Citation: Salmon v Regina [2011] NSWCCA 83
Court: Court of Criminal Appeal, NSW
Date: 25 February 2011
Judges: Whealy JA, Hidden J, Johnson J
Background
The applicant had been convicted by jury in December 2009 of three offences arising from a dispute with a victim at her office: larceny of computer equipment, assault, and robbery. He was sentenced in March 2010 to an overall non-parole period of fifteen months, with a balance term expiring December 2011. He remained in custody and filed notices of intention to appeal against both conviction and sentence.
The applicant sought bail pending his appeal. Two earlier bail applications had been refused in the Supreme Court, most recently by Hall J in January 2011. A further review before a single judge of the Court of Criminal Appeal was found to be beyond that judge's jurisdiction under s 45(3) of the Bail Act 1978, which prevents a single CCA judge from reviewing another Supreme Court judge's bail decision unless the Rules permit it. No such rules existed, so the matter was referred to the full Court of Criminal Appeal sitting as a bench of three.
The applicant was self-represented before the CCA. The Crown opposed bail. At the time of the hearing, the applicant's non-parole period was due to expire in approximately two weeks.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to conduct a review of a Supreme Court bail decision, and the correct procedural pathway for such a review
- Whether the review was to be conducted as a hearing de novo (a fresh hearing, not merely a check on whether the earlier judge erred)
- Whether the applicant had established "special or exceptional circumstances" under s 30AA of the Bail Act 1978 justifying the grant of bail following conviction on indictment and pending a criminal appeal
- Whether the grounds of appeal against conviction and sentence were virtually certain to succeed, satisfying the stringent test applied under s 30AA
Decision
The Court confirmed that a review of a bail decision made by a Supreme Court judge must come before the full Court of Criminal Appeal, not a single judge of that Court, because s 45(3) of the Bail Act precludes a single CCA judge from reviewing a fellow Supreme Court judge's decision in the absence of enabling rules. The review itself proceeded as a hearing de novo, meaning the Court reconsidered the matter afresh on all material, without being limited to assessing whether Hall J had erred.
Section 30AA of the Bail Act applies where an appeal against conviction or sentence on indictment is pending. It prohibits any court from granting bail unless "special or exceptional circumstances" justifying bail are established. The Court affirmed the well-settled principle, drawn from Wilson v R (1994) and related authorities, that in practice this requires the applicant to demonstrate that the grounds of appeal are virtually certain to succeed.
The Court examined the applicant's extensive materials, including fifteen draft grounds of appeal against conviction and six grounds against sentence. It found that many of the complaints had not been raised at trial, that very few objections had been taken to Crown evidence during the proceedings, and that written jury directions had been settled with counsel without any application for redirection. The Court characterised many of the proposed grounds as "dubious in the extreme" and concluded that none came close to the high prospect of success the test demands.
The Court also considered the applicant's additional submissions, including that his custodial term was nearly complete and that a successful appeal would produce a hollow victory, and that delays in appeal preparation had been caused by custody. The Court noted that the hearing date vacations had been sought by the applicant himself, and that his imminent release to parole would provide ample opportunity to prepare. None of those matters were found to constitute special or exceptional circumstances.
Orders Made
- Application for review dismissed
- Bail refused
Key Takeaways
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Under s 45(3) of the Bail Act 1978, a single judge of the Court of Criminal Appeal cannot review a bail decision made by another Supreme Court judge unless the Supreme Court Rules expressly permit it. No such rules existed, making the full CCA the correct forum.
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A review of a bail determination in the Court of Criminal Appeal proceeds as a hearing de novo: the Court reconsiders all material afresh rather than reviewing for error in the original decision.
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Section 30AA of the Bail Act imposes a stringent threshold. Where an appeal against conviction or sentence on indictment is pending, bail cannot be granted unless the applicant establishes "special or exceptional circumstances," which the courts have interpreted as requiring that the grounds of appeal be virtually certain to succeed.
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Grounds of appeal that were not raised at trial, that lacked supporting material from which a court could assess their cogency, or that were simply added in large numbers without substantive merit, did not satisfy the s 30AA threshold.
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The imminent expiry of a non-parole period, the practical consequences of a hollow victory on appeal, and difficulties in preparing for appeal while in custody were each considered and found insufficient, standing alone or together, to constitute special or exceptional circumstances.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), ss 30AA, 45(1)(b), 45(3)
- Crimes Act 1900 (NSW), s 579
- Police Integrity Commission Act 1996 (NSW), ss 26, 137
- Supreme Court Act 1970 (NSW)
- Supreme Court Rules 1970 (NSW)
Cases
- Petroulias v R [2010] NSWCCA 95
- R v Hamill (1986) 25 A Crim R 316
- Wilson v R (1994) 34 NSWLR 1
- R v Southgate (1960) 78 WN (NSW) 44
- Director of Public Prosecutions v SKA [2009] NSWCA 51