Citation: McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99
Court: Court of Criminal Appeal, New South Wales
Date: 20 May 2019
Judge(s): White JA; Harrison J; R A Hulme J
Background
The applicant was convicted in the District Court in 2016, alongside a co-accused, of offences relating to the importation and conspiracy to import commercial quantities of pseudoephedrine and methamphetamine, as well as dealing with proceeds of crime. He was sentenced to 19 years' imprisonment with a non-parole period of 12 years.
His co-accused, Mr McKell, appealed his conviction. Although that appeal was initially dismissed by the Court of Criminal Appeal, the High Court ultimately allowed it in February 2019, quashing the convictions and ordering a new trial on the basis that the trial judge's summing up was unfair.
The applicant had separately filed his own notice of appeal in May 2018. One ground alleged that the same summing up had caused a miscarriage of justice in his trial. In light of the High Court's decision concerning his co-accused, the Crown conceded that ground had merit and indicated it would not oppose orders quashing the applicant's convictions and directing a new trial. The applicant then sought release on bail under s 49 of the Bail Act 2013 (NSW) pending the hearing of his appeal.
Legal Issues
- Whether the Crown's concession regarding the fourth ground of appeal constituted a "special or exceptional circumstance" justifying a grant of bail under s 22(1) of the Bail Act 2013 (NSW).
- How the two-stage framework under s 22 operates: first, whether special or exceptional circumstances exist; second, whether an unacceptable risk arises under the Division 2 test.
- Whether, when special or exceptional circumstances are established, the unacceptable risk factors under s 18 nonetheless warranted refusing bail on the basis that the applicant might fail to appear at a new trial.
Decision
White JA (with Harrison J and R A Hulme J agreeing) confirmed that s 22 requires a two-stage analysis. The first stage asks whether special or exceptional circumstances exist justifying the bail decision. The second stage requires application of the unacceptable risk test under Division 2 of the Act. While the same material may be relevant to both stages, the two tests must not be conflated and must each be addressed on their own terms.
On the first stage, the Court was satisfied that the Crown's concession constituted a special or exceptional circumstance. The Crown accepted that the applicant's fourth ground of appeal had merit and would not oppose orders quashing the convictions and directing a new trial. A new trial, the Crown also accepted, was unlikely to proceed before mid-2020. This combination of circumstances was sufficient to clear the first hurdle.
On the second stage, the Crown argued there was an unacceptable risk the applicant would fail to appear at any new trial. The Court rejected that argument. The applicant had previously complied with bail conditions throughout a lengthy pre-trial period. A friend offered security of $150,000 secured against property in Bondi. The applicant's wife deposed that he would not risk separation from his family or jeopardise his friend's surety. The Court found the risk of flight was no greater than it had been prior to the original trial.
The Court concluded there was no unacceptable risk of the applicant failing to appear, committing a serious offence, endangering community safety, or interfering with witnesses. Bail was granted on conditions that included daily reporting, residential restrictions, non-contact with certain persons, surrender of passport, travel restrictions, and provision of the $150,000 security.
Orders Made
- Bail granted to the applicant under s 49 of the Bail Act 2013 (NSW).
- Conditions imposed included: daily reporting to Surry Hills Police Station; residence at a specified address; non-contact with the co-accused and prosecution witnesses (other than through legal representatives); surrender of passport and prohibition on obtaining travel documents; restriction on approaching within one kilometre of any point of departure from Australia (with an exception for transporting his wife to and from work); and provision of security of $150,000 backed by a second mortgage over a friend's Bondi property.
Key Takeaways
- Under s 22 of the Bail Act 2013 (NSW), a court must conduct a two-stage inquiry when an appeal is pending: first, whether special or exceptional circumstances justify bail; second, whether an unacceptable risk exists under Division 2. The two stages must not be conflated, even though the same evidence may be relevant to both.
- A Crown concession that a ground of appeal has merit and that convictions should be quashed with a new trial ordered can constitute a "special or exceptional circumstance" within the meaning of s 22(1), independently of the unacceptable risk assessment.
- Where a special or exceptional circumstance is established, the unacceptable risk test under s 22(3) must still be applied. Establishing the first stage does not automatically resolve the second in the applicant's favour.
- Prior compliance with bail conditions, strong family ties, and the provision of substantial security can, in combination, satisfy the court that no unacceptable risk of non-appearance exists, even where the original offences were serious.
- The Court expressly noted that s 22(3) imports the unacceptable risk factors into the analysis, but this does not mean those factors are always determinative of whether special or exceptional circumstances have been established under s 22(1).
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 17, 18, 19, 22, 49
- Criminal Code (Cth), ss 11.5 and 307.1
Cases:
- Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1
- Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385
- DPP v Tikomaimaleya [2015] NSWCA 83
- Edward Moses Obeid v R (No 2) [2016] NSWCCA 321
- El-Hilli and Melville v R [2015] NSWCCA 146
- McKell v R [2017] NSWCCA 291
- McKell v The Queen [2019] HCA 5
- R v Kelly [2000] QB 198