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12
Court of Criminal Appeal 12 May 2010

Petroulias v R

[2010] NSWCCA 95

Fraud & dishonestyPublic order & justice offences

Citation: Petroulias v R [2010] NSWCCA 95
Court: New South Wales Court of Criminal Appeal
Date: 12 May 2010
Judge(s): Hodgson JA, Rothman J, Barr AJ

Background

The applicant had been convicted by jury in December 2007 of two Commonwealth offences: agreeing to receive a benefit that would affect the exercise of his duties as a Commonwealth officer, and unlawfully publishing documents obtained in the course of that role. A more serious fraud charge had been left to the jury but resulted in a hung jury, and the Commonwealth Director of Public Prosecutions later declined to retry him on that count.

The sentencing judge imposed a total head sentence of three years and two months, with a non-parole period of two years commencing on 20 June 2008. By the time the bail application was heard in the Court of Criminal Appeal on 5 May 2010, the applicant's non-parole period was set to expire on 19 June 2010, approximately six weeks away.

The applicant had filed a Notice of Intention to Appeal in August 2008 but did not comply with the procedural requirements to formally initiate the appeal until January 2010. The appeal was expedited and listed for 16 and 17 June 2010. A bail judge of the Supreme Court (Fullerton J) had refused bail in March 2010, and the applicant sought review of that refusal by the Court of Criminal Appeal.

  • Whether the applicant had established "special or exceptional circumstances" as required by s 30AA of the Bail Act 1978 to justify the grant of bail pending an appeal against conviction on indictment.
  • Whether the conditions of the applicant's custody (including restricted access to computers, law libraries, and telephone) constituted circumstances supporting bail.
  • Whether the applicant's deteriorating health, including claimed Bipolar Disorder and Asperger's Syndrome, justified bail.
  • Whether the applicant's prospects of success on appeal were sufficiently strong to amount to special or exceptional circumstances.

Decision

Section 30AA of the Bail Act 1978 imposes a high threshold: bail after conviction on indictment will not be granted unless the applicant establishes that special or exceptional circumstances exist. The Court conducted a hearing de novo, meaning it re-examined the question afresh rather than assessing whether Fullerton J had erred.

On the question of custody conditions, the Court accepted that the applicant lacked meaningful access to a computer and faced limitations on telephone use. However, Barr AJ noted that many accused persons facing serious charges manage to instruct their legal representatives adequately from custody, and the appeal had in fact been prepared and lodged with the assistance of senior counsel. The Court found these difficulties, while real, did not rise to the level of special or exceptional circumstances.

The applicant's health was also considered. Dr Teoh's psychiatric letters were before the Court, but the medical evidence did not establish that the applicant's conditions were unmanageable in custody or that his health presented circumstances of the kind required to satisfy the statutory test.

Regarding prospects of appeal, the Court reviewed the grounds advanced by senior counsel but was not persuaded that they were sufficiently strong to satisfy the exceptional circumstances threshold. The Court also noted that the practical utility of bail was limited given that the non-parole period would expire within weeks in any event, and that an adjournment of the appeal might have been a more suitable course if the applicant's preparation was genuinely inadequate.

Orders Made

  • Bail refused.

Key Takeaways

  • Section 30AA of the Bail Act 1978 imposes a strict threshold: bail pending an appeal against conviction on indictment cannot be granted unless the applicant establishes special or exceptional circumstances, and this test is not easily satisfied.
  • A review under s 45(1)(b) of the Bail Act is conducted as a hearing de novo; the reviewing court does not assess whether the original bail judge made an error, but determines the question afresh.
  • Restricted access to computers, law libraries, and telephone facilities in custody did not, on the facts, constitute special or exceptional circumstances, particularly where an appeal had been prepared with the assistance of senior counsel.
  • Proximity of the non-parole period's expiry was a relevant practical consideration: where release to parole was imminent, the utility of a short bail period weighed against it satisfying the exceptional circumstances test.
  • Unsupported or insufficiently strong prospects of success on appeal, taken together with health difficulties that were not shown to be unmanageable in custody, fell short of the statutory threshold for bail after conviction on indictment.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 30, 30AA, 32(1)(b)(ii), 45(1)(b), 48(3)
- Crimes Act 1914 (Cth), ss 29D, 70, 73
- Criminal Appeal Rules, r 23C
- Jury Act 1977 (NSW), s 68A

Cases:
- R v Pakis (1981) 3 A Crim R 132
- R v Hamill (1986) 25 A Crim R 316
- March v E & MH Stramare Pty Ltd (1991) 99 ALR 423
- R v Royall (1991) 100 ALR 669
- R v Burrell [2007] NSWCCA 65