Simpson v R (No 2)

THE COURT: Neil Andrew Simpson (the applicant) has applied for a variation of his bail pursuant to s 51 of the Bail Act 2013 (NSW). The applicant was granted conditional bail in this Court on 10 November 2021: see Simpson v R [2021] NSWCCA 264.

A court, including this Court, has the power to hear a variation application in relation to an earlier bail decision made by it: s 63(1) of the Bail Act. The power to vary the applicant’s bail in this case is not limited to this Court. A court in which the proceedings are pending, in this case the District Court, also has the power to hear a “bail application”: s 61 of the Bail Act. A “bail application” includes a variation application: s 48 of the Bail Act. However, the power of the District Court to hear an application in the present circumstances, a bail decision having been made by this Court, is limited by s 69 of the Bail Act which would require the applicant to satisfy the District Court that “special facts or circumstances justify the hearing of the application”. While it may be that that test would be satisfied in the present case, for the reasons below the Court is satisfied that it should hear, and grant, the application.

In this case it was the intention of the Court that the applicant be released to bail, albeit on stringent conditions. The applicant has, however, not been able to enter his bail. The parties have very helpfully cooperated and agreed to variations which will allow him to enter his bail without, in our view, materially increasing the risk with respect to the bail concerns in s 17(2) of the Bail Act. The variations include a deletion of condition (g) which required the applicant to surrender any current passport. The respondent has conducted investigations and established there is no current passport. While that fact makes the deletion of this condition strictly unnecessary, it is preferable that it be deleted so as to avoid any potential delay in the applicant’s release.

The other variations will facilitate the applicant’s compliance with the conditions without overburdening his elderly parents. The Court considers that the applicant does not present an unacceptable risk within s 19 of the Bail Act if the conditions of bail previously granted are varied as agreed by the parties.

The Court orders: