Citation: R v Robert Flaherty [2016] NSWDC 121
Court: District Court of New South Wales
Date: 26 February 2016
Judge: Cogswell SC DCJ
Background
The offender, a 72-year-old former Catholic priest in very poor health, had been found guilty by a jury of two serious sexual offences committed against a teenage parishioner and altar boy decades earlier. He had separately pleaded guilty to offences involving two other boys. The sentencing judge imposed a total sentence of two years and three weeks with a non-parole period of six months, commencing 26 February 2016.
On the same day as sentencing, the offender's counsel made an application for release on bail under the Bail Act 2013 (NSW), pending a proposed appeal to the Court of Criminal Appeal against both conviction and sentence. The sentence had been imposed only the day before, and only a notice of intention to appeal had been lodged at the time of the hearing.
The central dispute was whether the offender could establish "special or exceptional circumstances" sufficient to justify a grant of bail under section 22 of the Bail Act 2013, which imposes a higher threshold for bail after conviction.
Legal Issues
- Whether "special or exceptional circumstances" existed under section 22 of the Bail Act 2013 to justify bail pending appeal after conviction
- What threshold of prospects of success must an applicant demonstrate on the merits of a proposed appeal in order to contribute to that finding
- Whether the offender's deteriorating health and limited life expectancy constituted a special or exceptional circumstance
- Whether there was an arguable ground of appeal arising from a fitness-for-trial issue that emerged during the trial
Decision
His Honour applied the test set out by the Court of Criminal Appeal in El-Hilly and Melville v R [2015] NSWCCA 146. Under that authority, where the merits of an appeal form part of a combination of factors, the relevant question is whether the proposed grounds of appeal are "arguable or enjoy reasonable prospects of success." This is a materially lower threshold than formulations previously applied, such as requiring that success be "virtually inevitable" or "most likely."
On the merits, his Honour found that the proposed conviction appeal ground relating to a fitness-for-trial issue carried some merit. Medical evidence indicated the offender was likely suffering from dementia, raising a question about whether a fitness hearing should have been held during the trial. His Honour acknowledged he had insufficient time to review the evidence fully, but found the issue was arguable. The sentence appeal grounds were assessed less favourably: the manifest excess argument and the remissions point were not regarded as having reasonable prospects of success.
Two additional considerations weighed in favour of bail. First, the offender's treating specialist had given a prognosis of six to twelve months survival as of September 2015, raising a real possibility that he would not survive the non-parole period. Second, there was genuine uncertainty about whether the appeal could be heard and determined before the non-parole period expired in August 2016, given likely transcript delays and listing pressures.
Weighing all these factors together, including the serious interference with the administration of justice that staying a custodial sentence represents, his Honour was satisfied that special or exceptional circumstances had been established and granted bail on conditions.
Orders Made
• A transcript of yesterday's sentence be ordered and made available for revision
• A transcript of the bail decision be made available for revision
• The section 9 bond to commence from yesterday
• Material marked MFI #17 to be made available to counsel to review, with photocopies available upon request
Key Takeaways
- Under section 22 of the Bail Act 2013, bail after conviction pending appeal requires the applicant to establish "special or exceptional circumstances," and the unacceptable risk test also applies independently.
- Following El-Hilly and Melville v R [2015] NSWCCA 146, where appeal merits form part of a combination of factors, the relevant threshold is whether grounds are "arguable or enjoy reasonable prospects of success" — not that success is "virtually inevitable" or "most likely."
- A fitness-for-trial issue emerging from evidence of dementia, though not fully assessed on the application, was treated as capable of contributing to the "arguable grounds" element of the special or exceptional circumstances test.
- Severe health deterioration and a terminal prognosis can constitute, in combination with arguable appeal grounds and the risk of serving a substantial part of a non-parole period before the appeal is determined, sufficient special or exceptional circumstances under section 22.
- The District Court expressly acknowledged the High Court's warning in United Mexican States v Cabal (2002) 209 CLR 165 that staying a custodial sentence is a serious interference with the due administration of justice, treating this as a significant countervailing consideration.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), section 22
Cases
- El-Hilly and Melville v R [2015] NSWCCA 146
- United Mexican States v Cabal (2002) 209 CLR 165
- R v Jiao (No 3) [2014] NSWDC 354