R v Mel

HIS HONOUR: Lyheng Mario Mel applies for bail. He was arrested on 4 May 2017 and charged with several offences, including one count of conceal serious indictable offence, two counts of possess prohibited pistol without authorisation and one count of participate in a criminal group. Mr Mel has been in custody bail refused since the date of his arrest. His trial is scheduled to commence in the Sydney District Court on 29 January 2019.

Mr Mel made a bail application on 15 September 2017. That application was refused by Bellew J. As a result, Mr Mel’s application is confronted by the provisions in s 74 of the Bail Act 2013. That provision relevantly provides as follows:

Section 74 was recently considered by Campbell J in R v Fallon (a pseudonym) [2017] NSWSC 1796. His Honour said at [13]–[15]:

I respectfully adopt those views.

Mr Mel relies upon the grounds in ss 74(3)(b) and (c) to overcome the hurdle in s 74(1). In support of that, Ms Caligiore, who appears for Mr Mel, relies upon the following:

As Mr Mel allegedly committed these offences, some of which are serious indictable offences, while he was on bail, he is required to show cause as to why his continued detention is not justified: Bail Act, ss 16A, 16B(1)(h)(i). In the previous bail application, Bellew J was satisfied that Mr Mel had shown cause having regard to delay and the weaknesses in the Crown case, particularly relating to the possess prohibited pistol offences. Despite this, his Honour refused bail on the basis that there was an unacceptable risk that Mr Mel would continue to commit further offences. His Honour considered Mr Mel’s criminal history, which was said to demonstrate his “propensity for violence”. His Honour also expressed “little confidence that the applicant would comply with any condition to which he was made subject”.

The strength of the Crown case was considered by Bellew J in the previous application. His Honour said:

The evidentiary issues identified by his Honour related to DNA evidence found on the pistols. In this respect, his Honour said:

Ms Caligiore contends that the Crown’s case has been further weakened by the cross-examination of Mr Watherston at Mr Mel’s committal. For example, and significantly for present purposes, Mr Watherston conceded that he could not exclude the possibility that Mr Mel’s DNA was transferred to the pistols through a secondary transfer. However, in my view, these are matters that have been canvassed by his Honour in the previous application. The question of who had possession of the guns and at what point in time, and whether the DNA evidence presented by Mr Watherston could prove this, was central to his Honour’s consideration of the strength of the Crown case. Accordingly, this information does not represent “material information” that was not before his Honour on the previous occasion or a relevant change in the circumstances.

The availability of a surety in this case is not relevant in determining whether to grant bail. As the Crown has not alleged that there is a concern that Mr Mel will fail to appear at any future proceedings, s 26(5) of the Act precludes the imposition of a security requirement.

In relation to delay, his Honour said:

His Honour accepted that Mr Mel would spend some time in custody before the matter would be finalised, and this was relevant to the determination that Mr Mel had shown cause. In my view, if his Honour had been aware that the trial might not commence until January 2019, that would not have affected the outcome of the previous application: see R v Fallon (a pseudonym) at [15]. This is so having regard to the fact that the primary basis upon which the application was refused was the unacceptable risk that he might commit a further serious offence. Accordingly, the further delay is not “material information” within the meaning of s 74(3)(b).

The delay also does not represent a change in the circumstances. His Honour adverted to the likelihood of significant delay. The mere fact that the time Mr Mel is to spend in custody awaiting trial has slightly exceeded his Honour’s original estimate does not represent a relevant change in the circumstances for the purpose of s 74(3)(c). The position may be different if, for some reason, the actual delay were to go well beyond what was originally anticipated.

In my view, the conviction of his co-accused is not relevant in determining whether to grant bail to Mr Mel. Although it may have some relevance in relation to the strength of the Crown case, as noted above, that was dealt with by his Honour on the previous occasion.

Mr Mel has failed to overcome the hurdle in s 74(1) of the Act. In these circumstances, bail is refused.