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Supreme Court 23 November 2020

R v Rodriguez

[2020] NSWSC 1660

Sexual offences
BAIL JURISDICTION OF THE SUPREME COURT RELEVANT PRINCIPLES YOUTH PERIOD IN CUSTODY DELAY

Citation: R v Rodriguez [2020] NSWSC 1660
Court: Supreme Court of New South Wales
Date: 23 November 2020
Judge(s): Walton J

Background

A respondent was convicted in the District Court on two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). On the day of sentencing, the trial judge granted him conditional bail pending an intended appeal against conviction. The aggregate sentence was three years' imprisonment, with a non-parole period of 18 months commencing from the date of sentencing.

The Crown brought a detention application in the Supreme Court, seeking to revoke the bail that had been granted by the District Court. There was no allegation that the respondent had breached any bail condition. The detention application was brought essentially on the same grounds on which bail had been opposed below.

Under s 75 of the Bail Act 2013 (NSW), a detention application is treated as a new hearing, so the question before Walton J was not whether the trial judge erred but whether the fresh application for detention should be granted.

Legal Issues

  • Whether the Supreme Court had jurisdiction under s 66(2) of the Bail Act 2013 (NSW) to entertain a Crown detention application where bail had been granted (rather than refused) by the District Court after conviction.
  • Whether, when a party relies on a combination of factors including appeal prospects to establish special or exceptional circumstances under s 22 of the Bail Act, the arguability test applies to the assessment of appeal merits regardless of the substance of the other factors relied upon.
  • Whether the respondent's circumstances, including youth, limited criminal record, compliance with bail, family support, period in custody before appeal, and the proposed grounds of appeal, individually or in combination, established special or exceptional circumstances under s 22.
  • Whether the proposed grounds of appeal, being an unreasonable verdict ground and an alleged misdirection on consent, were likely to succeed.

Decision

Jurisdiction under s 66(2):
Walton J accepted that s 66(2) of the Bail Act provides the Supreme Court with jurisdiction to hear a Crown detention application following a bail decision made by the District Court after conviction. Section 66(2) refers to "a bail decision" without the limitation in s 66(1), which is confined to circumstances involving a prior refusal of bail. The two subsections deal with different subject matters: subs (1) governs release applications following a prior refusal, while subs (2) governs detention or variation applications following a grant of bail (at [17]-[25]).

The arguability test and the two-stage inquiry under s 22:
The court confirmed that establishing special or exceptional circumstances under s 22 is a two-stage process. Where a party relies on the merits of the appeal as one of a combination of factors, the arguability test (whether the appeal is arguable or enjoys reasonable prospects of success) applies to the assessment of those merits only if at least one of the other factors is found to have substance. Mere reliance on a combination of factors is insufficient to enliven the arguability test. If, after assessing the other factors, none has sufficient weight, the higher "likely to succeed" test applies to the assessment of appeal prospects (at [61]-[75]).

Assessment of the factors other than appeal merits:
The court considered each of the respondent's factors in turn. Compliance with bail conditions carries very little weight and does not constitute special or exceptional circumstances (at [83]-[90]). The previous grant of bail pending appeal is of some, but not substantial, weight (at [90]). Family support and a limited criminal record fall within the s 18 unacceptable risk assessment rather than s 22 and carry little individual weight (at [91]-[96]). Stringency of bail conditions similarly carries little weight in the s 22 analysis (at [98]). The period of approximately six months in custody before the anticipated May 2021 appeal hearing, even amplified by the respondent's youth and lack of prior incarceration, did not constitute a substantial portion of the non-parole period as understood in the authorities and did not amount to special or exceptional circumstances (at [108]-[111]). Taken singularly or in combination, the non-merit factors did not establish special or exceptional circumstances (at [111]).

Appeal prospects:
Because none of the other factors had sufficient substance, the court applied the higher "likely to succeed" test to both proposed grounds of appeal (at [114]). On ground 1, the unreasonable verdict ground, the court observed that it could not replicate the full exercise of the Court of Criminal Appeal on a bail application and must proceed on the assumption that the jury assessed the complainant's evidence as credible and reliable (at [157]-[163]). On the limited material available, the court did not consider it likely the respondent would succeed on this ground, noting the strength of the Crown case (at [164]-[165]). On ground 2, the alleged inadequacy of the trial judge's directions on s 61HE(3)(c) of the Crimes Act, the court noted that no objection had been taken at trial, that the direction used the standard bench book formulation, and that the respondent did not point to any positively erroneous statement but only to an absence of additional guidance. The court did not consider ground 2 likely to succeed either (at [203]). The court added that, if required, it would have doubts as to whether either ground had reasonably arguable prospects of success (at [204]). The respondent therefore failed to establish special or exceptional circumstances under s 22(1) (at [205]).

Orders Made

  • The Crown's detention application is granted.
  • The respondent's bail is revoked and he is to be detained forthwith.

Key Takeaways

  • Section 66(2) of the Bail Act 2013 (NSW) confers jurisdiction on the Supreme Court to hear a Crown detention application following a grant of bail by the District Court after conviction. The provision is not limited, as s 66(1) is, to situations where bail was previously refused (at [17]-[25]).
  • Where a party resisting a detention application relies on a combination of factors including appeal prospects, the lower arguability test applies to the assessment of those prospects only if at least one of the other factors is independently found to have substance. If the remaining factors lack weight, the higher "likely to succeed" test governs the assessment of appeal merits (at [61]-[75]).
  • Compliance with bail conditions, family support, a limited criminal record, and the stringency of bail conditions are factors relevant to the unacceptable risk assessment under s 18 rather than to special or exceptional circumstances under s 22, and individually carry little weight in the s 22 analysis (at [83]-[98]).
  • A period in custody before an appeal hearing does not constitute special or exceptional circumstances under s 22 merely because an applicant is young or has not previously been incarcerated. The relevant question is whether a substantial portion of the non-parole period will have expired before the appeal is heard (at [107]-[111]).
  • In assessing an unreasonable verdict ground on a bail application, a court must proceed on the assumption that the jury assessed the complainant's evidence as credible and reliable, and the bail court is not the appropriate forum to conduct the same detailed analysis as the Court of Criminal Appeal (at [157]-[163]).

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW)
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Rules (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
- Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
- Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103
- El Khouli v R [2019] NSWCCA 146
- El-Hilli and Melville v R [2015] NSWCCA 146
- GBF v The Queen [2020] HCA 40
- M v The Queen (1994) 181 CLR 487
- Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4
- Murray v R (1987) 11 NSWLR 12
- Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
- Obeid v R (No 2) [2016] NSWCCA 321
- Pell v The Queen [2020] HCA 12
- Peters v The Queen (1996) 71 ALJR 309
- Petroulias v R [2010] NSWCCA 95
- R v XHR [2012] NSWCCA 247
- R v Ambury [2017] NSWCCA 115
- R v Beserick (1993) 30 NSWLR 510
- R v Brown (Unreported, Supreme Court of NSW, Walton J, 6 February 2019)
- R v Hemsley (1988) 36 A Crim R 334
- R v Henning (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990)
- R v Kitchener (1993) 29 NSWLR 696
- R v O'Meagher (1997) 101 A Crim R 196
- R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
- R v Thomas (Unreported, Supreme Court of NSW, Campbell J, 4 June 2014)
- R v Tolmie (1995) 37 NSWLR 660
- R v Vaziri [2016] NSWSC 1283
- R v Velevski [1999] NSWCCA 96
- R v Waters (1990) 9 Petty SR 4016
- R v Williams [2018] NSWSC 994
- R v Zorad [1979] 2 NSWLR 764
- Roos v R [2019] NSWCCA 67
- Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102
- Stanford v R [2018] NSWCCA 249
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Wilson v R (1994) 34 NSWLR 1