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6
Court of Criminal Appeal 17 December 2020

R v Williams

[2020] NSWCCA 348

Sexual offences
CRIME BAIL APPEALS BAIL RELEASE APPLICATION CONDITIONAL BAIL GRANTED

Citation: R v Williams [2020] NSWCCA 348
Court: Court of Criminal Appeal, NSW
Date: 17 December 2020
Judges: Simpson AJA, Bellew J, Campbell J (all agreeing with Campbell J)

Background

The applicant was convicted after a judge-alone trial of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). He was sentenced to an aggregate term of three years' imprisonment commencing 22 July 2020, with a non-parole period of one year and eight months expiring on 21 March 2022.

The offending arose from an incident in the early hours of 24 June 2018 at a private residence in Yamba. The complainant had been significantly intoxicated and was placed on a lounge to sleep. She awoke during the night to find a man behind her, engaging in digital and penile penetration. The trial judge accepted her account and found the applicant's identity as the perpetrator established by circumstantial evidence, despite DNA evidence on the complainant's underwear that did not match the applicant.

Following conviction and sentence, the applicant filed a Notice of Appeal and subsequently applied for release on bail pending that appeal. The appeal was fixed for hearing on 15 February 2021.

  • Whether the court had jurisdiction to entertain the bail application while appeal proceedings were pending in the Court of Criminal Appeal
  • Whether the applicant could demonstrate "special or exceptional circumstances" justifying bail under s 22 of the Bail Act 2013 (NSW), which sets a heightened threshold for post-conviction bail pending appeal
  • Whether, having cleared that threshold, any unacceptable risk of the bail concerns specified in s 18 of the Bail Act was established

Decision

Campbell J (with whom Simpson AJA and Bellew J agreed) confirmed that the Court held original jurisdiction to hear the application under s 61 of the Bail Act 2013, because substantive appeal proceedings were pending within the meaning of s 59. However, the power to grant bail was conditioned by s 22, which prohibits bail pending a conviction appeal unless the applicant establishes special or exceptional circumstances.

Campbell J outlined the two-stage test drawn from HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 and El-Hilli and Melville v R [2015] NSWCCA 146. First, the applicant must demonstrate special or exceptional circumstances exist. Second, the Court must apply the unacceptable risk test under Division 2 of Part 3 of the Bail Act, assessing the four bail concerns in s 18 (failure to appear, commission of a serious offence, endangering safety, and interference with witnesses or evidence). Campbell J emphasised that these are two distinct questions, even though the same evidence may bear on both.

The Court drew on the High Court's reasoning in United Mexican States v Cabal (2001) 209 CLR 165, which identified strong policy considerations against granting bail after conviction and sentence, including undermining public confidence in the administration of justice and encouraging unmeritorious appeals. Against that backdrop, Campbell J found that a combination of factors in this case collectively discharged the applicant's onus. These included the reasonably arguable prospects of the appeal, the applicant's inability to access adequate medical treatment for a mental health condition while in custody, and his profile as a good candidate for bail overall.

On the unacceptable risk question, Campbell J was satisfied that no unacceptable risk of any of the four s 18 bail concerns had been established. Bail was accordingly granted on conditions.

Orders Made

  • The applicant is to be of good behaviour
  • The applicant is to reside at a specified NSW address with his parents
  • The applicant is to report to Yamba Police Station three times per week (Monday, Wednesday, and Friday) between 7 am and 7 pm
  • The applicant is to appear at the Court of Criminal Appeal on 15 February 2021 and as otherwise required
  • The applicant is not to consume alcohol
  • The applicant is not to communicate by any means with any Crown witness, including the complainant, and must comply strictly with any Apprehended Violence Order in force for the complainant's protection
  • The applicant is not to apply for a passport or travel document and must not enter any international airport terminal or go within 500 metres of any international departure point
  • One or more acceptable persons must enter into an agreement to forfeit $35,000 if the applicant fails to appear (this is a pre-release condition under s 29 of the Bail Act)
  • The applicant must consult a nominated general practitioner about his mental health within 48 hours of release and provide a certificate of attendance at his next reporting

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), a court is not to grant bail pending a conviction appeal unless the applicant establishes "special or exceptional circumstances," a threshold described in prior authority as "a significant hurdle" and reinforced here by reference to the High Court's reasoning in United Mexican States v Cabal.

  • The two-stage test requires separate consideration: first, whether special or exceptional circumstances exist; second, whether any unacceptable risk within the meaning of s 18 is present. The same evidence may inform both stages, but the questions remain analytically distinct.

  • A combination of factors, rather than any single decisive matter, can collectively satisfy the special or exceptional circumstances requirement. Here, the combination of reasonably arguable appeal grounds, inability to access medical treatment in custody, and favourable bail candidacy together discharged the onus.

  • Granting bail after conviction and sentence is characterised in the case law as a serious interference with the administration of criminal justice, given that the presumption of innocence has been rebutted and sentence passed. Courts applying s 22 must weigh this against the specific circumstances relied upon by the applicant.

  • Where the special or exceptional circumstances threshold is cleared, a finding of no unacceptable risk on the s 18 factors may follow naturally, though it remains a separate inquiry that must be completed.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 18, 22, 29, 59, 61
- Crimes Act 1900 (NSW), ss 61I, 319
- Criminal Appeal Rules 1952 (NSW), r 4
- Criminal Procedure Act 1986 (NSW), ss 133, 294AA
- Evidence Act 1995 (NSW), s 165

Cases:
- United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- El-Hilli and Melville v R [2015] NSWCCA 146
- Ewen v R [2015] NSWCCA 117
- Petroulias v R [2010] NSWCCA 95
- R v Hilton (1987) 7 NSWLR 745
- R v Wilson (1994) 34 NSWLR 1
- R v Murray (1987) 11 NSWLR 12
- R v Giordano (1982) 31 SASR 241
- R v Southgate (1960) 78 WN (NSW) 44
- Re Clarkson [1986] VR 583
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63