Tsintzas v Director of Public Prosecutions [2017] NSWCCA 172 | Case summary

Consideration

Applying the principles stated above to the facts in this case, I am satisfied that the applicant has established on the balance of probabilities that his detention is not justified. On the evidence before the Court, the burden of having to look after two young men is being borne solely by the applicant's wife. She has had to stop work to look after her two sons and is being supported by her two daughters. The Court had the opportunity to hear her describe what that involves. In addition, the Court had the opportunity to observe her and her two sons, who were present in court for the hearing of the application. Ms Galanopoulos was petite in stature and her sons were not. I am satisfied that the burden of looking after them is creating an intolerable strain on her.
The principles derived from the cases to which I have referred above allow for the fact that a particular vulnerability experienced by a family member or members may, either alone or in combination with other matters, be sufficient to show cause. There is no authority for the proposition that any form of hardship to a family will necessarily establish that cause is shown. Rather, the court makes an evaluative judgment in each case.
I have noted the evidence regarding the availability of assistance through ComPacks. Unfortunately, the state of the evidence on that issue was somewhat unsatisfactory. The document annexed to the affidavit of Senior Constable Osborne clearly states that the "Healthy at Home" programme only applies to persons assessed whilst they are still in hospital. This is consistent with the evidence of Ms Galanopoulos as to what she was told after her sons were discharged from hospital. Although I have no reason to doubt the evidence of Senior Constable Osborne, who did not speak to the same person as Ms Galanopoulos, sufficient doubt remains as to whether an exception to the general rule could be made for the applicant's sons.
In this particular case, having regard to the evidence before me with respect to the hardship to the applicant's family, as well as to the other matters relied upon by the applicant referred to above at [37], I am satisfied that cause has been shown.
Turning to the consideration of the bail concerns, I accept the Director's submission that two bail concerns in particular are present in this matter. The first bail concern is that the applicant may fail to appear at court if released on bail. It seems to me that the case against the applicant is strong, even allowing for the fact that the court has only been provided with the Crown Case Statement. Consistent with my assessment on this issue, it is to be noted that the committal proceedings have twice been adjourned on the basis that plea negotiations are on foot. It is anticipated that the applicant will plead guilty to at least some of the offences with which he has been charged.
The more significant bail concern is that the applicant may commit further serious offences if released on bail. The unchallenged evidence before the Court is that the applicant is a member of the Rebels OMCG. The experience of the courts is that such affiliations can mean that the applicant has access to criminal sources to continue in his drug trade. The suspicion held by police that the applicant has been living off the proceeds of supplying prohibited drugs is strengthened to some small extent by the fact that the applicant was otherwise not employed during the relevant period. Mr Khatiz submitted that the applicant was previously unemployed and that his wife was supporting him. I am satisfied that there is a bail concern that the applicant would continue drug dealing if released. The question is whether that bail concern, as well as the concern that he may not appear in answer to his charges, amounts to an unacceptable risk.
The conditions advanced were stringent. They included, among other things, restrictions amounting to house arrest, reporting obligations, non-association with co-accused, a requirement to surrender his passport and not apply for any other travel document, a requirement that he use only one mobile telephone, and a curfew enforcement condition. The imposition of a curfew enforcement condition means that police would be able to attend the applicant's home at any time to ensure that he is complying with his curfew condition. In addition, his elderly parents would provide their home as security for a surety in the amount of $620,000.
When assessing the bail concerns, I have had regard to all of the matters in s 18(1) of the Bail Act. The material going to those relevant factors pulls in different directions. The applicant's criminal history and criminal associations, the seriousness of the charges, the strength of the prosecution case and the likelihood of a significant term of imprisonment being imposed weigh in favour of finding that the bail concerns amount to unacceptable risks. On the other hand, the applicant has strong family ties, has never breached bail in the past, needs to be free to look after his children and has advanced strict bail conditions that could address any bail concerns in accordance with s 20A of the Bail Act. In particular, I have had regard to the significant needs of the applicant's children as being relevant to his need to be at large. The need to care for them weighs against him fleeing the jurisdiction.
Any grant of bail applies only until the matter is next in court. It is always open to the Director to make a detention application under s 50 of the Bail Act if the relevant factors in s 18(1) of the Bail Act change. Further matters that may change the circumstances relevant to both tests would be if there was a plea of guilty, or if there was evidence that the condition of the applicant's sons had improved such that two adults were not required to care for them.
Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, "The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk." I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk.
I note that, after the Court had indicated that it proposed to grant bail, the Director asked that there be additional conditions that the applicant not approach or contact any member past or present or associate of any outlaw motorcycle gang and that any guard dogs at the applicant's home be contained in order for the police to attend to enforce the curfew and residence requirements. Those conditions were incorporated into the final order.
Finally, I make the observation that this application is being heard de novo and as such there is no need to demonstrate error in the detailed reasons of Bellew J, who refused the applicant's release application on 15 May 2017. It is nonetheless relevant to note in passing that, when the application was before Bellew J, there was no evidence as to why the applicant's two adult daughters could not assist their mother. Nor was there any evidence regarding the difficulty in obtaining community assistance. That evidence was adduced for the first time on this application.

The Bail Act

Part 3 of the Bail Act deals with the making and variation of bail decisions. Division 1A (ss 16A and 16B) deals with the "show cause requirement" for certain types of offences. That division was inserted into the Bail Act as an amendment and commenced operation on 28 January 2015. Section 16A(1) provides that a bail authority considering a bail application for a "show cause offence" must refuse bail unless the applicant shows cause why his or her detention is not justified. Section 16B(1) lists the offences that are "show cause" offences for the purposes of s 16A(1). The applicant must show cause why his detention is not justified because he has been charged with an offence involving the supply of a commercial quantity of a prohibited drug: s 16B(1)(f) of the Bail Act.
Section 16A(2) of the Bail Act provides that, if an applicant for bail does show cause why his or her detention is not justified, the bail decision must be made in accordance with Division 2 of the Bail Act. Division 2 (ss 17 to 20A) deals with the "unacceptable risk test", which applies to all offences. Section 17(1) provides that the court must, before making a bail decision, assess any "bail concerns". Section 17(2) goes on to set out four bail concerns for the purposes of the Bail Act, being concerns that, if the applicant were released from custody, he or she would: (a) fail to appear at any proceedings for the offence; (b) commit a serious offence; (c) endanger the safety of victims, individuals or the community; or (d) interfere with witnesses or evidence.
Section 18(1) of the Bail Act provides a list of matters that the bail authority is required to consider in assessing the relevant bail concerns. Those are the only matters to be considered in assessing bail concerns. Section 19(1) provides that bail must be refused if the bail authority is satisfied, on the basis of an assessment of the bail concerns, that there is an "unacceptable risk". Section 19(2) provides that an "unacceptable risk" is an unacceptable risk that, if released, the applicant will (a) fail to appear at any proceedings for the offence; (b) commit a serious offence; (c) endanger the safety of victims, individuals or the community; or (d) interfere with witnesses or evidence. Section 19(3) provides that, in applications involving show cause offences, the fact that the applicant has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.
Section 67(1)(e) of the Bail Act provides that this Court may hear a bail application for an offence if a bail decision has been made by the Supreme Court. It is accepted that such an application is a de novo application and there is no need to demonstrate error: R v Marcus [2016] NSWCCA 237 at [27]. This Court has had occasion to consider Part 3 of the Bail Act in a number of decisions, including Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 ("Mawad"); Director of Public Prosecutions (NSW) v Tikomaimaleya ("Tikomaimaleya") [2015] NSWCA 83; Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247; McAndrew v R [2016] NSWCCA 58; R v Marcus; and R v S [2016] NSWCCA 189.
The principles derived from those decisions as to how a court is to consider a release application when an offender is charged with a show cause offence were conveniently summarised by Button J in Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 at [51] - [56] as follows: "First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25]. Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act. Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9]. Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63]. Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act. Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions."
In relation to the sixth of the matters to which Button J referred, I would add the observations of Beech-Jones J in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35] as follows: "In Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33] ("Zaiter"), RA Hulme J (with whom Hoeben CJ at CL and Wilson J agreed), noted that decisions of first-instance judges of this Court concerning bail applications published on caselaw have no greater precedent value than any other judgments at first instance. His Honour also stated that discretionary value judgments made in first instance judgments on bail applications do not establish any precedent as the doctrine of precedent is confined to decisions on points of law only (at [32] to [33]). Those observations apply with equal force to bail decisions of the Court of Criminal Appeal, including the outcome in Zaiter itself."
One example of a circumstance that has been held to be relevant to the show cause test is family vulnerability in the absence of the applicant: Mawad at [44]. In Mawad, the applicant's son was severely disabled and his daughter also had special needs. There was evidence before the Court as to the difficulty that the applicant's wife had in caring for the children while he was in custody. Although the Court was satisfied that cause had been shown, it refused bail on the basis of an unacceptable risk that the applicant would commit a further serious offence if he were released on bail.
Finally, I note that, by virtue of s 31 of the Bail Act, the rules of evidence do not apply to release applications. Section 31 provides: "A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence."

Tsintzas v Director of Public Prosecutions

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Judgment (4 paragraphs)

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