Supreme Court New South Wales

• Medium Neutral Citation: R v Lago [2014] NSWSC 660
• Hearing dates: 21 May 2014
• Decision date: 22 May 2014
• Jurisdiction: Common Law - Criminal
• Before: Hamill J

Decision

Conditional bail granted

• Catchwords: CRIMINAL LAW - bail - unacceptable risk - mitigation of risk - onus of proof
• Legislation Cited: Bail Act 2013 (NSW); Bail Act 1978 (NSW); Crimes Act 1900 (NSW), s 112(3); Firearms Act 1996 (NSW); Evidence Act 1995 (NSW), s 165
• Cases Cited: Beldon v R [2012] NSWCCA 194; Cain (No 1) (2001) 121 A Crim R 365; Dale v Director of Public Prosecutions [2009] VSCA 212; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; M v M (1998) 166 CLR 69; Application of Haidy [2004] VSC 247; Williamson v Director of Public Prosecutions (2001) 1 Qd R 99; Woods v Director of Public Prosecutions [2014] VSC 1
• Category: Procedural and other rulings
• Parties: Crown; Applicant: Lago
• Representation: Counsel: Ms Sharma (Crown); Ms Rigg - Office of the Public Defenders (Applicant); Solicitors: Director of Public Prosecutions; Legal Aid Commission (Applicant)
• File Number(s): 2014/94202
• Publication restriction: Nil

ex tempore Judgment (REVISED)

APPLICATION FOR BAIL

VIDEO LINK TO SOUTH COAST CORRECTIONAL CENTRE

1 HIS HONOUR: Brett Bartholomew Lago applies for bail in respect of a number of extremely serious charges. He is alleged to have committed a series of offences including an offence under s 112(3) Crimes Act 1900 (NSW) in March 2014. In addition to that charge, which is far and away the most serious, he is also charged with a number of offences under the Firearms Act 1996 (NSW). The specially aggravated break and enter offence is a particularly serious allegation. There is a five page statement of facts prepared by investigating police and its contents describe a very serious example of what is sometimes called a "home invasion" type offence.

2 Ms Rigg, of the Public Defenders, who appears for the applicant has indicated that those facts are subject to significant dispute. The offence is alleged to have occurred on 11 March 2014 and the applicant has been in custody since 12 March 2014. His case is next for mention at the Wollongong Local Court on 4 June 2014. It is accepted by the Crown, who was ably represented in this Court by Ms Sharma, that he is likely to "be on remand for some time before facing trial".

3 The application falls to be determined pursuant to the provisions of the Bail Act 2013 (NSW) ("the Act"), which came into operation on Tuesday of this week. The evidence and submissions were taken yesterday, that is Wednesday, and I adjourned overnight to consider my decision. The application is a complex and difficult one. The Act has made significant changes to the approach that bail authorities, and particularly courts, must take when considering applications for release on bail. In accordance with the terms of the Act, bail applications fall into two categories: release applications (s 49) and detention applications (s 50). This, plainly enough, is a release application, bail having been refused by the Local Court.

4 The major change affected by the Act is to remove the complicated series of presumptions which were provided for in the Act 1978 (NSW). The Act focuses on an assessment of risk - what are called "unacceptable risks" - and on the protection of the community, the Court's process and alleged victims and witnesses. In this respect the central provision is contained in s 17 of the Act. That provision is in the following terms:

"Requirement to consider unacceptable risk

(1) A bail authority must, before making a bail decision, consider whether there are any unacceptable risks.

(2) For the purposes of this Act, an

"unacceptable risk" is an unacceptable risk 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) A bail authority is to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk:

(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 pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(g) the length of time the accused person is likely to spend in custody if bail is refused,

(h) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(i) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(j) 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,

(k) the need for the accused person to be free to prepare for their appearance in court or to obtain legal advice,

(l) the need for the accused person to be free for any other lawful reason.

(4) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence (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.

(5) If the person is not in custody, the question of whether there are any unacceptable risks is to be decided as if the person were in custody and could be released as a result of the bail decision."

5 It will be seen that the term "unacceptable risk" is not further defined but that the assessment of whether there is such an unacceptable risk is to be considered by reference to an exhaustive list of factors contained in s 17(3). That section says that those are the only factors to be taken into account in determining the question of whether or not there is an unacceptable risk. The unacceptable risk is directed to the four matters mentioned in s 17(2). Subsection (4) is also important because it provides some of the matters to be considered in determining whether an offence is "a serious offence" for the purpose of s 17(2)(b). The Act, as I see it, does not cast an onus on either party to determine whether there is or is not an unacceptable risk.

6 In helpful written submissions, Ms Rigg submits that there is an onus on the prosecution. I am not sure that that is so but equally I am not sure that it matters. The reason that I say that is because the matter ultimately is to be determined on the balance of probabilities (s32) and, when I come to it, it will be seen that the onus shifts to the prosecution at a more important stage of the reasoning process. If there is no unacceptable risk, bail can be dispensed with or the applicant is to be released without bail or on unconditional bail: s 18. Where there is an unacceptable risk the Court can either refuse bail or grant bail: s 19.

7 Section 20 is a critical provision and it provides that bail can only be refused where the Court is satisfied that any unacceptable risk "cannot be sufficiently mitigated by the imposition of bail conditions". It can be seen that this provision casts the onus on the party who is opposed to the grant of bail. Again, the standard is on the balance of probabilities.

8 The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states, in sentencing cases and also in applications for detention under various statutory schemes: see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1: Fardon v Attorney-General (Qld) (2004) 223 CLR 575 per Gleeson CJ at [22], McHugh J at [34], Gummow J at [60] and Callinan and Heydon JJ at [225]; M v M (1998) 166 CLR 69; Beldon v R [2012] NSWCCA 194 at [53].

9 The cases on bail recognise that "no grant of bail is risk free": see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said:

"Bail when granted is not risk free. Williamson v DPP (Qld).As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld)."

10 In Fardon v Attorney General (Qld) the High Court was concerned with the validity of Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Gleeson CJ said (at [22]):

"It was argued that the test, posed by s 13(2), of "an unacceptable risk that the prisoner will commit a serious sexual offence" is devoid of practical content. On the contrary, the standard of "unacceptable risk" was referred to by this Court in M v M in the context of the magnitude of a risk that will justify a court in denying a parent access to a child. The Court warned against "striving for a greater degree of definition than the subject is capable of yielding". The phrase is used in the Bail Act 1980 (Q), which provides that courts may deny bail where there is an unacceptable risk that an offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision-making process is a meaningless charade."

11 Callinan and Heydon JJ said (at [225]):

"The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one. The Family Court undertakes a similar process on a daily basis and this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) said this in M v M of the appropriate approach by the Family Court to the evaluation of a risk to a child:

'Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm', 'an element of risk' or 'an appreciable risk', a 'real possibility', a 'real risk', and an 'unacceptable risk'. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.'"

12 These comments provide some guidance as to the evaluative task involved in assessing whether there is an unacceptable risk although they must be considered in the context of other relevant provisions of the Act including:

The absence of the rules of evidence and the requirement that the task is to be undertaken by reference to 'any evidence or information that the bail authority considers credible or trustworthy in the circumstances' (s. 31)

The standard of proof is on the balance of probabilities (s. 32)

The only matters that can be taken into account in making the assessment are those mentioned in s. 17(3).

13 While the Act has changed in a significant way the focus of the Court from a series of complicated presumptions to an assessment of risk, certain fundamental concepts and protections that lie at the heart of our criminal justice system remain important. For example, the Act does no violence to the presumption of innocence or to the ultimate requirement of proof beyond reasonable doubt before the State can punish one of its citizens. Further, the length of time that a person is required to remain in custody is specifically required to be taken into account in assessing whether there are or are not unacceptable risks: s. 17(3)(g). The following words of Sperling J in Cain (No 1) (2001) 121 A Crim R 365 at 367 continue to resonate when a bail authority is dealing with a release application where there is expected to be a lengthy delay:

"As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial for a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights."

14 That brings me to the current application. While the applicant is presumed to be innocent, s 17 requires that the seriousness of the offence and the strength of the prosecution case are to be taken into account. In this case the allegation is extremely serious. It involves the entry into private premises by two men, one of whom was armed with a gun. The perpetrators made violent demands and threats to the occupants of the home. It must have been a terrifying experience. One of the perpetrators has, as I understand it, confessed his involvement in the crime.

15 The Act makes it clear that the seriousness of the allegation is a matter that might give rise to an unacceptable risk even though that allegation has not been proved beyond reasonable doubt. It is the very nature of the allegation that may cause the Court to conclude that there are unacceptable risks. Where the allegations include offences of extreme violence such as murder, the Court may conclude on that basis alone that there are unacceptable risks involved in the release of the alleged offender. However, the Act has abolished the requirement that an applicant charged with murder must establish "exceptional circumstances" justifying the grant of bail: s 9C Bail Act 1978. The proposition that the seriousness of the offence itself may give rise to unacceptable risk might also apply to offences such as the one that I am dealing with on this application. It will all depend on a consideration of the relevant factors referred to in s 17.

16 In many cases, and this is one of them, it will be very difficult for the Court to assess the strength of the Crown case, particularly when the application is brought at an early stage.

17 Ms Rigg submits that even on the facts prepared by the police the Crown case is largely reliant on the word of a person who, on his own admission, was criminally concerned in the commission of this violent crime. That person was known to the occupants of the house and presumably nominated by them. There can be no doubt that a substantial attack will be mounted on the credibility of that witness in any future trial proceedings. This drove Ms Rigg to the submission that the Crown case is relatively weak.

18 Ms Sharma, on the other hand, pointed to material in the fact sheet that suggests that there might be some corroboration or independent support for the evidence of the co-accused. That included the finding of a firearm in the possession of the applicant although this firearm was clearly not the gun used in the commission of this offence. Other items of potential relevance - including a firearm which has been identified by the victims as being involved in this offence - were found in a location with which the applicant has some connection and other items, as I say, were found there. However, as Ms Rigg points out, there were other people associated with those premises and that may have included the co-accused.

19 Ms Sharma points to other evidence in the case and notes that the brief is yet to be compiled and served, there may be DNA evidence, and there may be fingerprint evidence. We simply do not know. I have taken those matters into account.

20 Doing the best that I can on the limited material now available, I am not persuaded that this is a strong Crown case. It is not necessarily a weak one, but it seems to me to be a case that could go either way at trial. Reliance on the evidence of a co-offender will result in firm warnings to the jury pursuant to s 165 of the Evidence Act 1995 (NSW), and, as I have said, a substantial attack is likely to be made upon him. He has an interest in giving evidence against the applicant. I have also taken into account the criminal history of the applicant and I note that there is nothing on that record that would give rise by itself to the kind of concerns considered in s 17(2).

21 In terms of the risk of non-appearance the applicant has a previous failure to appear in 2013 and by this alleged offence is said to have breached a bond or suspended sentence. Ms Sharma also points out that the prospect of a lengthy sentence for this offence may motivate the applicant to flee.

22 As I have inferred above, it is apparent that the trial proceedings are most unlikely to occur this year. At this stage I am told that the brief is not yet complete, has not been served and it may include an attempt to obtain DNA evidence, which can take some time. My assessment is that the applicant will be required, if refused bail, to spend at least one year in custody enjoying, as it were, the presumption of innocence.

23 Taking all of those matters into account, as well as other relevant matters set out in s 17(3), I have come to the conclusion that there is an unacceptable risk of the commission of a serious offence and to the safety of the witnesses and the victim. The major reason that I find those risks to exist is the serious nature of the alleged offending and the violence inherent in that offending, along with the applicant's possession of a gun, albeit a gun not associated with this alleged crime.

24 However, Ms Rigg has presented me with a series of conditions that in my view mitigate those risks. Putting it correctly in terms of the onus in s 20 of the Act, I am not satisfied that the unacceptable risk that I have found cannot be mitigated by the conditions that Ms Rigg has proposed.

25 Those conditions will include conduct conditions pursuant to s 25 of the Act and enforcement conditions pursuant to s 30 of the Act.

26 The conduct conditions will include conditions as to where the applicant will live, as well as a curfew. They will require him not to associate with certain named individuals and he will have to report daily to police. They will require him not to have any contact whatsoever with any witnesses and not to go within a certain distance of relevant locations.

27 The enforcement conditions will allow police to attend on his premises and require him to present himself to ensure that he is complying with the curfew. That enforcement condition will include a proviso that the police will only act on the condition where they "believe on reasonable grounds that it is necessary to do, having regard to the rights of other occupants of the premises to peace and privacy".

28 I do not impose any security requirements because I am prohibited from doing so under the terms of the legislation, unless I am of the view that he poses an unacceptable risk of non-appearance: s 26(5). I am not of the view that the applicant is an unacceptable risk of non-attendance. I record my opinion that this is something of a problem in the legislation.

FOR BAIL CONDITIONS SEE COURT FILE

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Decision last updated: 27 May 2014