AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 1 May 2012

Miles v R

[2012] NSWCCA 88

Sexual offences
BAIL BAIL REVIEW UNREPRESENTED LITIGANT

Citation: Miles v R [2012] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 1 May 2012
Judge(s): Hoeben JA, RS Hulme J, Schmidt J

Background

The applicant had been convicted by jury in 2007 of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900. He was sentenced to two partly accumulated prison terms of seven and six years, with non-parole periods of five and four years respectively. His earliest release date was 29 June 2012.

The applicant filed a notice of intention to appeal in 2008 but later abandoned it. He revived his appeal in February 2011, ultimately advancing 31 grounds including unreasonable verdict, various trial errors, and failures by his trial counsel. He had been refused legal aid and appeared unrepresented throughout the bail proceedings.

The applicant sought a review under s 45(1)(b) of the Bail Act 1978 of a bail refusal by Fullerton J on 2 February 2012, which itself followed an earlier refusal by Hidden J in December 2011. The Crown opposed bail.

  • Whether the applicant had demonstrated "special or exceptional circumstances" as required by s 30AA of the Bail Act 1978 to justify bail pending a criminal appeal
  • Whether limited facilities in custody for preparing an appeal, combined with the refusal of legal aid, could constitute such special or exceptional circumstances
  • Whether any of the applicant's grounds of appeal had sufficient prospects of success to support bail

Decision

Schmidt J (with whom Hoeben JA agreed) identified the applicable test under s 30AA of the Bail Act 1978: where an applicant is serving a sentence following conviction, bail pending appeal will only be granted if special or exceptional circumstances are established. It is not enough to show an arguable ground of appeal; the applicant must demonstrate that conviction will almost certainly be quashed, or that some other special or exceptional circumstance exists.

The court acknowledged the applicant's complaints about inadequate preparation facilities in custody and his frequent transfers between correctional facilities, noting these were relevant to the s 32 factors the court must consider. However, Schmidt J concluded that, notwithstanding any limitations he faced, the applicant had demonstrated through his extensive, lucid written submissions that he had not been so inhibited in putting his case as to establish special or exceptional circumstances on that basis alone.

On the merits of the appeal grounds, the court found that while some grounds may be arguable, their merits would require examination of what actually occurred at trial. The applicant had not established that any ground was likely to succeed. Personal factors such as criminal history, prior compliance with bail conditions, and family circumstances, while relevant to an ordinary bail application, were insufficient to meet the higher threshold under s 30AA.

Hulme J added significant observations about the obligations of the Corrective Services Department. His Honour noted the applicant had been moved eighteen times between correctional institutions since 2007, including six times since October 2011, and that documentation suggested he had not been provided with reasonable time and facilities to prepare his appeal. While making no concluded finding, Hulme J warned that if the only way an appellant could prepare their case was by being granted liberty, bail might become necessary.

Orders Made

  • The application for bail was dismissed.
  • The Court joined in a recommendation to the Department of Corrective Services that it provide the applicant with reasonable assistance and facilities to prepare his appeal.

Key Takeaways

  • Under s 30AA of the Bail Act 1978, an applicant serving a sentence following conviction must establish special or exceptional circumstances to obtain bail pending appeal; an arguable ground of appeal is not sufficient.
  • Difficulties preparing an appeal in custody, including refusal of legal aid and limited library access, may be relevant considerations under s 32 of the Bail Act, but do not of themselves constitute special or exceptional circumstances.
  • Where an applicant's conduct of the bail proceedings themselves demonstrates an ability to put their case clearly and at length, a court may find that any alleged impediments do not rise to the level required.
  • Hulme J issued a pointed warning that the Corrective Services Department could face bail being granted as a remedy if it fails to provide appellants with reasonable time and facilities to prepare their cases, particularly where the appellant is unrepresented.
  • Frequent transfers of a convicted appellant between correctional facilities may, on appropriate evidence, support a finding that preparation for appeal has been unduly hampered, even if that did not determine the outcome in this particular application.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 30, 30AA, 32, 45(1)(b)
- Crimes Act 1900 (NSW), s 61I

Cases:
- Petroulias v R [2010] NSWCCA 95
- R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270
- R v Wilson (1994) 34 NSWLR 1