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Supreme Court 19 December 2014

R v JB

[2014] NSWSC 1964

Homicide
BAIL APPLICATION APPLICANT CONVICTED OF MURDER BAIL GRANTED

Citation: R v JB [2014] NSWSC 1964
Court: Supreme Court of New South Wales
Date: 19 December 2014
Judge: Button J

Background

The applicant, referred to as JB, had been convicted of murder following a jury trial and was sentenced to 23 years imprisonment with a non-parole period of 16 years commencing April 2008. He was 15 years old at the time of the offence and had no prior criminal history. The conviction arose from a fatal stabbing during a violent group dispute at Granville.

After exhausting all ordinary appeal rights, new material emerged years later that strongly suggested a key Crown witness had concealed his other roles in the criminal justice system, that certain police officers had not acted with full candour, and that the applicant's trial solicitor may have been subject to a conflict of interest. In November 2014, R A Hulme J referred the matter to the Court of Criminal Appeal under the Crimes (Appeal and Review) Act 2001, with the Attorney General's consent, and considered the circumstances to compellingly warrant expedition.

JB applied for bail pending his conviction appeal, which was listed for hearing on 24 March 2015. By the time of the bail application, he had been in custody for over six and a half years and had more than nine years remaining on his non-parole period.

  • Whether the Supreme Court had jurisdiction to hear the bail application, given s 62 of the Bail Act 2013 (NSW)
  • Whether "special or exceptional circumstances" under s 22 of the Bail Act 2013 had been established, as required before bail can be considered following a conviction for a serious offence
  • Whether, having regard to the relevant considerations under s 17 of the Act, bail should be granted and on what terms
  • How the near-certain quashing of the murder conviction should affect the characterisation of the applicant's status for bail purposes

Decision

The parties jointly submitted that the Court had jurisdiction, and Button J accepted that submission without detailed analysis. The Crown's senior counsel, who was to personally appear in the Court of Criminal Appeal and had committed to conceding the appeal there, described aspects of the trial as a "travesty." On that basis, the Crown conceded that the high threshold in s 22 of the Act had been met, and Button J independently agreed.

Button J accepted the Crown's invitation to treat the applicant, in practical terms, as a person charged with murder rather than convicted of it. The inevitable quashing of the conviction in a matter of months meant the murder conviction carried, in the Crown's own submission, no more legal weight than a charge. The strength of the remaining Crown case, assessed after the impugned evidence was set aside, was characterised by the Crown itself as "not overly strong," a description Button J adopted over the applicant's characterisation of it as "weak."

The judge acknowledged powerful competing considerations. Arguments against bail included the proximity of the appeal hearing (approximately three months away), concerns about the practical capacity of the proposed supervisor to provide daily oversight, and the applicant's disciplinary record in custody. Arguments in favour included the presumption of innocence under s 3(2) of the Act, the relatively unstrong Crown case, substantial community support, and the compelling submission that the applicant had effectively been held without a fair trial for over six and a half years.

Describing the matter as "right on the cusp," Button J concluded that the circumstances were "absolutely extraordinary" and warranted the "absolutely extraordinary step" of granting bail. Bail was granted on the strictest possible conditions, with an explicit warning that any breach would result in immediate return to custody.

Orders Made

• Bail granted to the applicant on the strictest possible terms
• Bail conditions to be found on court file

Key Takeaways

  • Bail following a murder conviction can be granted only in "absolutely exceptional circumstances," and Button J treated that threshold as met where the Crown itself conceded the conviction was inevitably to be quashed and described the trial as a "travesty."
  • Where a conviction is certain to be quashed in the near term, a court may treat the applicant as if charged with, rather than convicted of, the relevant offence when assessing the bail threshold under s 22 of the Bail Act 2013.
  • Under s 3(2) of the Bail Act 2013, courts must bear firmly in mind the presumption of innocence, a consideration that carried particular weight here given the applicant had effectively been denied a fair trial.
  • The combination of post-conviction fresh evidence, a concession by senior Crown counsel, the anticipated quashing of the conviction, and over six years of custody pending a lawful trial together constituted the "absolutely exceptional circumstances" required.
  • Even where bail is granted in exceptional circumstances involving serious offences, the court will impose the strictest available conditions, with the clear expectation that any breach will result in immediate reincarceration.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 3(2), 17(3)(c), 17(3)(d), 17(3)(f), 17(3)(g), 17(3)(h), 22, 62
- Bail Amendment Act 2014 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 78

Cases
- JB: Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1714 (R A Hulme J)