not justified and, if it is shown, the Court is required to consider the "unacceptable risk" test in Div 2 of Pt 3 of the Act: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.
In Tikomaimaleya, the Court of Criminal Appeal (Beazley P, R A Hulme and Adamson JJ) said at [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."
Although the Court agrees that the Crown case is strong and the charges are serious, the Court is satisfied that the respondent has demonstrated that his detention was not justified. The prosecution has decided not to proceed with the charges on indictment and they will be heard in the Local Court. It is, by no means certain that the respondent will be sentenced to full time custody. He is 65 years of age, with no prior history of violent offending, has issues with his health and has spent about two months in custody, bail refused.
Furthermore, the Local Court at Wee Waa sits infrequently, the prosecution brief has not been fully served and the charges may not be heard until towards the end of the year. Should the Director's application be granted and the sentencing Magistrate consider that there is no alternative to a sentence of full time imprisonment; his pre-sentence custody may well exceed any custodial sentence.
In these unusual circumstances, the respondent has shown cause why his detention is not justified.
The Court emphasises that these observations do not fetter in any way, the sentencing discretion of the judicial officer who may ultimately sentence the respondent.
The next step is to determine whether there are bail concerns that arise if the respondent is released from custody and whether they are such that there is an unacceptable risk. The Crown maintains that the Court would have a real concern that the respondent will fail to appear, or commit a serious offence, or endanger the safety of the victim, witnesses and the community.
The Court accepts that there is a risk of the respondent not appearing in Court but considers that there is little chance of this happening. The respondent went home after the alleged offending and made no attempt to flee or hide. He has never previously failed to appear. Moreover, he was served with the detention application on 21 July 2015, but appeared nine days later at the Wee Waa Local Court and in this Court (by way of audio visual link).
The further risks identified by the Crown are that the respondent, if released from custody, will commit a serious offence or endanger the safety of the victim, individuals or the community. These risks may be conveniently dealt with together. The respondent does not have a history of violence, has abstained from alcohol since being granted bail and has on-going serious back problems. He has made no attempt to contact the victim or witnesses and lives with his daughter at Pilliga, which is some 40 kilometres from Gwabegar. Although 40 kilometres is not a lengthy distance in country New South Wales, he appears to have learnt a salutary lesson from his time in custody.
The Court was satisfied that there are no unacceptable risks if the bail granted by McCallum J is continued with two additional conditions being:
1. The respondent is not to go within 10 kilometres of the Old Bradley's Saw Mill at Gwabegar.
2. The respondent is not to approach or seek to contact in any way any Crown witnesses, except through his legal advisors.
The Acting Director's detention application is refused.
[3]
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Decision last updated: 19 August 2015