Citation: Seong Won Lee and Do Young Lee v Regina [2012] NSWSC 1168
Court: Supreme Court of NSW
Date: 28 September 2012
Judge: Hall J
Background
Two co-accused, a father and his son, were convicted in the District Court following a trial on charges including deemed supply of a large commercial quantity of pseudoephedrine and possession of prohibited firearms and weapons. The charges arose from items found at a Sydney apartment on 7 December 2009, along with over $1 million in cash. Both were sentenced to terms of imprisonment.
Each applicant filed a notice of appeal, and the appeals were set down for hearing in the Court of Criminal Appeal on 23 August 2012. The hearing commenced but was adjourned part-heard, with a resumption listed for 12 and 13 November 2012. The adjournment came about, in part, because the Crown had only recently become aware of a relevant interlocutory decision and sought further time to consider its evidentiary and submissions position.
With the appeals part-heard and the gap to the resumed hearing sitting at approximately three months, both applicants applied to the Supreme Court for bail pursuant to s 30AA of the Bail Act 1978. A notable feature of the applications was that the Crown conceded the existence of "special or exceptional circumstances" as required by the statute, and did not oppose the grant of bail.
Legal Issues
- Whether the applicants had established "special or exceptional circumstances" as required by s 30AA of the Bail Act 1978 to justify bail following conviction
- Whether delay in a part-heard appeal, of itself, could constitute special or exceptional circumstances
- Whether the Crown's concession and non-opposition to bail could, alone or in combination with other factors, satisfy the statutory threshold
- The proper role of the court when the Crown concedes the existence of circumstances that the bail statute requires the court independently to assess
Decision
Hall J dismissed both applications. While acknowledging the Crown's concession that special or exceptional circumstances existed, his Honour held that the court is not bound by such a concession and must independently examine whether the relevant circumstances actually exist. The court must be satisfied that factors relied upon, individually or in combination, genuinely meet the statutory threshold.
On the question of delay, his Honour accepted that the roughly three-month gap between the part-heard hearing and the resumed appeal date was a relevant and important factor. However, he did not regard it as sufficiently extraordinary or exceptional, in the context of these particular cases, to satisfy the statutory test on its own.
His Honour gave particular attention to the Crown's non-opposition and concession. Citing the High Court's observations in United Mexican States v Cabal, he reasoned that granting bail post-conviction is a serious interference with the due administration of justice. Crown consent or absence of opposition cannot, on its own, constitute a special or exceptional circumstance. Where the court concludes that the Crown's concession lacks independent support from other circumstances or factors, it must decline to be bound by it.
Having considered all matters raised in comprehensive submissions on behalf of both applicants, Hall J concluded that the circumstances relied upon were not, whether viewed individually or in combination, "special" or "exceptional" within the meaning of s 30AA. Both applications were accordingly dismissed.
Orders Made
- The application for bail on behalf of Seong Won Lee was dismissed.
- The application for bail on behalf of Do Young Lee was dismissed.
Key Takeaways
- Under s 30AA of the Bail Act 1978, a post-conviction bail applicant must establish "special or exceptional circumstances." The court held that this threshold is not satisfied merely because the Crown concedes its existence or does not oppose the grant of bail.
- The Supreme Court confirmed that it must independently assess whether the statutory test is met, even where both parties effectively agree that bail should be granted. A concession by the Crown is a factor to consider, but it cannot substitute for the court's own satisfaction that the circumstances exist.
- A delay of approximately three months in a part-heard appeal, while relevant, was not regarded as sufficiently extraordinary or exceptional in the circumstances of these cases to constitute special or exceptional circumstances on its own.
- Granting bail post-conviction amounts to staying an order of imprisonment, which is a serious interference with the due administration of criminal justice. This principle, drawn from the High Court's reasoning in Cabal, requires courts to exercise considerable caution and to weigh both the position of the applicant and the public interest in the due administration of justice.
- The question of what is "special" or "exceptional" remains fact-specific to each individual case, and grounds of appeal raising potential miscarriage of justice do not automatically carry the application across the threshold.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), particularly s 30AA
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- New South Wales Crime Commission Act 1985 (NSW)
- Criminal Assets Recovery Act 1990 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Key Cases:
- United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
- R v Velevski [2000] NSWCCA 445
- R v CB; MP v R [2011] NSWCCA 264
- Chamberlain v The Queen (No 1) [1983] HCA 13; 153 CLR 514
- Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265
- Director of Public Prosecutions v Louizos [2008] NSWCA 271
- Director of Public Prosecutions v SKA [2009] NSWCA 51
- Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103
- R v Wilson (1994) 34 NSWLR 1
- Regina v MFA [2002] NSWCCA 49
- Tieleman v R [2004] WASCA 285; (2004) 149 A Crim R 303
- R v Giordano (1982) 31 SASR 241