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Supreme Court 26 June 2013

R v Fabian Michael

[2013] NSWSC 854

Public order & justice offences
CRIMINAL LAW BAIL APPLICATION BUT APPEAL NOT YET FILED

Citation: R v Fabian Michael [2013] NSWSC 854
Court: Supreme Court of New South Wales
Date: 26 June 2013
Judge(s): Slattery J

Background

The applicant had been convicted by a District Court jury of one count of doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900. The conduct involved advising a person connected to a police investigation to give a false account. On 21 March 2013, the applicant was sentenced to two years and three months imprisonment with a non-parole period of fifteen months.

On the same day as sentencing, the applicant filed a Notice of Intention to Appeal against conviction. However, no formal appeal had yet been lodged in the Court of Criminal Appeal at the time of the bail application. The applicant had served approximately three months, or around 20%, of his non-parole period at the time of the hearing.

The applicant sought bail from a single judge sitting in the Supreme Court bail list. He relied on serious cardiac and psychological health conditions, the strength of the proposed appeal grounds, and his prior compliance with bail conditions during the period between charge and sentence.

  • Whether a single Supreme Court judge has power under the Bail Act 1978 to grant bail after conviction, where only a Notice of Intention to Appeal has been filed and no formal appeal yet exists.
  • Whether the phrase "an appeal pending in the Court" in the Bail Act and Criminal Appeal Act 1912 encompasses a filed Notice of Intention to Appeal.
  • Whether "special or exceptional circumstances" within the meaning of s 30AA of the Bail Act were established on the facts.

Decision

Jurisdiction of a single judge. Slattery J held that s 28 of the Bail Act, which confers power on the Supreme Court to grant bail to "any person accused of any offence," extends to persons who have already been convicted. The word "offence" is defined in s 4 to include an "alleged offence," and this inclusive definition supports a broader reading. This construction was reinforced by s 30AA, which refers to bail being granted by "the Court of Criminal Appeal or any other Court," thereby contemplating that courts other than the Court of Criminal Appeal may grant bail pending appeal. The approach in DPP v Cassaniti [2006] NSWCCA 335 supported this reading.

Whether a notice of intention to appeal suffices. The applicant had not yet filed a formal appeal, only a Notice of Intention to Appeal. Section 10(2)(b) of the Criminal Appeal Act 1912 resolves this squarely: for the purposes of any other Act, an appeal is taken to be pending in the Court once a notice of intention to appeal has been duly given. Slattery J found there was therefore no procedural obstacle to hearing and determining the application.

Special or exceptional circumstances. Slattery J accepted that four factors, taken together, established the required threshold under s 30AA. First, the applicant's compliance record was strong: he had no prior convictions and had met all bail conditions without fail from charge through to sentencing. Second, the draft grounds of appeal, supported by senior counsel's written submissions and the trial transcript, were described as "well structured and compelling," though the judge declined to predict success with certainty. Third, the applicant had a diagnosed cardiac condition requiring urgent specialist review, with a real risk of further cardiac events if untreated. Fourth, a stress-related major depressive disorder compounded the cardiac risk, with medical evidence linking his depressive condition to increased risk of a myocardial event.

Slattery J noted that without bail, a substantial portion of the non-parole period would likely be served before the appeal could be heard, which could deprive the applicant of any practical benefit from a successful appeal. The Crown's opposition, grounded in the seriousness of the offence and flight risk, was not accepted as sufficient to displace these cumulative circumstances.

Orders Made

  • Bail granted pending the applicant's appearance as directed by the Court of Criminal Appeal, subject to compliance with Bail Condition 9.
  • The applicant to reside at a specified address.
  • A curfew imposed between 9:00pm and 6:00am, with the applicant permitted to leave only in the company of a specified person.
  • Daily reporting to a specified police station between 8:00am and 6:00pm.
  • Surrender of passport; prohibition on applying for another; prohibition on approaching within 300 metres of any departure point from the country.
  • Applicant to enter into an agreement to forfeit $5,000 for non-compliance with bail undertaking.
  • One acceptable surety to enter into an agreement to forfeit $50,000, with acceptable security deposited.
  • Applicant to be of good behaviour.
  • The applicant to lodge an appeal against conviction in the Court of Criminal Appeal Registry by 5:00pm on Wednesday 10 July 2013, and to conduct the appeal expeditiously.
  • Bail automatically revoked upon breach of any condition; applicant may be arrested by any police officer upon such breach.

Key Takeaways

  • A single Supreme Court judge sitting in the bail list has power under s 28 of the Bail Act 1978 to grant bail to a convicted person pending appeal, not only the Court of Criminal Appeal. The phrase "any other Court" in s 30AA confirms this.
  • Under s 10(2)(b) of the Criminal Appeal Act 1912, an appeal is "pending in the Court" once a Notice of Intention to Appeal has been filed, even before a formal appeal is lodged. This removes any procedural bar to a bail application at that early stage.
  • The "special or exceptional circumstances" test in s 30AA is not confined to the strength of the proposed appeal. Medical conditions, psychological conditions, compliance history, and the practical risk of serving the full non-parole period before an appeal is heard may all be relevant factors.
  • Refusing bail where a substantial proportion of a non-parole period would otherwise be served before the appeal is determined was treated as a factor weighing in favour of granting bail, given the risk of rendering a successful appeal practically meaningless.
  • Prior compliance with bail conditions, even in a case involving a serious offence, remains a significant consideration when assessing the likelihood of the applicant attending court and the appropriateness of bail conditions.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 4, 28, 30, 30AA
- Crimes Act 1900 (NSW), s 319
- Criminal Appeal Act 1912 (NSW), s 10(2)(b)

Cases:
- R v Joseph Antoun [2005] NSWCCA 270
- R v Wilson (1994) 34 NSWLR 1
- DPP v Cassaniti [2006] NSWCCA 335