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District Court 22 December 2014

R v Jiao (No 3)

[2014] NSWDC 354

Fraud & dishonesty
CRIMINAL LAW PROCEDURE BAIL APPLICATION AFTER CONVICTION AND SENTENCE APPEAL PENDING RELEVANT CONSIDERATIONS

Citation: R v Jiao (No 3) [2014] NSWDC 354
Court: District Court of New South Wales
Date: 22 December 2014
Judge: Cogswell SC DCJ

Background

A middle-aged dual Taiwanese and New Zealand national was tried and convicted by a jury on 16 December 2014 of a money laundering offence under s 400.9(1) of the Criminal Code 1995 (Cth). She was sentenced on 19 December 2014 to six months' imprisonment, commencing from that date.

Her trial counsel applied for bail pending an appeal to the Court of Criminal Appeal, relying on a notice of intention to appeal filed against both the conviction and the sentence. No formal grounds of appeal had yet been articulated; counsel instead outlined five potential matters that might, subject to advice from senior counsel, form the basis of grounds.

The bail application was stood over to 22 December 2014 to allow further submissions on two questions: the likely hearing date in the Court of Criminal Appeal, and the applicable legal principles under s 22 of the Bail Act 2013 (NSW).

  • Whether "special or exceptional circumstances" existed under s 22 of the Bail Act 2013 (NSW) sufficient to justify granting bail after conviction and sentence, with an appeal pending
  • What weight should be given to the prospect that the applicant might serve a substantial portion of her sentence before the appeal could be heard
  • Whether the five potential grounds of appeal, as articulated by counsel, reached the threshold of being "most likely to succeed"

Decision

The court acknowledged the pressing timing concern. Estimates indicated the appeal would likely not be heard until April or May 2015, while the six-month sentence was due to expire on 18 June 2015. That meant the applicant could serve half to two-thirds or more of her sentence before the appeal was determined. The court accepted this was a significant factor, but confirmed it was not the only relevant consideration.

Drawing on the High Court's reasoning in United Mexican States v Cabal (2002) 209 CLR 165, as applied by the Supreme Court in CDPP v Cassaniti [2006] NSWSC 1103 and R v John Kay Jin Khoo [2013] NSWSC 1518, the court identified the weighty public interest considerations that cut against bail after conviction. These include that granting bail makes a conviction appear contingent, risks returning a person to custody after circumstances have changed, encourages unmeritorious appeals, and undermines respect for the administration of criminal justice.

The court then turned to the potential grounds of appeal. None had been formally filed; counsel outlined five possible arguments, including that the verdict was unreasonable, that the jury had been misdirected, and that the prosecution had oversimplified the case in a way that prejudiced the defence. After a limited assessment of each, the court found that none reached the level of grounds "most likely to succeed." In particular, the court formed the view that the evidence before the jury provided a sound basis for the verdict and that the prosecution's presentation of its case did not disclose any ground with genuine prospects of success.

Weighing the prospect of the applicant serving most of her sentence against grounds of appeal that fell below the required threshold, and taking into account the broader administration of criminal justice principles identified in Cabal, the court concluded that special or exceptional circumstances had not been established. Bail was refused.

Orders Made

  • Bail application refused.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), a court cannot grant bail pending an appeal against conviction or sentence on indictment unless the applicant establishes "special or exceptional circumstances." This is a high bar.
  • The prospect of serving a substantial portion of a sentence before an appeal is heard is a relevant and important factor, but it is not, on its own, sufficient to establish special or exceptional circumstances.
  • A merely arguable ground of appeal is insufficient. As confirmed by Cogswell SC DCJ, drawing on Supreme Court authority, the grounds of appeal must be "most likely to succeed" before they can weigh meaningfully in favour of bail.
  • Where no formal grounds of appeal have been filed, a court will conduct only a limited assessment based on potential grounds as articulated by counsel, but the absence of filed grounds does not lower the applicable threshold.
  • Broader administration of criminal justice considerations, including the public interest in convicted persons serving sentences promptly and without bail making a conviction appear contingent, remain central to the analysis even where timing concerns are significant.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 22
- Bail Act 1978 (NSW), s 30AA
- Criminal Code 1995 (Cth), s 400.9(1)

Cases
- United Mexican States v Cabal (2002) 209 CLR 165 (High Court)
- Commonwealth Director of Public Prosecutions v Cassaniti [2006] NSWSC 1103
- R v John Kay Jin Khoo [2013] NSWSC 1518