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Key cases

2016 cases from Supreme Court

(takes into account amendments)

CaseCase Rationale
R v BNS [2016] NSWSC 350
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Multiple Bail applications – section 74 Bail Act 2013 – change of legal rep not a change in circumstance – increase in surety may constitute a change in circumstances
R v Viavatenne [2016] NSWSC 299
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Application for expedition of bail hearing – health and difficult personal circumstances of family can form basis for expedition – relevance of Crown opposition to bail
R v NK [2016] NSWSC 498
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Terrorism offence – exceptional circumstances – youth of applicant vulnerability to adult influence
McAndrew v Regina [2016] NSWCCA 58
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Show Cause – no sufficient matters identified to show cause

2015 cases from Supreme Court

(takes into account amendments)

Case Case Rationale
Singh v R [2015] NSWCCA 257
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Show Cause – material change in circumstances due to charges being downgraded – combination of factors can constitute cause
DDP(NSW) v Mawad [2015] NSWCCA 227
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Show Cause – show cause is not 'special or exceptional circumstances'. Police views not evidence
R v McCormack [2015] NSWCCA 221
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Show Cause – firearms – combination of factors including disposition at Local Court and fact pre-sentence custody may exceed custodial sentence
DPP(NSW) v Brooks [2015] NSWCCA 190
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Show Cause – murder – reasonable strong case re: ID – nothing 'special or unusual' to amount to showing cause
DPP(NSW) v Campbell [2015] NSWCCA 173
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Show Cause – matter committed for sentence – bail to residential rehabilitation could be perceived as a fetter on sentencing judge
Clinton v R [2015] NSWSC 1953
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Section 22 of the Bail Act does not apply to persons seeking leave to appeal pursuant to 5F
R v Melmeth [2015] NSWSC 1762
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Show Cause – inadequate medical treatment can constitute cause – Justice Health failure to provide medical material regarding adequacy of treatment
R v A2; R v KM; R v Vaziri (No.19) [2015] NSWSC 1700
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Bail granted following conviction by jury – likelihood of custodial penalty live issue at sentence – not show cause
R v Boyd [2015] NSWSC 1065
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Show Cause – combination of issues can constitute cause - delay
JM v R [2015] NSWSC 978
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Show Cause – murder – relevance of police views – Act does not allow refusal of bail due to concern if may fetter decision of sentencing judge – cause established on the basis of youth and delay
[2015] NSWCCA 185 Director of Public Prosecutions (NSW) v Boatswain
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Sets out that terminal illness can constitute show cause but that fears for witnesses can still lead to an overall assessment of unacc risk.
[2015] R  v  Nicholas Anthony BADGER
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HH considers the 'tension' in the authorities in relation to the question of bail in circumstances where someone has pleaded guilty, they are certainly going to be sentenced to gaol, and sentence proceedings are imminent.
[2015] R v Benzce; Yates, NSWSC, McCallum, 18 February 2015
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Show cause - residential rehabilitation can constitute cause.
[2015] R v Ebrahimi NSWSC 335
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Show cause - one step or two step test - qualified application of reasoning
in M v R but pre-R v Tikomaimaleya - electronic monitoring.
[2015] El-Hilli and Melville v R NSWCCA 146
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An application for bail to the CCA after the SC had refused bail, utilising s. 67(1)(e).
[2015] R v Tasker (No2) NSWSC 467
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Show cause - effects of plea of guilty on bail application.
[2015] NSWCA 83 Director of Public Prosecutions (NSW) v Tikomaimaleya
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Court of Appeal case that involves a show cause matter and the court looks at M v R and the position adopted by Mc Callum J. Court of Appeal concludes that it is still a two stage test and that the steps should not be merged but concedes that factors relevant to one decision will still be relevant to the other (para 24).
M v R (2015) NSWSC 138
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A show cause matter where her honour (McCallum J) disagrees with the crown suggestion that bail would "normally or ordinarily be refused" and states in para 10 that the court is "to approach each case on its merits with no presumption as to the likely or proper outcome of the release application". There is other discussion about the merging of the show cause decision and the unacceptable risk decision as discussions of bail concerns naturally arise when setting out how a defendant has potentially shown cause. Use this case if faced with an Iskander type argument from the court or the prosecution.
R v Kugor ( 2015) NSWCCA 14
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CCA decision. Not a show cause matter but involves serious sexual allegations with a reasonably strong crown case and the applicant was on conditional liberty(s.9) at the time of the alleged offending. Despite these factors bail granted due to likely delay pre-trial along with offered bail conditions that "adequately met" the noted concerns. Demonstrates use of s.18(1)(p)
   

Supreme Court of NSW 2014

Case Case Rationale
R v Lago [2014] NSWSC 660
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CRIMINAL LAW - bail - unacceptable risk - mitigation of risk - onus of proof
2014 00129939 - R v S K 2014 00129936 - R v D K
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  • children and special vulnerability s.17(3)(j)
  • balance of risk between special vulnerability and risk to community as result of vulnerability
  • grant of bail not risk free
R v Fesus [2014] NSWSC 770 16 June 2014
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  • NSW Supreme Court Judgment involving the application of the Bail Act 2013 handed down after 20 May 2014
R v HAWI [2014] NSWSC 837
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  • murder
  • re-trial after CCA appeal
  • lengthy time in custody
R v ALEXANDRIDIS [2014] NSWSC 662
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  • onus of proof on prosecution s 20
  • assessment of unacceptable risk s 17
  • grant of bail not risk free
  • evidence must be credible or trustworthy s 31(1)
R v Sarkhel ROKHZAYI [2014] NSWSC 958
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  • involvement in criminal organization means greater risk of flight and commission of serious offences
  • analysis of unacceptable risk assessment and interaction of ss 17(2) & (3)
  • both seriousness and nature of offence to be considered  onus on prosecution s 20

Other jurisdictions

Case Case Rationale

Haidy v DPP [2004] VSC 247 [14-19]
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Two step process to determine unacceptable risk:

  1. identification of risk that has a sufficient likelihood of occurring
  2. balancing exercise between the risk factors to determine if the risk identified is unacceptable.

Mokbel v DPP (No.3) [2002] VSC 393 [10]
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  • Delay before trial is a relevant matter in the assessment of unacceptable risk: see also Lacey v DPP [2007] QCA 413 [13].

Re Magee [2009] VSC 384 [15-26]
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  • The fact that the high risk of re-offending relates to relatively minor offences only is relevant to the assessment of unacceptable risk.
  • Two step process re: unacceptable risk.

Kheir v R [2008] VSC 492 [22]
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  • Weak prosecution case means bail ought be granted.
R v Wakefield 1969 (89 WN) (Pt 1) (NSW) 325
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  • Onus on prosecution to prove bail ought be refused.

Woods v DPP [2014] VSC 1
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  • Onus on prosecution to prove that there is an unacceptable risk.

Dunstan v DPP (1999) 92 FCR 168 [55-56]
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  • There is always risk and it is wrong to approach the risk assessment as an exercise to eliminate risk.
Re ASMAR 2005 VSC 487
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  • primary consideration is attendance & compliance bail
  • Strength of the case is merely one of the factors to consider
DPP v HARIKA 2001 VSC 237
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  • the background of the respondent, his prior convictions, the strength of the case against him, and the history of previous grants of bail, were all relevant
  • detention not be justified if risk of re offending low, case weak, sentenced imprisonment unlikely, use of violence out of character, possibility of re-offending, using a weapon, was remote
  • A's past relevant to show cause consideration
VAN TONGEREN v Office of DPP 2013 QMC 16
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  • Delay, weak prosecution case, personal factors such as urgent or special medical needs or responsibilities relevant to show cause consideration.