Citation: R v Claxton [1999] NSWSC 653
Court: Supreme Court of New South Wales, Common Law Division
Date: 29 June 1999
Judge(s): Dunford J
Background
The applicant had been convicted by jury of receiving and sentenced to penal servitude with a minimum term of one year commencing 3 October 1998 and an additional term of one year. He sought bail pending the hearing of his appeal against conviction, which had been adjourned that morning because Legal Aid Commission counsel had not yet assessed his prospects of success.
The applicant's minimum term was due to expire on 2 October 1999, approximately three months away, and it appeared unlikely the appeal would be heard before then. He also raised a personal circumstance: his seven-year-old daughter had allegedly been sexually assaulted over the preceding weekend, and he wished to provide her support.
Legal Issues
- Whether "special or exceptional circumstances" existed under s 30AA of the Bail Act 1978 sufficient to justify granting bail to a convicted appellant
- Whether the applicant's grounds of appeal had sufficient prospects of success to support bail
- Whether the risk of further offending while on bail weighed against granting bail under s 32 of the Bail Act 1978
Decision
Dunford J confirmed that, following conviction, there is no presumption in favour of bail under the Bail Act 1978. As an appellant to the Supreme Court, the applicant was required to establish "special or exceptional circumstances" before bail could be granted under s 30AA.
The court accepted that a special or exceptional circumstance existed: if bail were refused, the applicant would have served virtually the entire sentence before the appeal was heard. However, Dunford J emphasised that the existence of such a circumstance does not automatically entitle an applicant to bail. The court is still required to consider the criteria in s 32, including the likelihood of further offending.
On that question, Dunford J was not satisfied bail should be granted. The applicant had an extensive record of dishonesty offences spanning decades, and the offence the subject of the appeal was alleged to have been committed only three weeks after his release from a prior custodial sentence. The court found a significant risk of further offending if the applicant were released.
The court also assessed the grounds of appeal briefly and found none had strong prospects of success. The trial judge's directions on the onus of proof, the elements of receiving, and circumstantial evidence appeared standard and adequate. The ground that the Crown had not sufficiently proved the horse float was stolen was not regarded as having reasonable merit given the identifying evidence led at trial. The application was dismissed and bail refused.
Orders Made
- The bail application was dismissed and bail refused.
- The hearing of the appeal was ordered to be expedited, with the matter to be placed in the first available callover.
Key Takeaways
- Under s 30AA of the Bail Act 1978, a convicted appellant must establish "special or exceptional circumstances" before bail will be granted by the Supreme Court.
- A finding that special or exceptional circumstances exist (including that most of a sentence will be served before appeal) does not automatically result in bail being granted; the court must still weigh the criteria in s 32, including the risk of further offending.
- Where grounds of appeal lack reasonable prospects of success, this weighs significantly against a bail grant, even where a sentence is nearly complete.
- Refusing bail on the basis of reoffending risk, the court gave particular weight to the pattern of offending continuing immediately upon prior release from custody.
- Personal hardship circumstances, such as a family member requiring support, may be acknowledged but do not necessarily constitute grounds sufficient to override reoffending risk or weak appeal prospects.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), ss 8(2)(a)(iii), 9(2)(b), 13, 30AA, 32
Cases:
- R v Wilson (1994) 34 NSWLR 1
- R v Lance Smith (Hunt CJ at CL, 18 May 1993, unreported)