R v Mel

Judgment

1. HIS HONOUR: Lyheng Mario Mel applies for bail. He was arrested on 4 May 2017 and charged with several offences, including one count of conceal serious indictable offence, two counts of possess prohibited pistol without authorisation and one count of participate in a criminal group. Mr Mel has been in custody bail refused since the date of his arrest. His trial is scheduled to commence in the Sydney District Court on 29 January 2019.
2. Mr Mel made a bail application on 15 September 2017. That application was refused by Bellew J. As a result, Mr Mel's application is confronted by the provisions in s 74 of the Bail Act 2013. That provision relevantly provides as follows: "74 Multiple release or detention applications to same court not permitted. (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. … (3) For the purposes of this section, the grounds for a further release application are: (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence."
3. Section 74 was recently considered by Campbell J in R v Fallon (a pseudonym) [2017] NSWSC 1796. His Honour said at [13]-[15]: "[13] The purpose of s 74 Bail Act is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. It's relevant to bear this legislative purpose in mind when one considers that what is being proposed is a third application to this Court, an eighth application overall (if one includes the detention application). This history of repeated release applications is, I think, relevant to my evaluation of the case. [14] Section 74 needs to be interpreted in its context in the Act, and in particular in Part 7 of the Act. Section 71 requires bail applications to be dealt with as soon as reasonably practicable; s 72 makes it mandatory for a court to entertain any release or variation application made by an accused person on the first appearance in substantive proceedings for the offence; s 73 empowers a court to refuse to hear a bail application on other occasions, if satisfied the application is frivolous, vexatious, without substance, or has no reasonable prospects of success; and s 75 provides that all bail applications, including subsequent applications, are to be dealt with as a hearing de novo. Sections 73 and 74, in my view, work together to emphasise the restraint with which a court is to approach subsequent applications made to that court. [15] It is also well to emphasise the word 'material' where it appears in the expression 'material information relevant to the grant of bail' in s 74(3)(b) and also in s 74(4)(a), for that matter. The additional information sought to be presented will be material if the applicant satisfies the court that the outcome of the previous release application might have been different had the additional information been presented then: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353, by Mason CJ. This is an objective legal standard involving a mixed question of fact and law. It requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result."