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6
Court of Criminal Appeal 12 October 2000

R v VELEVSKI

[2000] NSWCCA 445

Also reported as (2000) 117 A Crim R 30
Homicide
BAIL

Citation: VELEVSKI v R [2000] NSWCCA 445
Court: NSW Court of Criminal Appeal
Date: 12 October 2000
Judge(s): Spigelman CJ, Hulme J, Barr J

Background

The applicant had been convicted by a jury of the murders of his wife and three children, who were found stabbed at the family home in June 1994. The defence case at trial was that the wife had killed the children before killing herself, but the jury rejected that account. The Court of Criminal Appeal subsequently dismissed the applicant's appeal against conviction by majority.

The applicant then obtained special leave to appeal to the High Court of Australia. The High Court appeared particularly concerned with the way expert evidence on the ultimate questions (murder or suicide) had been led and presented at trial. The appeal to the High Court was expected to be heard within six to nine months of this application.

With that appeal pending, the applicant sought bail from the Court of Criminal Appeal. The central question was whether he could satisfy the statutory threshold required for bail to be granted in those circumstances.

  • What test applies under the Bail Act 1978 (NSW) to a bail application made while an appeal to the High Court is pending?
  • Whether the applicant could demonstrate "special or exceptional circumstances" justifying the grant of bail under s 30AA of the Bail Act 1978
  • Whether the strength of the grounds of appeal, or the length of incarceration, could constitute special or exceptional circumstances in this case

Decision

Section 30AA of the Bail Act 1978 provides that bail shall not be granted pending an appeal to the High Court from the Court of Criminal Appeal unless the applicant establishes that special or exceptional circumstances exist. The Court traced this elevated threshold to well-established common law principles, which the legislature codified: once a person has been convicted by a jury, the presumption of innocence no longer applies, and the finality of the jury's verdict carries significant weight. Courts have also long recognised the practical risks attending bail after conviction, including the proliferation of unmeritorious appeals and the difficulty of returning a person to custody if their appeal ultimately fails.

Barr J, with whom Spigelman CJ and Hulme J agreed, considered whether the prospects of success on appeal could constitute special or exceptional circumstances. The Court accepted that an appeal's apparent strength is a relevant consideration but concluded it was not sufficient on its own in this case. Although the High Court's grant of special leave indicated some concern about the expert evidence at trial, the Court could not confidently characterise any particular ground as likely to succeed, and the circumstances did not rise to the required threshold.

Hulme J added separate observations about the relevance of delay and cumulative incarceration. His Honour noted that periods of extended delay within the court system could, at some point, amount to or substantially contribute to special or exceptional circumstances. However, in this case a significant portion of the delay was attributable to the applicant's own side of the record, which weighed against him. Hulme J concluded the case was approaching but had not yet reached that threshold.

The application was refused unanimously.

Orders Made

  • Bail application refused.

Key Takeaways

  • Under s 30AA of the Bail Act 1978 (NSW), bail will not be granted by the Court of Criminal Appeal pending a High Court appeal unless the applicant establishes "special or exceptional circumstances." This is a deliberately high threshold reflecting the significance of a jury's verdict.
  • The underlying rationale for the elevated test is that a convicted person no longer enjoys the presumption of innocence, the finality of jury verdicts must be respected, and practical concerns exist around the risks of allowing bail after conviction.
  • A grant of special leave by the High Court, while relevant context, does not automatically constitute a special or exceptional circumstance for bail purposes. The Court of Criminal Appeal cannot be confident about which grounds the High Court considered most significant in granting leave.
  • Prolonged incarceration and systemic court delays may, in appropriate circumstances, contribute to or constitute special or exceptional circumstances. Hulme J observed that there must come a point where excessive delay takes on that character, though it was not reached on the facts here.
  • Where delay is substantially caused by the applicant's own conduct, that factor operates against a bail application even where the overall period of custody is significant.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 30, 30(2), 30AA

Cases:
- R v Giordano (1982) 31 SASR 241
- R v Hilton (1986) 7 NSWLR 745
- Marotta v The Queen (1999) 73 ALJR 265
- Parsons v Regina (1998) 72 ALJR 1325
- R v Robinson (1991) 65 ALJR 519
- R v Wilson (1994) 34 NSWLR 1