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Court of Criminal Appeal 4 March 2002

Regina v MFA

[2002] NSWCCA 49

Sexual offencesAssault & violence
"SPECIAL OR EXCEPTIONAL CIRCUMSTANCES"

Citation: Regina v MFA [2002] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 4 March 2002
Judge(s): Buddin J (primary judgment); Stein JA and Dowd J agreeing

Background

The applicant had been convicted after a jury trial of assault and committing an act of indecency upon a 15-year-old male, and of homosexual intercourse with the same person. He was acquitted on seven other counts in the same indictment. The sentences imposed included a head sentence expiring in September 2003, with a non-parole period ending 22 December 2002.

The applicant appealed to the Court of Criminal Appeal, during which time he was released on bail. That appeal was dismissed in March 2001, and he was returned to custody. He subsequently applied for special leave to appeal to the High Court of Australia, which was granted in February 2002.

With his non-parole period due to expire in December 2002 and the High Court appeal unresolved, the applicant applied to the Court of Criminal Appeal for bail pending the High Court proceedings.

  • Whether the Court of Criminal Appeal had jurisdiction to grant bail pending an appeal to the High Court
  • Whether the applicant could establish "special or exceptional circumstances" under section 30AA of the Bail Act 1978 (NSW), the threshold required for such bail to be granted

Decision

The Court confirmed its jurisdiction to grant bail under section 30(e) of the Bail Act 1978, which covers persons convicted of an offence in respect of whom an appeal to the High Court is pending. The elevated threshold in section 30AA applied: bail at this stage cannot be granted unless special or exceptional circumstances are established.

The Court applied the analytical framework from R v Velevski [2000] NSWCCA 445, which in turn drew on factors identified by Callinan J in Marotta v The Queen (1999). The applicant's counsel did not rely on any single decisive factor, but advanced a combination of circumstances. These included: the grant of special leave (indicating the appeal raised questions of substance); the substantial portion of the custodial sentence already served; the applicant's previous compliance with bail conditions, including during the earlier CCA appeal; and the prospect of a "hollow victory" if the appeal succeeded after the sentence had been served.

The Court was particularly influenced by the uncertainty surrounding the hearing date. The evidence indicated that a High Court hearing before the August or September sittings was only "possible" rather than "likely," making it improbable that a decision would be handed down before the non-parole period expired in December 2002. Buddin J noted the real distinction, acknowledged in Marotta, between the custodial and non-custodial portions of a sentence, and that both are properly considered in bail applications of this kind.

Taking the circumstances in combination, Buddin J concluded that the applicant had satisfied the requirements of section 30AA and was entitled to bail. Stein JA and Dowd J agreed.

Orders Made

  • Bail granted on the following conditions:
  • Reside at a specified address in Ruse
  • Surrender passport (if applicable) and not apply for a further passport
  • Be of good behaviour
  • Report to Campbelltown Police Station on Mondays, Wednesdays, and Fridays each week
  • Not associate, communicate, or attempt to communicate with any Crown witnesses
  • Prosecute the High Court appeal with due diligence
  • Surrender to the Sheriff of the Supreme Court of NSW on the date of the High Court's judgment to comply with any orders made
  • Bail to be entered before a Sheriff of the Supreme Court or the proper officer of the Court of Criminal Appeal

Key Takeaways

  • Under section 30AA of the Bail Act 1978, bail pending a High Court appeal requires the applicant to establish "special or exceptional circumstances," a materially higher threshold than ordinary bail applications.
  • No single factor identified in Marotta v The Queen is, of itself, sufficient to satisfy the test; a court may find the threshold met by considering a combination of factors in their totality.
  • A grant of special leave to appeal by the High Court is a relevant consideration, indicating the appeal raises substantive questions, but it does not alone constitute a special or exceptional circumstance.
  • Where there is meaningful uncertainty about whether the High Court will resolve an appeal before the non-parole period expires, that uncertainty can weigh significantly in favour of bail, given the distinction between custody and the head sentence.
  • Prior compliance with bail conditions, including during an earlier appellate process, is a relevant consideration in assessing whether the elevated bail threshold is met.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 4(2)(a), 4(2)(c), 30(e), 30AA

Cases:
- R v Velevski [2000] NSWCCA 445
- Marotta v The Queen (1999) 73 ALJR 265
- Chew v The Queen (No 2) (1991) 65 ALJR 19
- Parsons v R (1998) 72 ALJR 325
- Robinson v R (1991) 65 ALJR 519