R v Warwick

1. The accused denies any involvement in any of the seven events. He denies that he committed the crimes, or was in any way implicated in the commission of the crimes. He has not served any notice of an alibi in accordance with the requirements of the Criminal Procedure Act 1999.

Bail Act 2013

1. This release application falls to be decided in accordance with Part 3 of this Act.
2. Each of the counts on the Indictment, except for the charge pursuant to s 204 of the Crimes Act of maliciously placing an explosive substance near a building with intent to damage that building, are show cause offences within the meaning of s 16B of the Act.
3. Section 16A of the Act, which imposes the show cause requirement, is in the following terms: "16A Accused person to show cause for certain serious offences (1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. (2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test - all offences). (3) …"
4. If the accused does show cause, this Court must proceed to assess any bail concerns and then make an evaluative assessment of those concerns to see if there remains an unacceptable risk.
5. This second part of the process is conducted in accordance with ss 17 and 18 of the Act, which are in the following form: "17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) ... (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement). 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division: (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f) whether the accused person has a history of compliance or non‑compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (j) …, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A. (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered: (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole."
6. Section 19 of the Act provides that this Court must refuse bail if it is satisfied on the basis of an assessment of the bail concerns, that there is an unacceptable risk. An unacceptable risk is defined in the following way: "19 Refusal of bail - unacceptable risk (1) … (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence."
7. If the Court assesses that there is an unacceptable risk or risks, as I have just noted, it must refuse bail. If, on the other hand, there are no unacceptable risks, the Court must grant bail (whether with or without the imposition of bail conditions): s 20 of the Act.
8. The provisions of s 22 of the Act are also relevant because that section refers to the necessity for "special or exceptional circumstances", to exist before a bail decision can be justified. But this test only applies to the particular applications specified in the section. It does not apply to this application.
9. In determining whether or not to grant bail, the Court is not bound by the principles or rules of law regarding the admission of evidence, but can take into account any evidence or information which it considers credible or trustworthy in the circumstances: s 31 of the Act.
10. When this Court decides any matter with respect to exercising its function in relation to bail, that matter is decided on the balance of probabilities: s 32 of the Act.

Potential Custodial Sentence

1. It is also necessary to consider the potential of the imposition of a custodial sentence if the accused is convicted of any of the offences upon which he has been indicted. The available sentences are: Offence Statute Maximum Sentence Standard Non-Parole Period Murder (Counts 1, 2, 6 and 11) s 18(1)(a) Crimes Act 1900 Life imprisonment 25 years in respect of the murder of Justice Opas - otherwise 20 years Exploding an explosive device with destroys or damages a building with intent to murder (Counts 3 and 7) s 28 Crimes Act 25 years 10 years Placing an explosive substance into a vehicle with intent to commit murder (Count 9) s 30 Crimes Act 25 years 10 years Maliciously placing an explosive substance near a building with intent to damage the building (Count 5) s 204 Crimes Act 25 years No standard non-parole period Maliciously by an explosion causing grievous bodily harm (Counts 12 to 24) s 46 Crimes Act 25 years No standard non-parole period

1. With respect to the four counts of murder, the provisions of s 19A of the Crimes Act may also be relevant. That section provides that a person who commits the crime of murder is liable to imprisonment for life. This sentence, if imposed, means that the individual serves the sentence for the term of the person's natural life. Section 19A(4) provides that the section applies to a murder "… committed before or after the commencement of this section". The only exception is that provided in s 19A(5) which relates to circumstances where committal proceedings (or proceedings by way of ex officio indictment) for murder were instituted before the commencement of that section in 1989. The exception does not apply in this case.
2. Section 61 of the Crimes (Sentencing Procedure) Act 1999 identifies matters of which a court must be satisfied prior to the imposition of a mandatory life sentence.
3. The nature of the Crown case, if accepted by a jury, would require a court to carefully consider, in imposing sentences for each of the four counts of murder, whether this is a case in which the provisions of s 19A of the Crimes Act, and s 61 of the Crimes (Sentencing Procedure) Act, were applicable.

The Accused

1. The accused is presently 71 years old. Whilst he has a history of past offences, that history is now so old, and the offences so minor, that it is irrelevant for the purposes of this application.
2. At the time of the offences, the accused was engaged in litigation in the Family Court arising from the dissolution of his first marriage to Andrea Blanchard. He was at that time employed as a fireman. He and Ms Blanchard had one daughter.
3. Sometime after the litigation ceased, the accused formed a relationship with his current wife, who arrived in Australia in 1992.
4. The accused and his wife together have three children aged 15, 26 and 27. For the about the last 20 years the accused and his family have lived on a property in Douglas Park, which is a semi-rural area south of Sydney and approximately midway between Picton and Appin. The property at Douglas Park consists of about six acres upon which is built a four bedroom house, two garages and a shed.
5. The whole family continues to live at Douglas Park. However, they are without the support in their everyday activities from the accused. Prior to his going into custody he was deeply involved in the family's activities and in assisting his children with their education and sporting activities.
6. The material from the accused's family members which is before the Court expresses their belief in his innocence of the offences upon which he has been indicted. They are also of the view that if released on bail, the accused would not present a risk to the community and, with their assistance, would comply with any bail conditions.
7. The accused retired from his position as a fireman at the age of 55 during 2002. On the material before the Court, he has not been employed in a job since then. It appears he has been engaged fulltime in looking after his family and maintaining the property at Douglas Park.
8. The accused's wife was born in the Philippines in an area that appears to have been largely rural on an island to the south of Manila city.
9. According to the police, the accused has built a house in the Philippines in the area from which his wife comes. According to his daughter's evidence, the property is in the province of southern Leyte. It is a small, poorly constructed and rudimentary house with crude facilities and not readily liveable. The accused's daughter says that the last time her parents went there, such was the condition of the house that they could not, and did not, stay there.
10. The accused has left Australia and travelled overseas on a number of occasions between 1985 and when he was arrested in 2015. He has returned each time to Australia. The last time he visited the Philippines was sometime between 2010 and 2012.
11. In addition to the property in which he lives at Douglas Park, the accused also owns an investment property at Casula which is currently rented out. Both the Douglas Park property and the Casula property are presently unencumbered.
12. At the time of his arrest the accused had about $180,000 in a bank savings account. The current balance is about $3,000. The police have not undertaken any searches since the accused was arrested with respect to his property, assets or finances generally.
13. The accused presently suffers from diabetes. According to his daughter, who is a qualified nurse, he is not insulin dependent.

Present Custodial Status

1. When the accused was first brought before the Campbelltown Local Court on 30 July 2015, he did not apply for bail, which was formally refused, and he was remanded in custody. He has been in custody since then. He is presently held at the Metropolitan Reception and Remand Centre at Silverwater ("MRRC").
2. On 30 November 2015, a release application seeking bail for the accused was filed in the Local Court. It was listed for hearing on 14 January 2016, but did not proceed on that day. That application was not re-listed or otherwise pursued.
3. After arraignment in this Court, and during 2017, a release application was filed but it has not been further pursued. Accordingly, this is the first release application brought by the accused.

Show Cause Requirement

1. In accordance with the Act, an applicant must show cause why his detention is not justified. This a two-step process in which the Court does not conflate those two tests. The first test is that an applicant needs to show cause why their detention is not justified. Then, if the applicant succeeds in so doing, it is necessary for the Court to assess any bail concerns to determine whether there is an unacceptable risk: DPP (NSW) v Tikomaimaleya (2015) NSWCA 83 at [20], [25].
2. Although the decision-making process is one involving two distinct steps, similar matters may be relevant to each step in the decision-making process. But not everything that is relevant to a show-cause test is relevant and can be taken into account when considering the unacceptable risk test. That is so because s 18 of the Act requires that a court is to only consider the matters exhaustively listed in that section when considering the unacceptable risk test. In particular, it should be noted that it is not open to the Court to take into account the fact that an applicant has shown cause why their detention is not justified: s 19(3) of the Act. However, the obverse is not true because the Act does not prohibit as a consideration in the determination of the show cause test that a bail authority has determined there to be no unacceptable risks or no bail concerns.
3. The show cause test requires the Court to make an evaluative decision. This involves identification of the relevant factors and an assessment of their weight and significance. Factors will point in different directions. Ultimately, the Court has to be persuaded by an applicant that cause has been shown why their detention is not justified.
4. In JM v R [2015] NSWSC 978, from [32] to [43], I enunciated a number of principles of general application to the grant of bail. I, without repeating those principles, keep them firmly in mind in this decision.

Accused's Submissions

1. The accused submitted that he has shown cause why his detention is not justified by reference to a series of matters, each of which will need to be examined. These matters included: 1. the present conditions of custody of the accused which prevented, or else substantially interfered with, access to his lawyers and precluded adequate preparation of the matter for trial; 2. the strength of the Crown case, which he submitted was weak; and 3. the proposed bail conditions, which would mitigate any bail concerns such that any remaining risk would not be an unacceptable one.

Custodial Conditions at the MRRC at Silverwater

1. The accused is presently held at the MRRC at Silverwater. He shares a cell. According to the evidence of members of his family, the accused says that he has no privacy in his cell and that he feels unable to keep papers relating to the trial in his cell. He has told members of his family that he is not able to read documents in his cell, although it is not clear why this is so.
2. Whilst in the MRRC there is no prospect of the accused having his own cell because, as Mr Burgess, the Assistant Superintendent of the MRRC explained in evidence, the facility does not have individual cells in the general mainstream population accommodation area.
3. Mr Burgess' evidence was that the accused has been approved to receive a laptop computer to enable him to review legal material loaded on it in electronic form. His evidence on 7 March 2018 was also that the MRRC is willing, if a request is lodged, to make available a legal interview room for the exclusive use of the accused and his lawyers between the hours of 8.30am and 5.30pm from Monday to Friday and with slightly reduced hours over the weekend. His evidence was also that inmates at the MRRC who are entitled to have paper briefs of evidence can have their material stored in plastic tubs. Each tub has the capacity to contain between eight and ten folders. The ordinary allocation is one tub at a time to be kept in a cell, but in some exceptional cases the staff at the MRRC can approve more than one tub being kept in a cell. Tubs that are not kept in a prisoner's cell are held in a secure property room and can be accessed by an inmate upon request to the staff.
4. Mr Burgess said that as at 7 March 2018, he had not received any request from the accused to store more than one tub of documents in his cell and, further, had not received a request for a long-term booking for a legal interview room. As well, the MRRC can arrange for legal conferences to take place via audio visual link.
5. It goes without saying that access by any inmate to their lawyer can be restricted without notice should operational requirements at a correctional centre mandate such an occurrence.
6. After Mr Burgess gave evidence and was cross-examined, the accused sought, and was given, leave to rely upon two further affidavits of Ms Elizabeth Ramsay relating to the experience of the accused's lawyers after 7 March 2018 in gaining access to the accused and their attempts at correspondence with the custodial authorities. It was submitted that, in combination, this evidence, which was not challenged by the Crown, demonstrated that notwithstanding the assurances given in Court by Mr Burgess, there were nevertheless significant difficulties remaining in the custodial arrangements for the accused. These difficulties meant that the lawyers did not have adequate access to him for the purpose of preparation of the case.
7. Ms Ramsay's first affidavit of 15 March 2018 highlighted correspondence and the lack of a response between the accused's lawyers and the General Manager of the MRRC. Also included in that affidavit was a letter from the Office of the Director of Public Prosecutions dated 8 March 2018, providing information as to how the accused's lawyers could go about making the request for a dedicated legal conference room at the MRRC, and for access for identified individuals in accordance with the MRRC's ordinary routine.
8. The accused's lawyers did not act on that letter until 15 March 2018, when an application was submitted for a room to be made available for a three hour conference later that afternoon. That application was promptly granted. On 16 March 2018, an application on the appropriate form was submitted for a reservation of a legal room for visits with the accused for each day between 19 March 2018 and 13 May 2018. That request was responded to on 19 March 2018, which was the next business day, and was approved.
9. The legal visit room, dedicated as being available for the accused and his lawyers, is equipped with a desk and three chairs, together with a desktop computer. Additional chairs can be provided if required. The accused's lawyers are permitted to take volumes of papers into the room, and the MRRC staff have agreed to make the room next door to the dedicated legal visit room available for storage.
10. The terms of the correspondence may well be viewed as tendentious and somewhat confrontational, which readily explains the absence of a prompt response. However, I have noted that the terms of the correspondence reflect issues identified in other material about difficulties associated with the solicitors visiting and taking instructions from the accused at the MRRC.
11. Ms Ramsay's second affidavit, sworn 20 March 2018, identified a number of particular difficulties with the facilities provided at the MRRC. The difficulties included that: 1. there was no water or food available in the dedicated legal visit room, or in the adjacent facilities; 2. there were no bathroom facilities available; 3. no advice was given that Ms Ramsay could leave or return to the dedicated legal visit room at any time; 4. no indication was given as to how food would be given to the accused during the lunch hour; 5. there was no statement made to the effect that the accused would be excused from the usual prison routine; and 6. there was no place in the room for storage or keeping of files.
12. Ms Ramsay's affidavit also identified the fact that when she opened the desktop computer that had been provided, she received a warning message that any use of the computer would be subject to ongoing physical and electronic surveillance. Because of this message, Ms Ramsay says that she did not make further use of the computer.
13. Ms Ramsay's affidavit records that the particular visit to the accused on 19 March 2018 occupied about two hours of face-to-face meeting and concluded at 11.40am. The dedicated legal visit room remained available for use by the accused and his lawyers until 5pm that day.
14. Whilst Ms Ramsay's affidavits drew attention to a number of matters, not all of them can be regarded as major impediments to the obtaining of instructions from the accused. Most are explained by the necessary operational requirements of a correctional centre. Other options are also available - for example, the evidence makes clear that the accused's lawyers are permitted to take their own laptop computers into the dedicated legal visit room for their use during conferences. As well, the lawyers are free to leave the dedicated legal visit room and return to it, subject to the usual security requirements upon re‑entry.
15. The principal matters which the accused has submitted are unsatisfactory, in light of all of the evidence, seem to come down to these. First, that the accused's daughter, who is assisting the accused's lawyers in the preparation of the case and the communication of certain matters with her father, has not been permitted by the staff at the MRRC to attend during a legal visit. She only has access to the accused during the time allowed for family visits. The accused's daughter is not a qualified lawyer, and is not employed by the accused's solicitors. She has volunteered to assist them and the accused.
16. Second, the accused does not feel able, for reasons of security and privacy, to keep any papers relating to the trial in his cell. The accused has pointed to circumstances in which his cell has been searched by MRRC staff and, further, that depending on whomever occupies the cell with him, that person would have access to any papers kept in the cell whether in a tub or otherwise. I note, however, that the Crown brief which has been delivered in electronic form for the purposes of the trial, arranged in accordance with Court orders, can be accessed on the laptop made available by Corrective Services. Staff at the MRRC also have access to that material for security reasons. However, there is nothing in the Crown brief which involves any question of client legal privilege or confidentiality about the accused's personal affairs. The Crown brief contains material which is to be led in evidence at the trial. Much of that has been previously tendered during the committal proceedings. The accused is free to access and use the laptop computer and read the Crown brief at any time he wishes.
17. Thirdly, a further difficulty upon which the accused relies with respect to his being in custody arises by reason of his physical health. The accused has been diagnosed as a diabetic without being insulin‑dependent. He attends the MRRC clinic each morning at 8.30am for the purpose of blood sugar analysis and treatment of his diabetes. Because of that condition, he cannot go without food or water for lengthy or extended periods of time. Food and drink, other than water, are not permitted in the dedicated legal visit room. However, the accused can leave that room, return to his cell at any time during the course of the day to obtain food and drink and, after consumption, then return to the dedicated legal visit room. Similarly, if the accused's lawyers wish to access food and drink other than water, they can do so outside the confines of the MRRC and then return to it and resume their conference.
18. Whilst this undoubtedly means that a conference would be interrupted for this purpose, I do not regard that as a significant interruption. In my experience, very few legal conferences take place continuously for an eight or nine hour period without participants in such conferences having a break, at some time. There is no reason why during any such break, meals could not be taken.
19. In summary, it is fair to conclude that the accused's access to his lawyers whilst he is in custody is not as easy or comfortable as it would be if he were not in custody. If the accused was able to visit his lawyers at their offices or else they could visit him at his home, then the surrounding environment would likely be more congenial, far more comfortable and more flexible. However, the fact is that arrangements are now in place to give the accused significant, uninterrupted periods of access to his lawyers every day between now and when the trial is fixed to commence.
20. I accept that it may be preferable for the accused to have access to his daughter as part of the legal team, but I am not persuaded that her specific knowledge of the Crown brief, or other family matters, is such that any assistance which she could render is not able to be replaced by other clerks carrying out similar work. Nor am I persuaded by reason of her being denied permission to be present that it is not possible for the accused to communicate with his lawyers adequately.
21. Fourthly, it seems to be submitted that the shortness of time between now and when the trial is fixed to commence, when combined with the size of the Crown trial brief, which is over 19,000 pages, and the restrictions which do exist on discussing matters with the accused in custody, in combination means that the accused's lawyers will not be able to prepare adequately for the trial date.
22. A very significant part of the Crown brief has been in the hands of the accused, his counsel and his previous lawyers for over 12 months. Complaint was first raised about the lack of access by the accused to the Crown brief when, in February 2018, the accused sought to have the trial date vacated and that there be an adjournment of the trial for a period of at least 12 months. For the reasons which I then gave, I was not satisfied that any adjournment longer than three months was in the interests of justice. My reasons for adjourning the trial date to May 2018 are set out in R v Warwick (No.5) [2018] NSWSC 70.
23. I was not then persuaded, and I remain unpersuaded, by any additional material relied upon in this application that, having regard to the issues identified as being those likely to arise at the trial, it is necessary for the accused personally to read every page of the Crown brief in order to give proper instructions to his lawyers. He may choose to do so. However, the great bulk of the material in the Crown brief relates to matters that are not within the accused's knowledge. Nor are they matters upon which he would be expected to be able to provide any instructions or insight to his lawyers. In any event, having regard to the availability to the accused of a laptop computer and the Crown brief in electronic form, I am not persuaded that the accused could not become easily familiar with the Crown Brief in the time which is available between now and when the trial is fixed to commence.

Strength of the Crown Case

1. One matter which is of relevance to both the show cause test and the unacceptable risk test is the strength of the Crown case. Such an assessment underpins any conclusion about the length of time a person might spend in custody before trial as being justified. For example, if a Court concluded that a Crown case was particularly weak, it may be reasonable for it to conclude that even a modest time in custody is not justified.
2. The accused submitted that the Crown case not could be regarded as strong. He submitted that the case is an entirely circumstantial one, the strength of which depends upon eight identified strands.
3. The first strand was submitted to be the Crown's attributed motive, which is a motive to remove, or seek revenge upon, those whom the accused perceived as preventing him from achieving his desired ends in the Family Court litigation with his former wife. Counsel for the accused pointed to the fact that, given that during the period when the seven events occurred there were large numbers of other family law litigants, particularly males, who had openly clashed with and threatened Family Court judges, the motive argument is a weak one. The accused drew attention to the fact that if the motive was as the Crown asserts, then it is surprising that no violent attack was perpetrated upon the accused's former wife - the main person standing directly in the path of the accused.
4. The second strand identified by the accused was one of opportunity. The accused noted that the Crown case alleges that the accused had the opportunity to commit the offences by reason of the fact that he was not rostered on to, and was not at, work at the time of those offences. The accused pointed to the fact that there is no evidence that he was identified as being in or around the scene of any of the offences, and therefore could not be regarded as having a real opportunity to commit them.
5. The third strand was that the accused was alleged by the Crown to have knowledge of explosives and firearms. It was submitted that this material depended upon hearsay and innuendo and is not supported by any direct evidence. However, it does not seem to be in issue that the applicant owned or was in possession of a number of firearms which he used from time to time to go rabbit shooting.
6. The fourth identified strand was that the accused had in his possession various items similar to those which were used in one or other of the explosions giving rise to the charges, being Events 3 to 7 inclusive. The accused submitted that the items, namely a welder, windup clocks, alligator clips, welded pieces of pipe, string and Eveready batteries, were extremely common every-day items seen in very large numbers in Australian homes. He pointed to the fact that welding was commonly undertaken by home handymen, amateur mechanics and the like. He submitted that this strand does not advance the circumstantial case against the accused.
7. The fifth strand that the accused identified was that it is alleged by the Crown that he had access to, and possession of, explosives and detonators. The accused pointed to the complete absence of any evidence that he (the accused) had access to, let alone possession of, any explosives or detonators at any time. The accused identified this strand as not being supported by any served evidence, and therefore not supportive of the Crown case.
8. The sixth strand that the accused identified as being part of the Crown's circumstantial case was that the accused was supposed to have had access to explosives manuals. The Crown case, according to the accused, is that because the accused's father was employed as a coal miner, and at times acted as a shot firer's assistant, his father had knowledge of explosives and detonators and knew how to use them and that his son also possessed that knowledge.
9. The accused pointed to the fact that in order to carry out the bombings, the expertise relied upon by the Crown required considerably more than a basic or rudimentary knowledge of explosives which could be obtained from a manual. The accused submitted that the person who constructed and placed bombs (or improvised explosive devices) would have needed both knowledge and experience of devices of the kind which were used. He submitted that proof of any such knowledge is absent from the Crown case.
10. The seventh strand that the accused pointed to was that although weapons were used in Events 1 and 2 (the shooting deaths of Mr Blanchard and Justice Opas), all of the firearms owed by the accused were cleared by police investigators of any involvement in either of these Events. The accused pointed to the existence in the community of many thousands of rifles of the kind likely to have been used in the shooting of Justice Opas.
11. The eighth and final strand addressed by the accused is that of DNA found at the scene of the Kingdom Hall bombing (Event 7). The accused pointed to the evidence that a significant quantity of blood was found in the Hall on the Saturday preceding the bombing of the Kingdom Hall. The accused submitted that such was the quantity of blood found that the individual must have sustained a significant wound in order to leave that quantity of blood behind. The accused pointed to the fact that a little over two weeks after the break-in, after which the blood was found, the accused was strip-searched and his body examined by police officers. They did not identify any signs of injury. The accused pointed to that as demonstrating that it is highly unlikely that the accused was the person whose blood was left in the Kingdom Hall. Further, the accused submitted that the accuracy of the DNA testing and the reported conclusions are challenged. This is submitted to be particularly relevant in light of a recent expert report of some further swabs of the carpet and cardboard from which the original swabs were taken, which indicated that with respect to one of them, at least two persons contributed their DNA to the swab.
12. Those submissions about the eight strands were supplemented by assertions made by Mr Conolly in his affidavit of 26 February 2018, with respect to the strength of the Crown case. He too criticised the Crown case upon the basis that it was entirely circumstantial, except for the DNA evidence at the Kingdom Hall, and that there was nothing that linked the accused to any of the seven events, or which linked the seven events together. He asserted that "… the tendency evidence fails to demonstrate a link between the events, even if a civil burden of proof were adopted" and also that "… except for the very weak DNA evidence, now compromised, there is simply no evidence that connects Mr Warwick to any of the events".
13. Based upon those two conclusions, Mr Conolly further asserted: "This explains why, for over 30 years, no action was taken against Mr Warwick because there was no reasonable basis to do so."
14. The Crown submitted that, contrary to the submissions of the accused, the prosecution case is strong in relation to the bombing of the Kingdom Hall. The prosecution submitted that, with respect to the Kingdom Hall bombing, the DNA analysis of the blood in the Hall a week before the bombing is strongly persuasive of it being the accused's blood, and that therefore it follows that the intruder on that occasion was the accused. It pointed to the fact that access to the Kingdom Hall was obtained the following week with the intruder using the same point of entry and following the same path as had been previously been used in order to plant the bomb beneath the stage area at the front of the Hall. The prosecution case is that the congregation that was targeted with that bomb had assisted the accused's former wife and his daughter to move out of Sydney and to relocate to the mid-North Coast. The prosecution's case includes evidence that the accused became aware of the Church's assistance, and in the months before the bombing was attempting to locate his former wife and child by contacting various members of the congregation for information and assistance. As he was not given any assistance, the Crown submitted that the explosion of the bomb and consequent demolition of the Kingdom Hall was an act of revenge by the accused.
15. When the accused was evicted from his home on 30 July 1985, pursuant to a Family Court order, NSW police attended and searched the home. They located handwritten notes in the kitchen which included the address details of six Elders of the Jehovah's Witness Church. The list was compiled in the accused's handwriting. On that day, the accused admitted to the police that it was his view that the Jehovah's Witnesses and his wife were responsible for hiding his child and preventing him from having access to her.
16. The Crown submitted that the combination of those circumstances would be sufficient to satisfy a jury beyond reasonable doubt that the accused was the person responsible for the Kingdom Hall bombing.
17. The Crown submitted that its case in relation to the Kingdom Hall bombing is further strengthened when it is considered in conjunction with the evidence concerning the Watts bombing (Event 6). The Crown's submission is that there are two important and entirely unique similarities between the bombs used in the Watts bombing and the Kingdom Hall bombing (Event 7), namely: 1. the use of a particular kind of explosive substance, namely Molanite; and 2. the use of a particular kind of detonator, namely a No.6 Instantaneous Electric Detonator manufactured by the company ICI before 27 May 1981.
18. The Crown pointed to the opinion of an expert, which it proposes to adduce before the jury, which in substance is that the combination of the use of Molanite in both bombs, together with the use of the particular detonators, inextricably linked the two events. It is the Crown's case that Event 6 was targeted at the principal solicitor of the law firm which acted for the accused's former wife, and against whom the accused was motivated by revenge.
19. As well, in relation to each of the seven events, the Crown relies upon coincidence reasoning. That is to say, they will invite the jury to draw an inference or come to the conclusion that the occurrence of the seven events cannot be explained as simply a coincidence. Put differently, that the jury would conclude that all the events were linked, and all were planned and perpetrated by the same person.
20. In that respect, resort by the Crown to coincidence reasoning relied upon a number of matters which it had previously articulated as being powerful, if not overwhelming, in demonstrating that each of the seven events was carried out by the same person and that person was the accused. The matters have been previously enumerated in R v Warwick (No.2) at [107] but are repeated here. Those matters are:

• In the period from mid-1979 to April 1986, there were Family Court proceedings on foot between the accused and his wife which were contested.
• The proceedings were being conducted in the Parramatta Registry of the Family Court.
• Prior to the shooting identified as Event 2, the Opas murder, there had not been a murder or an attempt to murder a sitting judge in Australia - at least during the whole of the 20th century (if not earlier).
• Including and after Event 2, and during the period of the accused's Family Law proceedings, there were three events of an attempted murder on a sitting judge in the Parramatta Registry of the Family Court of Australia, and one of an attempt to destroy the Parramatta building of the Family Court.
• Each of these targeted judges had presided over part of the Family Court proceedings and made orders which were, or else were perceived to be, adverse to the interests of the accused in that litigation.
• The events did not continue after April 1986 when the accused's Family Law proceedings were finalised.

1. The Crown accepts that it is possible to criticise one part of the evidence or another and to suggest individual weaknesses in the Crown case. However, the Crown submitted that it is the combination of all of the evidence, including those steps taken by investigating police to identify and eliminate any other suspect, which would persuade a jury of the accused's guilt of all of the counts, and by reference to which this Court ought assess the strength of the Crown case.
2. An assessment of the strength of the Crown case for the purpose of this release application at a time prior to the trial and the adducing of evidence in Court is necessarily somewhat impressionistic and evaluative rather than a forensic analysis of all of the features of an entire Crown case. The exercise may be simple in some cases where evidence on one or other element of a particular offence is capable of being found to be missing or weak. An example of such a provision may be with respect to the identification of an accused for bail as being the perpetration of a particular offence.
3. Looking at the conduct which will be before the jury, and at the Crown case as a whole, I am satisfied that it demonstrates in each case the planned use of lethal violence - either through firearms or explosive devices. Leaving aside Event 4, the attack on the Family Court building, such was the nature of the violence and the surrounding circumstances of each Event, that the Crown has a strong case that the lethal violence was perpetrated with an intention to kill one or more individuals.
4. The evidence to be adduced as part of the Crown case demonstrates with each event, a persuasive link to litigation being conducted out of the Parramatta Registry of the Family Court of Australia, with the strong inference that the perpetrator of the events was a disappointed participant in such litigation. Equally, the use of coincidence reasoning, legitimately open to the Crown, suggests that the events are highly unlikely to have been carried out by separate individuals entirely coincidentally.
5. The Crown case includes an exercise of identifying possible suspects from those involved as parties to proceedings in the Parramatta Registry of the Family Court of Australia and eliminating them. Of course, there will be a question for the jury to determine whether there are any other suspects whom the Crown cannot eliminate beyond reasonable doubt as being responsible for these events.
6. The features of these events which have particular relevance to the accused are the identity of the victim in Event 1, his former wife's brother, who was a witness to events central to the issue of custody of the accused's daughter, and who had intervened on the side of his sister with respect to the issues before the Family Court. The other feature which obviously links the accused to these events is the DNA found at the scene of the Kingdom Hall bombing. For reasons which I have earlier explained, the Crown's case with respect to that bombing is, on its evidence, strongly linked to Event 6. The target of Event 6 is said by the Crown to be the solicitor for the accused's former wife. Each of the targeted Judges had made remarks or orders or delivered judgments which were critical of the accused and his conduct towards his former wife.

Bail Conditions Generally

1. The accused has submitted that the bail conditions which have been offered all strongly point to the grant of bail as being without real risk of the kind raised by the Crown, and certainly without any unacceptable risks.
2. The Crown submitted that there is a risk that the accused will commit a serious offence if released on bail, a risk of danger to the individuals concerned with the proceedings and the community, and a risk that the accused will fail to appear at the trial.
3. In support of its submissions that the Court ought have bail concerns with respect to risk of commission of a serious offence and the risk of danger to individuals in the community, the Crown pointed to the strength of the Crown case (which I have earlier addressed) and the nature of the crimes which were carefully planned and carried out. It submitted that the crimes were carried out in circumstances where the perpetrator, with the exception of the break-in for the purpose of a reconnaissance at the Kingdom Hall a week before Event 7, did not leave any identifying feature at the scene of the crime. The Crown pointed to the fact that the motive which it attributes to the accused derives from proceedings before a court in which he was engaged in circumstances which he did not regard as being favourable to him.
4. The Crown drew a parallel to the current criminal proceedings and submitted that the accused's previous conduct with respect to the Family Court proceedings demonstrated, having regard to the strength of the Crown case, that there is an obvious risk of the commission of serious crimes towards those involved with these proceedings including the witnesses, some of whom are serving or retired Family Court judges or staff. The Crown submitted by reference to what has been said in Court in these proceedings, that the accused has betrayed an attitude of not recognising the independence of the presiding Judge, the Crown prosecutor or the investigating police and that he has already come to the conclusion that he has no faith in the prospects of receiving a fair trial. In those circumstances the Crown submitted that there is a very high risk that the accused, if released, would commit further serious crimes and put all those involved, including the witnesses and the community, at risk.
5. In assessing the weight to be accorded to this submission of the Crown, I take the view that it is inappropriate to give it any weight at all, and I ignore it to the extent that it suggests that any Judge of this Court, including me, involved in deciding any part of the pre-trial proceedings or who is presiding over the accused's trial ought to be regarded as a possible target of any crime when making an assessment of the risk of commission of serious offences by the accused if released on bail.
6. To that submission may be added the fact that such is the seriousness of the offences, and the available penalties which may be imposed upon the accused if he is convicted, the accused may feel that he would not be any worse off in terms of his likely future course if he was to commit further serious offences.
7. Of course, the accused's response to that submission is that he denies any involvement in the proceedings and he points to the fact that the Court is to regard him as innocent until a jury returns a verdict by which he is convicted, and further that his past criminal record, particularly since 1985, is entirely unblemished and that there is no hint that he is the type of person who would commit any crime.
8. In that respect, the accused's submission is supported by the evidence provided by various members of his family and, in particular, that of his daughter and her fiancé.
9. With respect to the concern that the accused may fail to appear when the proceedings are listed, the Crown pointed to the nature and seriousness of the offences and the likely penalty which would be imposed if the accused were convicted.
10. In response, the accused pointed to his entrenched connections with the community, including the fact that his wife and children reside, and have done so for many years, in the area south of Sydney, where his home is. He submitted that he has not sought to move away from that location, either interstate or overseas, notwithstanding that he has been informed since the time of these crimes that the NSW Police regarding him as a suspect for them. The accused also points to the fact that all of his assets are also held here in NSW. It was not suggested that he had any liquid or accessible assets outside Australia.
11. As well, the accused relies upon a bail condition that he be subject to continuous electronic monitoring of the kind which I describe below.
12. In combination, the other conditions proposed by the accused are also relied upon by him as indicating that if imposed, any risk that he might fail to appear or commit serious offences or interfere with witnesses or the community are non‑existent.

Electronic Monitoring Program

1. The accused, as part of his bail proposal, submitted that he would pay for, and be a part of, an electronic monitoring program. Accordingly, it is necessary to make an assessment of the proposed program, to which it is convenient to refer as the "EMP", to assess whether its use by the accused would mitigate any bail concerns.
2. The evidence with respect to the EMP was given by Mr Philip Schluter, who is a senior executive associated with the implementation and conduct of the EMP. The EMP is conducted by Attenti Australia Pty Ltd ("Attenti"). According to Mr Schluter's evidence, a participant in the EMP is fitted with a single piece electronic monitoring device ("the device") which communicates primarily with GPS satellites or else with cell towers on the mobile telephone network in order to fix its position, and then transmits data to the Attenti server which contains the central monitoring system via the mobile telephone network. Once operational, a series of rules can be enabled for the device. These rules include: 1. defining inclusion zones - being geographical areas that the participant must remain within, such as a residential address to which a person has been bailed; 2. fixing times (equivalent to curfew times in bail conditions) within which the participant must remain within the inclusion zone; and 3. defining exclusion zones - being geographical areas which the participant is prohibited from entering;
3. Alerts are generated by the system if any of the rules are violated or if the participant attempts to interfere with the device either by interfering with the strap attaching the device or with the device itself. These alerts result in a text message or email being automatically generated by the Attenti central monitoring system, which do not depend upon any human intervention, and which is then sent to a designated police officer or officers.
4. As well, by way of a default reporting system to ensure that the electronic monitoring device is operating correctly, it is programmed to report to the central monitoring system hourly to indicate its position, and to report that there are no operational faults. Alerts are only generated where the device fails to report as required.
5. As with all GPS-based devices or devices which depend upon the mobile telephone system, there are black spots throughout the Sydney metropolitan area and all rural areas where the device will either be unable to establish its position or, alternatively, unable to report its position to the central monitoring system via the mobile network. As well, as with any such device, there are margins of error as to where its actual position is. According to the evidence of Mr Schluter, if the device is being tracked by the GPS satellites then he would expect the device to accurately identify its position to within three metres for 95% of the time. If the system is tracking its location through the secondary mobile telephone system, then it would be accurate to within 50 metres for 95% of the time.
6. Mr Schluter accepted that there would be occasions when the device would be working adequately but by reason of the wearer being on a train, in a tunnel or in a high-rise building, the device would not be able to be located or tracked.
7. During the business week, a report is generated by Attenti and provided by email to the officer in charge of the police investigation team, being a report which records all electronic activity on the system in the previous 24 hour period (or longer if the weekend is included).
8. Mr Schluter gave evidence about what effect there would be on the monitoring system if, during a curfew period, a participant was permitted to leave an inclusion zone to attend, for example, a legal or medical appointment. He said that if Attenti was informed over 24 hours in advance of such an appointment, a rule could be set in the system to allow the curfew timing to be suspended at the time of the anticipated appointment. He described that as a cumbersome process. He gave evidence that the better way to address such an exception to a curfew rule in the system would be simply to inform the police officer in charge in advance, who would then be aware that there would be an inclusion zone violation event. The officer would accordingly be aware that the participant had left the curfew zone on the basis that the person was attending the pre-notified appointment.
9. Mr Schluter accepted that Attenti, and its EMP, could not validate that there was an appointment, nor could it validate what happened during the trip to the appointment or at the appointment itself. He said that he did not regard such monitoring and validation as being part of the role of the EMP which his organisation operated. He said that that was a responsibility for the police.
10. During any such period, and indeed during the entirety of the period whilst Attenti's central monitoring system receives information as to where the device is, it would not send the location of the device to the nominated police officer after an alert was generated. The next alert would be generated when the device entered an excluded zone or re-entered the inclusion zone. Mr Schluter said that his system did not continually update the nominated police officer with respect to the location of the device. He said it was a matter for the police to make whatever enquiries they felt fit in order to determine the location of the person.
11. Mr Schluter said that whilst the system was configured to send an SMS or email to the nominated police officer, or more than one officer if requested, there was no configuration in the system which allowed for a repeat email or SMS to be sent, and the system did not know when or if such a message or email was received or read.
12. Mr Schluter accepted that the significance of the system was not to track the location of a person, but rather to enforce the requirements of the Court by way of curfew, inclusion and exclusion zones. The violation rules configured generally related to such conditions. Mr Schluter regarded the tracking of a person's location as being a means to an end rather than the purpose of the system. He described the end as being to enforce the bail conditions imposed by the Court through the mechanism of the creation of geographically defined zones and curfew times. As well, a regular report generated by the central monitoring system would provide evidence of any breach of the bail conditions of that kind.
13. In summary, as it seems to me, the EMP proposed provides a real degree of confidence that if the wearer enters an exclusion zone, such as a point of international departure being a major airport at which police officers, or Australian Border Force officers are present, the wearer would be readily identified and detained before being able to leave Australia. Any other rule violations giving rise to an alert would require the designated police officer to decide what response, if any, was appropriate to that alert, to identify the appropriate police resources available to respond to the alert and then to put any response into action. The capacity of the police to respond, and the efficacy of any response, would depend upon a significant number of variables. Whilst it would be hoped that the police could respond in a timely and appropriate manner, there is no certainty that that would be so.
14. However, the EMP is not likely to be as effective when a curfew is permitted to be broken for the purpose of attending an appointment at a location outside an inclusion zone. Even if an inclusion zone could be created for the approved appointment destination, the times during which the wearer is outside each of the two inclusion zones cannot be controlled or supervised by the EMP.
15. The EMP would also be effective after the event by providing a report which provides evidence of non-compliance with bail conditions. That feature, if known to a wearer, may provide a measure of deterrence to the wearer against breaching any bail conditions.
16. In terms of the bail concerns raised by the Crown, the EMP would provide an effective guard against a person fleeing from the jurisdiction, and thereby failing to appear in Court, if the person was intending to flee overseas and can only do so through a defined exclusion zone. Otherwise, the effectiveness of the EMP in preventing the commission of a serious offence or any interference with any witness or endangering the safety of an individual or the community is open to question. It cannot, in my assessment, be regarded as a fool-proof system which is entirely effective to address these bail concerns. It may provide some mitigation of those concerns, but it does not entirely address them, nor does it remove them.

Matters for Assessment in Considering Bail Concerns

1. The accused's submissions contend that the vast bulk of the matters which are able to be considered in accordance with s 18 of the Act in assessing the unacceptable risk test lead to a conclusion in his favour.
2. The accused points to the fact that he does not have any past criminal history of significance nor a history (outside of the offences with which he is charged) of violence, nor of committing any serious offences whilst on bail, breaches of or non-compliance with previous bail orders or other like orders. He also has noknown criminal associations. The accused also points to his asserted need to be free on bail in order to prepare for his trial in conjunction with his lawyers. That is a matter which is the subject of separate assessment.
3. I have had careful regard to each of these matters and the extent to which they fall in favour of the accused in the assessment of the unacceptable risk test.

Discernment

1. As I have earlier said, in determining a release application such as this one, not all of the factors point in the same direction. Any decision is necessarily one which accords weight to each of the factors and asks whether, in all of the circumstances, the accused has shown cause as to why his detention is not justified and, further, that there are no unacceptable risks.
2. It is appropriate to first consider the show cause test. The principal and most significant basis upon which the accused submitted that he had shown cause as to why his detention was not justified is that his ongoing detention in accordance with the conditions which exist, and having regard to the difficulties which have been enunciated, means that he will not have had an adequate opportunity to prepare his case for trial. Accordingly, he submitted that he needs to be released from detention to enable him to adequately prepare for his trial and to properly instruct his lawyers.
3. I am wholly unpersuaded that this is so. I accept that it would be easier and more convenient for the accused to be on bail so as to enable him to prepare for his trial. However, in my assessment, in light of the issues which are likely to arise at the trial, such preparation as the accused needs to undertake for himself, and such instructions and information as he needs to provide to his lawyers, can all be given in the available time within the constraints of his present custody. Given the dedicated legal visit room which has been made available to the accused and his lawyers every day between now and the date fixed for the commencement of the trial, there is simply no reason why there is insufficient time or facilities for the accused to provide his lawyers with the necessary and appropriate instructions.
4. As well, I am unpersuaded that the accused cannot access the Crown brief for the trial for a sufficient period to enable him to read such of it as he wishes. He has continuous access to a laptop computer at all times whilst he is in custody which means that he is able to inform himself to the extent that he wishes.
5. I do not accept that the accused's concern for the security of any papers about the case being kept in his cell is a reasonable one. Nor do I accept that there is any part of the Crown brief which is of such a level of confidentiality that it is unreasonable to expect that the accused should access the Crown brief in that way. Any reluctance on the part of the accused to read the Crown brief either in paper or electronic form is not reasonable but entirely self‑imposed.
6. Even if I was persuaded that there were significant difficulties with the provision of instructions and readiness for trial because of the accused's custody, the conclusion that I have reached about the strength of the Crown case and the relatively short period between now and the commencement of the trial and the period of the trial itself in combination, far outweigh the difficulties of the accused in preparing for trial, and satisfy me that the accused has not shown cause why his detention is not justified.
7. The charges against the accused are many and serious. The Crown case is a strong one. In my assessment, this factor means that it is appropriate that a person in the position of the accused remain in custody prior to, and during, his trial. It follows that the accused has failed to show cause why his detention is not justified and, accordingly, the application must be dismissed.
8. This conclusion obviates the need to consider and determine the unacceptable risk test. However, if I was to consider all of the matters relevant to that test, I would not have been satisfied that the proposed bail conditions would have sufficiently addressed the bail concerns raised by the Crown, other than a risk of failure to appear, so as to reduce the risks so as not to be considered unacceptable.
9. In particular, by reason of the nature of the crimes which it is alleged that the accused has committed, when considered with the strength of the Crown case, mean that there is a real risk of the commission of one or more serious offences by the accused whilst on bail. The proposed conditions do nothing to ameliorate this risk. Furthermore, the risk to the safety of individuals associated with the prosecution of the case, including witnesses and the safety of the community more generally, which I assess as significant risks, cannot be reduced by the proposed conditions to acceptable risks. This is a step which is essential before a grant of bail can be made.
10. In light of the conclusions which I have earlier expressed, I make the following order: 1. Application for release pursuant to the Bail Act 2013 filed on 26 February 2018 is dismissed.

Amendments 30 April 2018 - Typographical error [71] 18 February 2020 - Non publication order lifted on 14 February 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2020