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The man accused of
causing the deaths of several passengers after the bus he was
driving overturned in the Hunter Valley last Sunday night has been
granted strict conditional bail.
58-year old Brett Button from Maitland in the Hunter Region was
driving 36 passengers back to their accommodation in Singleton when
the bus lost balance on a roundabout near the Hunter Expressway
off-ramp at Greta at around 11.30pm on 11 June 2023 and fell
sideways, killing 10 passengers and injuring more than 20 more
– two of whom remain in a serious condition.
Mr Button was charged with 10 counts of
dangerous driving occasioning death, as well as driving in a
dangerous manner and negligent driving occasioning death, and was
refused bai by officers at
Cessnock Police Station.
His legal representative applied for his release on bail in
Cessnock Local Court yesterday morning.
The application was opposed by the police prosecutor due to the
seriousness of the charges and alleged strength of the prosecution
case.
However, Magistrate Robyn Richardson was saw fit to grant bail
on strict conditions given, among other considerations, Mr
Button’s prior good character, his links to the local
community, the likely duration of the proceedings and the clear
suffering the defendant is going through.
Her Honour stated:
“It is clear to this court he [Mr Button] suffers along
with the rest of the community … I see before me a man
suffering”, adding “bail should not be denied as a
punishment.”
Mr Button is required to report to police on a regular basis, to
abide by a curfew and his driver licence has been suspended by
police.
The
Cessnock community as well as the wider Hunter Region has been
shaken by the incident, but has at the same time come together to
support those directly impacted.
Mr Button is scheduled to return to court in August.
Bail in New
South Wales
After a person is arrested, taken into custody and charged with
a criminal offence, police will need to decide whether to release
him or her from custody on a commitment to attend court at a
specific time, date and place.
This promise is known as ‘bail’.
If police refuse to release the person on bail, they will need
to bring him or her before a court as soon as practicable where an
application for bail – now known as a ‘release
application’ can be made.
‘Show
cause’ offences
For certain serious offences and situations, the person applying
for bail will need to firstly ‘show
cause’ as to why his or her detention is not justified; and
overcoming this show cause test is something best left in the
hands of
experienced bail lawyers.
‘Unacceptable risk’ test
For all offences, a test known as the
‘unacceptable risk test’ is applied, whereby the court
is required to determine whether any ‘bail concerns’ are
not able to be overcome by bail conditions.
The
bail concerns relevant to a determination of bail are any
concern that the person applying for bail will, if released:
- Fail to appear in court,
- Commit a serious offence,
- Endanger the safety of any person or the community, or
- Interfere with witnesses or evidence.
Matters taken
into account when determining bail
When assessing bail concerns for the purpose of granting or
refusing bail, a
court is permitted to consider the following matters:
- The defendant’s background, including criminal history, and
community ties, - The nature and seriousness of the alleged offence/s,
- The strength of the prosecution case,
- Whether the defendant has a history of violence,
- Whether the defendant has previously committed a serious
offence while on bail, - Whether the defendant has previously complied with orders such
as bail conditions, parole conditions, apprehended violence orders,
good behaviour bonds, community service orders, conditional release
orders and supervision orders, - Any warnings by police or other bail authorities that the
defendant has failed or was about to fail to comply with a matter
that is relevant to a bail concern, - Whether the defendant has criminal associations,
- The length of time the defendant is likely to spend in custody
if bail is refused, - The likelihood of a custodial sentence if the defendant is
convicted, - Where the defendant has been convicted and the matter has been
set down for sentencing proceedings, the likelihood of a custodial
sentence being imposed, - Where the defendant has been convicted and sentenced, and an
appeal has been filed, whether that appeal has a reasonably
arguable prospect of success, - Any special vulnerability or needs of the defendant including
due to his or her youth, being a First Nations person, or having a
cognitive or mental health impairment, - The defendant’s need to be free to prepare for his or her
appearance in court or to obtain legal advice, - The defendant’s need to be free for any other lawful
reason, - The defendant’s conduct towards the victim/s, or any family
member/s or the victim/s, after the alleged offence/s, - In the case of a serious offence, the views of any victim/s, or
any family member/s of the victim/s, to the extent this is relevant
to a concern that the defendant may endanger the safety of a
victim/s, individuals or the community, - The bail conditions that are available to address any bail
concerns, - Whether the defendant has associations with a terrorist
organisation/s, - Whether the defendant has made statements or carried out
activities advocating support for terrorist acts or violent
extremism, - Whether the defendant has associations or affiliation with any
person/s or group/s advocating support for terrorist acts or
violent extremism, - Whether the alleged offence is considered to be a serious
offence due to, among any other relevant things, its sexual or
violent nature, or the fact it involves an offence weapon or
instrument, or has a likely affect on any victim/s and the general
community, or the alleged offences are numerous.
Mr Button
It is clear that several factors weigh heavily in his favour
including his lack of a criminal history (and therefore any breach
of an order), his strong ties to the local community, the likely
length of time a case involving so many alleged victims and
considerable investigations will take to go through the courts, the
fact it could not be considered a crime of violence, his need to be
free to prepare his case and the lack of any evidence of
associations or other concerns listed, despite the seriousness of
the allegations.
It should also be noted that proving the offence of dangerous
driving can be difficult for the prosecution in circumstances where
Mr Button tested negative to both alcohol and drugs, and legal
defences including specific statutory defences as well as general
legal defences will be available to him.
That said, there is an argument that the prosecution case for
the offence of dangerous driving is not as strong as many might
think despite the catastophic consequences of the incident, and it
is hoped Mr Button does not simply plead guilty to an
incorrect criminal offence out of guilt and remorse in order to
punish himself and try to make up for what he feels he is
responsible for.
Indeed, if the evidence does ultimately establish some form of
criminal liability, there are many offences that are far less
serious than
dangerous driving occasioning death that may be more
appropriate.
The decision
regarding bail
A court must refuse bail if, after considering the above
matters, there
remains an unacceptable risk of one or more of the
previously-listed bail concerns.
If there are no such unacceptable risks, a
court must grant bail (with or without conditions), release the
applicant without bail or dispense with the requirement for bail
altogether.
Need a lawyer
for a bail application?
If your friend or loved-one is going to court for a bail
application, or if you are concerned you may be arrested and
refused bail at the police station, call Sydney Criminal Lawyers
anytime for accurate advice and exceptional representation by
criminal defence lawyers with vast specialist experience in all
aspects of bail, and who
regularly achieve bail in
extremely serious and complex criminal cases.
Our lawyers represent clients throughout New South Wales,
including in the Sydney Metropolitan Area, Wollongong, Newcastle
and on the weekend in Parramatta Bails Court.
Fixed
fees are available for bail applications across the state.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.