R v Voll

Medium Neutral Citation: R v Voll [2025] NSWSC 846

Hearing dates: 22 July 2025

Date of orders: 22 July 2025

Decision date: 22 July 2025

Jurisdiction: Common Law - Criminal

Before: Dhanji J

Decision: Application for bail granted with conditions.

Catchwords: BAIL – release application – detain for advantage – aggravated sexual assault – sexual assault in the alternative – show cause test – unacceptable risk test – Crown case very strong – unrelated charge of sexual touching – delay – recent birth of applicant’s child – residence away from where offences allegedly committed – no prior criminal record – cause shown – bail granted with conditions
BAIL – evidence – where almost entirety of alleged offences captured by closed circuit television (CCTV) – where Crown proposed to tender and play CCTV – exposure to footage of serious crimes potentially damaging for persons engaged within court and victims – significant responsibility of courts to take care in determining necessity for viewing such footage – assessment of necessity dependent on nature of matter and issues footage said to address – bail application not a “mini trial” – issues dealt with based upon Crown Case Statement alone – tender of CCTV rejected

Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 17, 19, 49
Crimes Act 1900 (NSW), ss 61I, 61J

Cases Cited: Barr (a Pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47

Category: Principal judgment

Parties: Jonathon Paul Voll (Applicant)
Rex (Respondent)

Representation: Solicitors:
Elie Rahme & Associates Pty Ltd (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2025/226365

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Jonathon Paul Voll has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act). The applicant is presently 44 years of age. He has been in custody since his arrest on 3 September 2024.

2. The applicant faces a number of extremely serious charges, they being one count of detain for advantage, commonly referred to as kidnapping; 12 counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 (NSW); and, on my count, 11 offences charged against s 61I of the Crimes Act of sexual intercourse without consent, they being charged in the alternative to the primary counts against s 61J. The circumstance of aggravation relied on for the purposes of s 61J is that the complainant was under the authority of the applicant.

3. Included in the material tendered on the application by the prosecution is the Crown Case Statement. That is a document that runs to some 40 pages, over which it sets out the circumstances of the alleged offences. I do not propose to deal with that material in any detail. It suffices for this application to observe that the relevant events are alleged to have occurred between 11.30pm on 2 September 2024 and about 1.00am on 3 September 2024.

4. The applicant is the part owner of a number of entertainment venues in the Nelson Bay area. The complainant in each of the matters was employed by the business. In addition to the complainant working within the business, it appears that there was a sexual relationship between the applicant and the complainant which had been ongoing for at least some time, as at the time of the relevant events.

5. On 2 September 2024, there was an event relating to the announcement of awards for businesses operating in the local area. At least one of the applicant’s businesses was a contender for such an award. It seems to have been the opportunity for a night out attended by the applicant, the complainant, and various others associated with the businesses.

6. That night involved the consumption of a significant quantity of alcohol, at least by the complainant and to a degree by the applicant. As events unfolded, various others left, leaving the applicant and the complainant alone in one of the venues operated by the applicant’s business. It is alleged that the complainant was detained at that location where the various sexual assaults were committed against her.

7. The case is somewhat unusual in that almost the entirety of the relevant events were captured by closed circuit television (CCTV) operating in the venue. The complainant herself has little memory of the events, with the result that the case is almost exclusively reliant on the CCTV. I do not suggest that that reliance is a weakness in the prosecution case. Indeed, it is to the contrary.

8. On this bail application, following the receipt of the applicant’s submissions, the prosecution indicated that it was proposed to tender and have played the CCTV footage. That footage runs for the duration of the alleged offending, in total approximately two hours. The disk containing the recordings was provided to the Court in advance. The purpose of the tender was to answer the applicant’s submission that the prosecution case suffers deficiencies affecting the ability of the prosecution to prove the offences beyond reasonable doubt.

9. The Crown Case Statement is effectively a detailed commentary of what can be seen in the CCTV footage. It was not suggested that that commentary was inaccurate or misrepresented in any way what can be seen. Given the detailed commentary provided by the Crown Case Statement, a question was raised by me as to whether on this application I should, as requested, watch the recording.

10. The availability of recordings of the commission of serious offences has increased with the increased prevalence of recording devices in our community. In some circumstances, it will be necessary for judges to watch footage of crimes being committed in order to properly consider the matter before the Court. Doing so potentially affects not just the judge but also various other persons engaged within the court system such as associates, tipstaves, court officers, monitors, and potentially others.

11. Given this, it may be appropriate to pause before acceding to a request to view such footage. While the exposure of those within the criminal justice system to recordings of serious crimes is perhaps in this current age inevitable, it should not be assumed that such exposure is not damaging. Further, victims or complainants may suffer additional trauma by the viewing of their experience by what are to them, complete strangers. These circumstances carry with them a significant responsibility to take care in determining any necessity for the viewing of such material. Whether it is indeed necessary to view such material will be dependent on the nature of the matter before the Court and the particular issues the footage is said to address.

12. The present context is a bail application. It has been said many times that such an application is not a “mini trial”. It is not for me in a case such as the present to view the footage and make a presumptive finding of guilt, with a resultant refusal of bail based on a conclusion that the applicant should commence the inevitable sentence based on that presumptive finding.

13. The issue in the present case is whether, as the applicant submitted, the prosecution case suffers from deficiencies or is otherwise not strong based on the arguments put forward by the applicant. Those arguments can, in my view, be dealt with based upon the material set out in the Crown Case Statement.

14. In this regard, the applicant made a number of submissions. It was contended that the nature of the sexual relationship is relevant, at least in providing context. I can accept that the nature of the relationship may have some relevance but whatever its relevance, it cannot impact the entitlement of the complainant to consent or not consent to sexual intercourse on particular occasions.

15. In the context of what is contained in the Crown Case Statement, and based on the material before me on this application, I do not see anything in the nature of the pre-existing relationship that is capable of providing any significant light on the interactions between the applicant and the complainant as detailed in the Crown Case Statement, viewed in the context of the elements of the offences charged against the applicant.

16. The applicant further argues that the complainant has no recollection of the sexual activity. That much can be accepted. That fact has, in my view, little impact, however, on what can be taken from the Crown Case Statement on which the prosecution relies. It may be that there are some gaps or portions where conversation is not intelligible, with the result that the complainant is not able to fill such gaps. It may be, ultimately, that the applicant is able to give evidence about what occurred at various points, including what was said. But those matters would not be impacted by the playing of the recording.

17. The applicant points to conversation between the applicant and complainant in which the applicant asked the complainant questions with respect to her willingness to continue their sexual relationship. On the face of it, that would indicate an enquiry at least relevant to obtaining consent.

18. The difficulty is that the Crown Case Statement must be read as a whole. That is to say, all of what is said and described across the period of time must be considered in understanding the nature of the interactions between the applicant and the complainant. Viewed in that way, the particular enquiries made by the applicant relied on on this application do not ultimately, in my view, support a conclusion that the consent of the complainant was obtained in relation to the sexual activity engaged in.

19. Similarly, the applicant submits that at various points there was a request by the complainant that he stop a particular sexual activity and that on each occasion the applicant complied. Again, reading the material fairly and in context, it seems to me that any suggestion the applicant was mindful to obtain consent or desist when consent was withdrawn is not supported by the picture revealed by reading the Crown Case Statement in its entirety.

20. It was on the basis of the above that I rejected the tender of the CCTV.

21. As I have said, it is not for me to conduct a mini trial based on either the footage itself or the written form of the Crown Case Statement. It is, however, relevant to form a view as to the strength of the Crown case, noting that there is always the potential for matters to change at trial.

22. In this case, given the recording, there is perhaps little room for the Crown case to change. There is, on the other hand, at least the potential for additional evidence to be led, including potentially from the applicant. It is not for me to speculate as to what he might say that would potentially cast doubt on the prosecution case. Ultimately, reading that Crown Case Statement fairly and as a whole, the conclusion that I have formed is that the Crown case is a very strong one.

23. A strong Crown case no doubt makes the applicant’s burden more significant. That is additionally so in the context of a case in which the show cause test provided in s 16A of the Act applies. The present is such a case, as a result of the offences constituting serious domestic violence offences for the purposes of s 16B(1)(c1).

24. As a result, the applicant is required by s 16A(1) to show cause as to why his detention is not justified. The Act does not, at least in express terms, provide the content of the show cause test. Matters relevant to the unacceptable risk test remain relevant to the show cause test but are not, in the case of the show cause test, the exclusive considerations.

25. In determining whether the applicant has satisfied the burden of showing cause as to why his detention is not justified, focus is necessarily drawn to the term “justified”. That word has been observed to be conspicuously open textured but that some content can be given to the expression by considering how the legislature anticipated it would be applied; that is, by bail authorities familiar with the basic principles of the Australian legal system: see Barr (a P**seudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47.

26. As I have said, it is not for me to form a presumptive view of guilt, or otherwise, and determine the application on that basis. That said, and as I have observed, a finding that the Crown case is strong will make the applicant’s burden more difficult.

27. There are, however, a number of factors in the present case beyond any suggestion of weakness in the Crown case that are available to the applicant in support of the submission that cause has been shown.

28. Firstly, there is the delay which has occurred and is anticipated in the future. As I have indicated, the applicant has been in custody since 3 September 2024, a period approaching 11 months. The matter is still in the Local Court and next listed on 30 July 2025. If committed to the District Court on that date, he would be before the court in August and if a trial date was then set, it could be expected that that trial would commence on a date not before July 2026. The result is that the applicant will spend something close to two years in custody prior to being convicted of any offence. That is a significant period of time and, in my view, a significant factor with respect to showing cause.

29. Secondly, the applicant’s former partner gave birth to the applicant’s child in September 2024; that is, a short time after the applicant’s arrest. While the relationship between the applicant and the mother of his child was fractured as a result of the applicant’s arrest and revelations flowing from that arrest, that fracturing is limited to the continuation of the de facto relationship between them. She otherwise remains supportive.

30. The applicant’s former partner has indicated a willingness to have the applicant remain involved in the life of their child. While her affidavit is somewhat scant in dealing with the subject, I accept what has been put by Mr Rahme, for the applicant, having spoken with her, to the effect that she will facilitate that relationship.

31. The opportunity to be involved in the life of one’s child from an early age is a matter of some significance, both to the applicant and the child. Whilst it was put by the Crown that there is no suggestion of any particular special needs on the part of the child, that does not change that basic fact.

32. Whilst the applicant, if bailed, would be living in Sydney, some distance from the Nelson Bay area where the child resides with his mother, I accept that the opportunity for contact with the child will be very significantly enhanced were the applicant to be on bail. As it is, it seems the applicant has seen the child, at most, three times whilst he has been in custody. Whilst it may have been possible for the child’s mother to take him to visit more often, I can accept that her willingness to do so was likely to have been significantly impacted by the strictures involved as a result of the applicant’s custody.

33. Further significant in showing cause are the conditions available to be imposed on the applicant, including a condition as to his residence in Sydney, which would have him some 180km from the complainant’s address, together with movement restrictions limiting him travelling.

34. The applicant also relies on the need to be at liberty to make arrangements with respect to his business affairs. As a result of these charges, it seems it has been determined that he should sell his share in the business to one of the co-owners. As submitted on behalf of the prosecution, there is no evidence that he has been hampered to any significant extent whilst in custody from making those arrangements. I would also accept, in accordance with that submission, that arrangements could be made to allow any sale of the applicant’s interests in the business to be facilitated whilst the applicant is in custody. Whilst it may be more convenient for the applicant to be at liberty, including with respect to any negotiations with respect to the value of his interests, I would not place any significant weight on this factor.

35. The final factor of significance is that the applicant is a person with no prior criminal history. Whilst that factor may not have the same impact it would have if the applicant was a younger person, that does not change the simple fact that the applicant is, as I say, a person with no prior criminal convictions.

36. Ultimately, having regard to those factors in combination, I am of the view that cause has been shown. It remains necessary to apply the unacceptable risk test. Pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of bail concerns that the applicant presents an unacceptable risk, then bail must be refused. The bail concerns are the matters set out in s 17 of the Act.

37. There is in this matter, having regard to the nature and seriousness of the allegations, necessarily a concern that the applicant will commit a serious offence or otherwise endanger the safety of individuals or the community more generally.

38. That risk, whilst based primarily on the allegations the subject of the bail application, is also informed by the presence of a further outstanding charge. The applicant faces a charge of sexual touching alleged to have been committed on 7 July 2022.

39. The history of that matter is somewhat unusual. It seems that a complaint was raised approximately a week after the alleged offence and an investigation commenced. The applicant participated in a record of interview in January 2023. No action was taken against him at that time.

40. Subsequent to him being charged with the present matters, however, it seems that the earlier matter was revived, with the result that he was charged on 3 June this year. There is no bail attaching to that matter. I understand it is to proceed in the Local Court.

41. Its significance for present purposes is, as I have said, the extent to which it elucidates the bail concerns, in particular the risk of the applicant committing a serious offence. Whilst it does heighten my concerns, the degree to which it does is impacted by at least a question as to the strength of the Crown case.

42. The particular allegation, it should also be observed, is alleged to have been committed in a similar area and in somewhat similar circumstances to the allegations the subject of this application. Significant in that regard is that the conditions of bail would remove the applicant from that environment.

43. Ultimately, having regard to the fact that the applicant would be residing in Sydney away from the business operations and circumstances surrounding the alleged commission of all outstanding offences, and the fact that he is a man with no prior criminal convictions, in my view, the relevant risks are mitigated to the point that they are not unacceptable.

44. With respect to the risk that the applicant might fail to appear, that is always a consideration in circumstances where there is a strong case in relation to an offence that will inevitably carry a sentence of imprisonment of some length. In the present circumstances, however, again having regard to the conditions that are available and the applicant’s lack of prior record, I am of the view that that risk is mitigated so as not to be unacceptable.

45. With respect to the risk that the applicant will seek to interfere with witnesses or evidence, it is to be noted, as I have already observed, that the Crown case is based on a CCTV recording. In those circumstances, and in circumstances where the complainant’s memory is lacking, it seems there is little the applicant could do in any attempt to seek to interfere with the complainant or the evidence generally.

46. Given those matters, I am satisfied that there is not an unacceptable risk in this matter and bail is granted subject to conditions.

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