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Court of Criminal Appeal 10 November 2021

Simpson v R

[2021] NSWCCA 264

Fraud & dishonesty
CRIME BAIL APPEARANCE OF TWO CROWN PROSECUTORS POTENTIAL UNFAIRNESS IN CROSS JURISDICTIONAL OPPOSITION TO BAIL STRONG CROWN CASE

Citation: Simpson v R [2021] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 10 November 2021
Judges: Harrison J, Davies J, Dhanji J

Background

The applicant faced two separate indictments: one for Commonwealth offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) involving the unlawful export and possession of protected species, and one for State fraud offences under the Crimes Act 1900 (NSW). He had an extensive criminal record dating back to 1988, including prior convictions for fraud and for offences similar to the current Commonwealth charges.

Two previous bail applications had been refused, first by Hidden AJ in the Supreme Court in October 2020 and then by N Adams J in the District Court in June 2021. The applicant, who was self-represented, brought a fresh application to the Court of Criminal Appeal. Separate Crown prosecutors appeared on behalf of both the Commonwealth Director of Public Prosecutions and the NSW Director of Public Prosecutions to oppose the application.

  • Whether bail should be granted de novo, and whether the applicant needed to establish error in the earlier decisions
  • Whether two prosecutors, one for the Commonwealth and one for the State, should be permitted to appear jointly in opposition to a single bail application
  • Whether the bail risks, including the risk of the applicant committing further serious offences, could be sufficiently ameliorated by conditions
  • What weight should be given to the applicant's unrepresented status, his difficulty preparing for trial while in custody, and the impact of COVID-19 restrictions on those preparations

Decision

The Court confirmed that a bail application in the Court of Criminal Appeal is heard de novo under s 75 of the Bail Act 2013 (NSW). No error in the prior decisions needed to be demonstrated, though earlier judgments could be considered for their persuasive effect. The applicant had directed his submissions at identifying error in N Adams J's decision, which was understandable for a self-represented person but legally unnecessary.

Dhanji J raised a preliminary concern about the appearance of two prosecutors opposing the one bail application. Because the applicant did not object and argument was not heard on the point, no concluded view was expressed. Dhanji J's preliminary view, however, was that a single prosecutor should appear on such applications, given the potential for at least the appearance of unfairness, particularly if an applicant gives evidence and each prosecutor claims the right to cross-examine or address separately.

All three judges acknowledged the strength of the Crown case and the applicant's concerning criminal history, which gave rise to a real risk that he would commit further serious offences if released. Davies J identified this as a strong concern. However, the Court balanced that risk against factors in s 18 of the Act, particularly the applicant's entitlement under s 18(1)(l) to be free to prepare for trial. The applicant was unrepresented, the cases were not straightforward, and the COVID-19 pandemic had placed further limitations on his ability to prepare adequately in custody.

The Court concluded that the bail risks were sufficiently ameliorated by a stringent set of conditions. Those conditions included residence requirements, supervision by family members, travel restrictions, prohibitions on approaching witnesses or entering postal or parcel delivery premises, strict controls on mobile phone use including police access to the device, a prohibition on encrypted communications, and a $250,000 security deposit.

Orders Made

  • Bail granted subject to the following conditions:
  • Residence at a nominated address
  • Not to contact, directly or indirectly, any person the Crown intends to call as a witness
  • To be collected from the correctional centre by his mother or father, one of whom must attend before release
  • Surrender of any current passport to the Officer in Charge of the State prosecution prior to release
  • Not to apply for any new passport or travel document
  • Not to go within 500 metres of any point of departure from Australia
  • Not to enter any post office or premises of any parcel sending or delivery service
  • Use of only one mobile telephone, with the number, IMEI, and password provided to police within 24 hours; police permitted to check content and communications; applicant to assist with access
  • Not to use any encrypted form of communication
  • One acceptable person to deposit $250,000 security against failure to appear
  • To present at the front door of residence when directed by police on reasonable grounds

Key Takeaways

  • A bail application before the Court of Criminal Appeal is determined de novo under s 75 of the Bail Act 2013 (NSW); no error in a prior bail decision needs to be established, though earlier decisions may be considered for their persuasive effect.
  • Where an accused is unrepresented and COVID-19 restrictions have impaired the ability to prepare for trial in custody, s 18(1)(l) of the Bail Act 2013 (the right to be free to prepare for a court appearance) can weigh heavily enough to support bail even where the Crown case is strong and there is a significant risk of further offending.
  • Dhanji J expressed a preliminary (not concluded) view that only one prosecutor should appear to oppose a bail or detention application, even where charges span both State and Commonwealth indictments, given the potential for at least the appearance of unfairness and the duplication of material that multiple prosecutors can produce.
  • The binary nature of bail outcomes (an applicant is either in or out of custody) means that concerns under s 17 of the Bail Act 2013 must be assessed by reference to all allegations against an applicant together, rather than indictment by indictment.
  • Stringent bail conditions, including communications restrictions, passport surrender, exclusion zones around departure points and postal premises, and significant security, can be sufficient to reduce what might otherwise be an unacceptable risk of further serious offending to an acceptable one.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 7, 17, 18, 19, 21, 31, 49, 67, 75
- Biodiversity Conservation Act 2016 (NSW), s 2.5
- Crimes Act 1900 (NSW), ss 178BA, 192E, 192J, 192K, 192L
- Crown Prosecutors Act 1986 (NSW), ss 3, 5, 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Code (Cth), ss 11.1, 11.2
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303CA, 303CD, 303DA, 303DD, 303EA, 303EK

Cases
- Cargnello v Director of Public Prosecutions (Cth) (2012) 224 A Crim R 204; [2012] NSWCCA 162
- Chau v DPP (1995) 37 NSWLR 639
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
- Director of Public Prosecutions v Hills (No 8) [2010] VSC 596
- Director of Public Prosecutions v Hing [2017] NSWCCA 325
- Flower v R [2020] NSWCCA 64
- Plassaras v DPP (NSW) [2018] NSWCCA 218
- Popovic v R [2017] NSWCCA 118
- R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242
- R v Simpson (Supreme Court (NSW), Hidden AJ, 12 October 2020, unrep)
- R v Simpson (Supreme Court (NSW), N Adams J, 15 June 2021, unrep)