Williams v R

MITCHELMORE JA: I agree with Dhanji J.

DHANJI J: Jye Williams, to whom I shall refer as the applicant, has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act). An application made to the Supreme Court was refused on 5 December 2025: see R v Williams (Supreme Court (NSW), 5 December 2025, unrep). That being the case, this Court has jurisdiction to hear the application: s 67(1)(e) of the Act. The Supreme Court, in turn had jurisdiction based on the earlier refusal of bail by the Local Court: s 66(2) of the Act.

Despite the usual nature of this Court’s jurisdiction, the application is not in the nature of an appeal. The application is to be heard and determined afresh: see Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232; (2021) 291 A Crim R 191; R v Kugor [2015] NSWCCA 14; Obeid v R (No 2) [2016] NSWCCA 321.

The applicant is presently 26 years of age. He has been in custody since he was arrested on 8 October 2025, a period of in excess of four months. He stands charged with offences of aggravated kidnapping contrary to s 86(3) of the Crimes Act 1900 (NSW); and robbery with a dangerous weapon, being a firearm, contrary to s 97(2) of the Crimes Act. There is a charge of robbery laid against s 132.3 of the Criminal Code (Cth), however that charge appears to have been laid in error, there being no Commonwealth element to the alleged offending. The aggravated kidnapping and robbery are alleged to have been committed by the applicant on 24 September 2025. Additionally, the applicant is charged with three counts of supply of a prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), together with a charge of possession of a prohibited drug contrary to s 10 of that Act. The drug offences are alleged to have been committed on 8 October 2025. That is the date of the applicant’s arrest.

The prosecution case is set out in a statement of facts which has been tendered on this application. Also tendered in this Court by the prosecution and relevant to its case are various statements and photographs taken from the brief of evidence. It is unnecessary to canvas the prosecution case in detail. In short, the allegation is that on 24 September 2025 the applicant and the complainant met in the carpark of an RSL club pursuant to an arrangement previously made by them. The applicant and the complainant were, at that time, known to one another. This was as a result of, on the Crown case, the applicant having previously supplied the complainant with drugs. On the occasion of this particular meeting, according to the prosecution case, the complainant was to pay the applicant $2,300, that being a debt in relation to a previous drug supply.

On attendance at the carpark, the applicant was in the front passenger seat of the vehicle in which he had arrived. The driver of the vehicle is the alleged co-offender and is said to be the applicant’s brother. The complainant got into the car occupied by the applicant and the co-accused and counted out the sum of $2,200 before realising that he was $100 short. As a result, he went back to his own car before returning and sitting in the back seat of the applicant’s car. At that point, the complainant states that the vehicle’s doors were locked and the co-accused produced a handgun which was pointed at him. It is alleged the co-accused said words to the effect of, “[s]tay calm, don’t panic” and that the applicant asked the complainant how much money he had on him. The complainant said he had $4,000 which he produced from his pocket and gave to the applicant who put the money in a bag.

The complainant was also told to hand his phone to the applicant. Around this point, the applicant accused the complainant of having set him up. This was a reference to the applicant having been robbed whilst apparently in the course of supplying drugs to someone known to the complainant. The vehicle containing the applicant, co-accused and the complainant was driven to a dead-end street. The co-accused got out of the driver’s seat and sat in the rear seat next to the complainant. He is alleged to have said, “I’m going to shoot you in the leg”, and “I’m going to shoot you and drop you at the train station.” It is alleged the applicant then continued to drive the vehicle while the co-accused made threats to the complainant and assaulted him, including by hitting him in the face with the firearm and punching him to the body.

The complainant suffered a laceration under his chin after being hit with the firearm.

The vehicle was eventually stopped at which point the complainant heard the co-accused say, “Jye, let him out”, Jye being the applicant’s first name. The doors of the vehicle were unlocked and the complainant got out.

The next day, 25 September 2025, police spoke to the complainant in relation to an unrelated matter. In the course of speaking with the complainant, the complainant disclosed the incident the previous day. He subsequently provided a statement to the police. Various investigations took place including canvassing for closed-circuit television footage. Following those investigations, on 8 October 2025 police arrested the applicant at his home.

In the course of searching the home, police located approximately 2.8 kilograms of cannabis, 18 grams of methylenedioxyamphetamine or MDA and 42 grams of cocaine. These drugs form the basis of the supply charges. The quantities involved are well over the amounts at which possession of the particular drugs is deemed to be for the purposes of supply pursuant to s 29 of the Drug Misuse and Trafficking Act. Also found was 20 millilitres of a prohibited drug, Trenbolone, resulting in the charge of possession of a prohibited drug.

The applicant submits that the prosecution case in relation to the kidnapping and robbery charges is weak. Whilst it can be accepted that the prosecution case is dependent on the account given by the complainant, the support given to that account by various pieces of objective evidence has the result that the case appears, on the necessarily limited examination available in the context of a bail application, to be, to me at least, a reasonably strong one. I pause to note that the support obtained from the objective evidence goes to various aspects of the complainant’s account with perhaps the exception of the presence of a firearm. With respect to the drug charges, in the course of an electronically recorded interview, the applicant admitted to possession of the cannabis but said that it was for his own use, thus denying the charge of supplying that drug. In relation to the other drugs, he denied possession. While a property seizure record was tendered on the application, this did not shed any real light on whether the drugs other than the cannabis can be proved to have been in the applicant’s possession, in the context of at least one other adult having access to the house. In my assessment, the strength of the drug charges is uncertain.

I turn then to the tests to be applied on the application. The kidnapping and the robbery offences are show cause offences under the Act. This is as a result of the operation of, in the case of the kidnapping offence, s 16B(1)(d)(i) in that it is a serious indictable offence under Part 3 of the Crimes Act that involves the use of a firearm. In relation to the robbery offence, the show cause provision applies as a result of s 16B(1)(d)(ii) in that it is an indictable offence that involved the unlawful possession of a pistol or prohibited firearm in a public place.

As a result s 16A(1) of the Act requires the applicant to show cause as to why his detention is not justified. The Act does not, at least in express terms, provide the content of the show cause test. Some propositions emerge from the cases.

In Barr (a Pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47, Leeming JA, with the agreement of N Adams J as to this part of his reasons, observed at [85] that the word “justified” is “conspicuously open-textured” but noted that some content is given to the expression by considering how the legislature anticipated it would be applied - that is, by bail authorities, all of which are persons or courts familiar with the basic principles of the Australian legal system.

Those basic principles include the presumption of innocence and the right to be at liberty, matters which are referred to in the preamble to the Act. Basic principles also include the relevance to any decision on bail of the protection of the community, including individual members and the maintenance of the integrity of the criminal justice system. Maintaining the integrity of the criminal justice system includes ensuring accused persons face trial and that witnesses and evidence are not interfered with. The factors that I have mentioned may also be relevant to the unacceptable risk test, a test to which I will return. That is not to say that the two tests are the same.

Firstly, as the Act makes clear, satisfaction of the show cause test will not automatically establish satisfaction of the unacceptable risk test. So much is made plain by s 19(3) of the Act; see also Barr (a Pseudonym) at [101]. Further, while s 18 sets out the exclusive considerations with respect to the unacceptable risk test, matters outside s 18 may be taken into account with respect to the show cause test. Nonetheless, matters relevant to the unacceptable risk test remain relevant to the show cause test albeit that they are not the exclusive considerations: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20].

As Leeming JA said, again with the agreement of N Adams J in Barr (a Pseudonym) at [86]:

Leeming JA immediately went on to note that “even so the legislation leaves it to the wide discretion of the court” to determine if cause has been shown.

Whether it is a discretion or an evaluative judgment may be left to another day, but the point is, there will in any case be a range of matters to consider and be weighed against one another in determining whether cause has been shown.

Returning to the present case, the applicant has tendered a number of affidavits and references from members of his family and people close to him. Based on this material, together with aspects of the prosecution materials, he relies on a combination of matters to show cause.

Adopting my own numbering, the applicant relies on the following factors.

Firstly, he has no relevant criminal record. The only matter on the applicant’s record is for an offence under the Road Transport Act 2013 (NSW) involving spinning the wheels of a vehicle resulting in a fine and licence disqualification.

Secondly, and related to first factor, the applicant has not previously been in custody.

Thirdly, at 26, the applicant is a relatively young man.

Fourthly, there is the length of time in custody the applicant is likely to endure if refused bail. The nature of the charges mean they will be dealt with in the District Court. The matters are, at present, still in the Local Court and will not be committed to the District Court for some months. It is accepted by the prosecution that any trial will not be earlier than March 2027. That is in excess of one year away and close to a year and a half after the applicant’s arrest. Of course, that potential trial date presumes the matter will progress smoothly. Experience tells that is often not the case.

The fifth factor of significance is that the applicant is married with a young family. He, with his wife, have two children aged 4 years and 18 months. To be removed from his family is a significant burden both to him and to them. On a practical level, the applicant’s family, according to the materials, rely on him for financial support. The period the applicant will spend in custody if bail refused takes on a greater significance in the context of the applicant’s family.

The evidence tendered also suggests that beyond his family, the applicant is well connected to his community, having lived in the Central Coast area his entire life. In that regard, there is an additional concern relating to the failing health of his grandmother.

The sixth factor of significance is that the applicant, if released on bail, is able to take up full-time employment.

Lastly, the applicant proposes strict bail conditions, including, what will, in effect, be home detention subject only to very limited exclusions.

These factors, in combination, are significant. While, as I have said, the case appears to be strong in relation to the concerning offences of kidnapping and robbery involving, as they do, violence, apparently strong cases occasionally fail. In any event, a determination of bail is, as has been said many times, not the occasion for a presumptive finding of guilt. Added to this is the reality that time spent in custody on remand will ordinarily be spent in a maximum-security facility regardless of the person’s likely classification after sentence together with the, perhaps associated, concern that there is a reduced availability of access to programs and privileges: see JM v R [2015] NSWSC 978 at [32]-[43].

While paying full regard to the prosecution case and its apparent strength, when the various matters relied upon by the applicant are considered in combination, I am satisfied that cause has been shown.

It remains necessary to apply the unacceptable risk test. Pursuant to s 19 of the Act if I am satisfied on the basis of an assessment of bail concerns the applicant presents an unacceptable risk then bail must be refused. The bail concerns are set out in s 17 of the Act. They are to be assessed having regard only to the matters set out in s 18, which I note, includes the conditions available to mitigate the relevant concerns.

Turning to the first of the concerns in s 17, the risk of the applicant failing to appear. That risk exists having regard to the fact that, if convicted, the applicant faces a custodial sentence. Nonetheless, having regard to the absence of any relevant criminal record, his close ties to the community, particularly through his immediate family and the proposed conditions, including a reasonably substantial surety, I am of the view that the risk is mitigated so as not to be unacceptable.

With respect to the risk that the applicant would commit a serious offence or otherwise endanger the safety of the complainant, individuals or the community, the nature of that risk is informed by the charges against the applicant and my view as to the strength of the case. Relevant to the risk, reliance was placed by the prosecution on the criminal histories and intelligence reports relating to the applicant’s father and his father-in-law, both of whom are significant in the applicant’s life, as well as of the applicant’s proposed employer.

The evidence as to the existence of intelligence reports is at a level of generality that makes it difficult to put any real weight on that evidence. By way of contrast the fact and nature of the prior convictions of persons with whom the applicant is close and will be in contact with, if granted bail, are relevant and I take them into account. Again, however, the absence of any relevant criminal history on the part of the applicant together with the conditions proposed are significant. Without going into the detail of the criminal histories of the applicant’s relatives and his proposed employer, they are not so extensive as to overwhelm these positive factors.

Additionally, the approximately five months the applicant has spent in custody is likely to have had a salutary effect on him were he otherwise minded to engage in criminal activity. In the context of the consequence of a refusal of bail, the risks of the commission of a serious offence or endangering of the community are, in my view, mitigated so as not to be unacceptable.

Finally, s 17 of the Act refers to the risk that the applicant will, if granted bail, interfere with witnesses or evidence. As I have said, the complainant is a person that was known to the applicant. Further, that association was in the context of the supply of prohibited drugs. That said, the complainant has taken the step of involving the police and made a police statement. The applicant would be aware that any attempt to contact the complainant will result in his bail being breached and an almost certain return to custody. Not only that, there is also the prospect of any such contact being used in evidence against him in furtherance of the prosecution case, not to mention the prospect of a further and extremely serious criminal charge. Those matters, together with the proposed conditions are, in my view, sufficient to mitigate the risk of interference with witnesses or evidence. That being the case, I propose that bail be granted subject to the following conditions.

COLEMAN J: I agree with Dhanji J.

MITCHELMORE JA: Accordingly bail is granted on the conditions that Dhanji J proposed.