R v Saenz de Heredia [2017] NSWDC 293

R v Saenz de Heredia [2017] NSWDC 293

Although the accused showed cause why detention was not justified, particularly because of the likely lengthy period in custody before retrial and the fact that the first trial ended with a jury unable to reach a verdict, the proposed condition requiring residence in immigration detention was not available under the Bail Act 2013 (NSW). Given the accused's serious history of non-compliance with bail, limited ties to Australia, seriousness of the offence, and the limited conditions that could lawfully be imposed, he remained an unacceptable risk of failing to appear and bail had to be refused.

Jurisdiction
Australia
Judgment Date
09 August 2017
Procedural Posture
Criminal Bail Release Application / Application for Release to Bail Pending Retrial After Jury Discharged
Outcome
Release application declined; bail refused.
Legal Topics
['show Cause Offence' 'unacceptable Risk' 'risk of Failing to Appear' 'bail Conditions' 'immigration Detention as Bail Condition']
['criminal Law' 'bail' 'immigration Detention'] ['show Cause Offence' 'unacceptable Risk' 'risk of Failing to Appear' 'bail Conditions' 'immigration Detention as Bail Condition']

Case Brief

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Procedural Posture

Criminal Bail Release Application / Application for Release to Bail Pending Retrial After Jury Discharged

Legal Issues

  1. 1 ['Whether the accused had shown cause why his detention was not justified for a show cause offence under s 16B(1)(e)(i) of the Bail Act 2013 (NSW).' 'Whether the accused remained an unacceptable risk within s 19 of the Bail Act 2013 (NSW).' 'Whether a bail condition could require the accused to reside at Villawood Detention Centre or another immigration detention centre.' 'Whether proposed conditions were sufficient to address the risk of flight, interference with witnesses or evidence, and endangering victims or the community.']

Ratio Decidendi

Although the accused showed cause why detention was not justified, particularly because of the likely lengthy period in custody before retrial and the fact that the first trial ended with a jury unable to reach a verdict, the proposed condition requiring residence in immigration detention was not available under the Bail Act 2013 (NSW). Given the accused's serious history of non-compliance with bail, limited ties to Australia, seriousness of the offence, and the limited conditions that could lawfully be imposed, he remained an unacceptable risk of failing to appear and bail had to be refused.

Court Disposition

Release application declined; bail refused.

Orders

  • ['The accused remains an unacceptable risk.' 'Bail is refused.']