Citation: R v Moore [2015] NSWSC 1262
Court: Supreme Court of NSW
Date: 6 August 2015
Judge: Hamill J
Background
The applicant was convicted by a jury in Goulburn of dishonestly obtaining a benefit by deception and dealing with the proceeds of crime. The offending arose from a bank account he opened in his own name in March 2010 with St George Bank. Due to what appeared to be an internal bank system failure, the applicant was able to overdraw the account repeatedly, accumulating approximately $1.789 million through a linked PayPal account between December 2011 and July 2012.
The applicant used those funds to acquire luxury items including a boat, a Maserati, an Alfa Romeo, valuable paintings and jewellery. Those acquisitions formed the basis of the proceeds of crime charge. He was sentenced to a total term of four and a half years with a non-parole period of two years and three months, expiring 17 May 2017.
Following conviction and sentence, the applicant sought release on bail pending his appeal to the Court of Criminal Appeal. The Crown did not oppose bail on general risk grounds, but firmly submitted that the applicant had failed to satisfy the higher threshold required under s 22 of the Bail Act 2013 (NSW).
Legal Issues
- Whether the applicant could establish "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW), as required for bail pending appeal following conviction on indictment
- Whether the combination of circumstances advanced, including the prospects of appeal, the proportion of the non-parole period that would be served before the appeal was heard, and the unusual factual background of the offending, met that threshold
- Whether appropriate bail conditions could adequately address any residual bail concern (specifically, the risk of failure to appear)
Decision
Hamill J confirmed that the "special or exceptional circumstances" test under s 22 of the Bail Act 2013 is at least as onerous as, and likely more onerous than, the "show cause" requirement that applies in other contexts. A number of factors relevant to bail concerns and unacceptable risk under ss 17 to 19 of the Act would not, individually or collectively, satisfy s 22 on their own.
The court accepted that no single factor here was, by itself, sufficient. However, the combination of circumstances was found to be genuinely unusual. Central to the analysis were the reasonable prospects of the appeal, the significant portion of the non-parole period that would have elapsed before the appeal could be heard, and the highly unusual factual circumstances of the alleged deception. The applicant's case at trial was that the bank's own system failure, rather than any active deception on his part, enabled the overdrawing, a contention supported by a newspaper quote from a bank officer describing the incident as a "one off" of "human error."
Hamill J also noted a further complicating factor: the trial transcripts were not yet available, making a full assessment of the appeal's prospects more difficult. Despite that limitation, the court was satisfied that the combination of circumstances met the s 22 threshold and that the only remaining bail concern, the risk of non-appearance, could be adequately managed through strict conditions.
Orders Made
Conditional bail was granted on the following terms:
- To be of good behaviour
- To report to a nominated police station twice daily (8am to 10am and 4pm to 6pm)
- To reside at a specified address
- To appear at the Court of Criminal Appeal when the appeal is listed
- To prosecute the appeal with expedition
- Not to take illegal or unprescribed drugs
- To observe a curfew at the nominated address between 7pm and 7am (except medical emergencies)
- Not to apply for any passport or travel document
- Not to approach within 500 metres of any point of international departure
- To enter into an agreement to forfeit $5,000 for failure to appear
- One acceptable person to provide security for $10,000 against failure to appear
- To present at the front door of the residence to confirm curfew compliance when directed by police on reasonable grounds
Key Takeaways
- Under s 22 of the Bail Act 2013 (NSW), an applicant for bail pending appeal following conviction on indictment must establish "special or exceptional circumstances," a threshold Hamill J confirmed is more onerous than the "show cause" requirement applied in other bail contexts.
- A combination of factors, none sufficient alone, can collectively satisfy the s 22 threshold. Here, the convergence of a lengthy anticipated delay before the appeal hearing, a non-parole period that would be substantially served before appeal, reasonable prospects of appeal success, and highly unusual factual circumstances satisfied the test.
- Where the underlying offending involves a significant element of institutional error (in this case, a major bank's own system failure enabling the overdrawing), that factual unusualness is capable of contributing to a finding of special or exceptional circumstances when assessed alongside other relevant factors.
- Granting bail pending appeal does not require the absence of all bail concerns. A residual concern about non-appearance can be addressed through appropriately stringent conditions, including curfews, daily reporting, travel restrictions, and financial security.
- Hamill J noted, in a post-delivery endnote, that the Court of Criminal Appeal reached a similar conclusion about the relative stringency of the s 22 test in DPP v Mawad [2015] NSWCCA 227, decided shortly after this judgment was delivered ex tempore.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 22
- Bail Act 1978 (NSW), s 30AA
- Bail Amendment Act 2014 (NSW)
Cases:
- DPP v Mawad [2015] NSWCCA 227
- El Hilli v Melville [2015] NSWCCA 146
- Ilich v R (1987) 162 CLR 110
- Kennison v Daire (1986) 160 CLR 129
- R v Potisk (1973) 6 SASR 389
- R v Young [2006] NSWSC 1499
- Shields v New South Wales Crime Commission [2007] NSWCA 309
- Westpac Banking Corporation v Ollis (2007) FCA 1194