R v Hird

At the hearing of Ms Hird’s second bail application, a question arose as to the proper construction of s 74 of the Bail Act 2013 (NSW). That arises for consideration in this case, because Ms Hird has made a prior application which was refused by Wilson J on 6 April 2017, at a time when entry into a six month residential drug rehabilitation program was advanced as a consideration of bail, as it was also sought to be on this further application: see R v Hird (Supreme Court (NSW), Wilson J, 6 April 2017, unrep).

Section 74 provides:

In the Second Reading Speech of the Bail Bill 2013 (NSW), when s 74 was enacted, the Attorney General said:

In the Second Reading of the Bail Amendment Bill 2014 (NSW), when s 74 was amended, the Attorney General said:

In issue between the parties was whether the matter still being in the Local Court, a co-accused having been charged and the parties having embarked on plea negotiations, which on Ms Hird’s case was anticipated would result in the matter being committed for sentence when it next came before the Local Court, fell within s 74(3)(c).

A change in circumstance was also submitted to have flowed from the decision in Robertson v R [2017] NSWCCA 205. In that case the conclusions reached in EF v R [2015] NSWCCA 36 were followed, the Court concluding that the sentencing judge had erred in holding that precedent required that “trafficking in drugs to a substantial degree”, absent “exceptional circumstances”, required a sentence of full-time imprisonment to be imposed, without giving consideration to the sentence being served by way of an intensive correction order

It was common ground between the parties that the result of plea negotiations could establish a change in circumstance relevant to the grant of bail under s 74(3)(c). That must be accepted. A change in the charges laid or pressed against an accused, or entry of a plea by an accused, can all establish such a change.

That is because on every application for bail, the bail concerns which the applicant poses must be assessed and bail must be refused, if it is concluded that the applicant poses unacceptable risks of failing to appear; of committing a serious offence; of endangering the safety of victims; individuals or the community; or of interference with witnesses or evidence: s 19. The matters which must be considered in making such an assessment are those specified in s 18(1), namely:

That the mere entry into discussions about the possibility of a plea being entered, is a change in circumstances “relevant to the grant of bail” was, however, in issue.

I am satisfied that the Crown and an accused merely commencing such negotiations, which may or may not result in any agreement, does not satisfy the statutory requirement specified in s 74(3)(c).

In R v Farrell [2016] NSWSC 1278 McCallum J took the view that a change in trial date amounted in that case to changed circumstances: at [8]. In R v Daniel [2014] NSWSC 1968 Button J accepted that the time that had elapsed in that case, since the first bail application was refused, constituted a “change in circumstance”: at [9]. In R v Tasker (No 2) [2015] NSWSC 467 Button J concluded that the entry of pleas of guilty established that circumstances had changed, indeed changed significantly. That , however, led his Honour to the result that it was no longer open to conclude that the applicant had shown cause why his detention was not justified: at [21].

In this case, given all that arose for Wilson J to consider on Ms Hird’s first application, I am satisfied that a co-accused having since been charged and that there are now plea negotiations on foot, which may lead to entry of a plea, does not establish a change “relevant to the grant of bail”. The position will be different if those negotiations have an outcome which results in either an alteration in the charges laid or pressed, or Ms Hird entering a plea.

I am also satisfied that the conclusions reached in Robertson v R, do not give rise to a change in circumstances relevant to the grant of bail in Ms Hird’s case.

Given the serious drug offending with which Ms Hird has been charged and the limited circumstances in which an intensive corrections order can be imposed on an offender, it is not apparent that what was decided in Robertson will be of practical relevance to her sentence, if she is convicted of the present charges. In any event, not only was Robertson concerned with sentencing, rather than bail, it followed what was decided in 2015 in EF. That this decision resulted in any change “relevant to the grant of bail” in Ms Hird’s case, accordingly does not follow.

In the result, I consider that the Court cannot entertain Ms Hird’s second application, s 74 providing as it does that the Court must refuse to hear the application, Ms Hird not yet having grounds for a further release application of the kind specified in s 74(3).