Citation: R v Gregory William Jacobs [2008] NSWSC 417
Court: Supreme Court of New South Wales (Common Law Division)
Date: 30 April 2008
Judge(s): Rothman J
Background
The accused was charged with murdering his wife by strangulation. He pleaded not guilty, relying on self-defence and, alternatively, provocation. The alleged killing occurred when the estranged wife came to the accused's home to collect their child.
The accused was a partial paraplegic, having suffered a waterskiing accident in 1982 that was later aggravated by a motor vehicle accident in 1997. He could walk only approximately 50 metres, and only with difficulty. Medical evidence from Professor Yeo indicated that his health needs were not being met in custody and that his condition was seriously deteriorating.
The application was heard by video link to Parklea Correctional Centre and opposed by the Crown.
Legal Issues
- Whether the accused had demonstrated "exceptional circumstances" under section 9C of the Bail Act 1978, which is required before bail can be granted to a person charged with murder
- What the term "exceptional circumstances" means in the context of a murder charge under section 9C, and whether it diverges from the approach taken in earlier cases
- Whether the accused's medical condition, criminal history, and the circumstances of the alleged offence, taken together, could satisfy that test
Decision
Rothman J began by clarifying the relationship between the "exceptional circumstances" test in section 9C and the general bail considerations in section 32 of the Bail Act 1978. His Honour concluded there was no real divergence between the Court of Appeal's reasoning in Germakian and the approach of Johnson J in Young. Mere satisfaction of the section 32 balancing exercise is not sufficient to constitute exceptional circumstances, but exceptional circumstances can arise from the accumulation of factors that would otherwise be weighed under section 32.
On the medical evidence, Rothman J accepted Professor Yeo's evidence that the accused's health needs were not being met in custody and that his condition was seriously deteriorating. However, his Honour was explicit that the medical circumstances alone would not have satisfied the exceptional circumstances test.
Rothman J found that an accumulation of factors, taken together, did satisfy the test. These included: the accused's complete absence of any prior criminal record; evidence of prior violence by the deceased toward the accused; the domestic context of the alleged offence; the absence of any real threat to the community from conditional release (with the exception of a potential risk to the integrity of the child's evidence, which strict conditions could address); and the serious deterioration of the accused's health in custody. His Honour also noted that the Crown case could not be described as weak, but that guilt remained a matter for a jury.
Bail was granted on very strict conditions described by Rothman J as amounting to "almost house arrest," designed specifically to protect both the child and the integrity of the child's evidence.
Orders Made
- Conditional bail granted to the accused on very strict conditions, described as equivalent to almost house arrest
Key Takeaways
- Under section 9C of the Bail Act 1978, a person charged with murder cannot be granted bail unless the court is satisfied that "exceptional circumstances" exist; this threshold is deliberately higher than the standard section 32 balancing exercise.
- Rothman J confirmed that exceptional circumstances are not limited to a single extraordinary factor but can arise from the coincidence of multiple factors, including subjective features of the applicant, the nature of the alleged offence, and the likelihood of the applicant answering bail.
- Serious deterioration of health in custody, without additional factors, was held to be insufficient on its own to constitute exceptional circumstances in a murder bail application.
- The Supreme Court found no substantive divergence between the Court of Appeal's reasoning in Germakian and the approach taken in Young: both decisions require something beyond mere satisfaction of the section 32 criteria, while both allow that exceptional circumstances may emerge from an accumulation of those factors.
- In granting bail, the court imposed near-total restrictions on liberty, reflecting the seriousness of the charge and the need to protect both a child witness and the integrity of that child's evidence.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), particularly sections 9C, 9D, 32, 8A, and 30AA
Cases:
- Commonwealth DPP v Germakian [2006] NSWCA 275
- R v Young (2006) NSWSC 1499
- R v Daron John Wright (unreported, 7 June 2005)
- R v PDR (unreported, 1 August 2007)