AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 5 March 2021

Gould v R (Cth)

[2021] NSWCCA 27

Public order & justice offences
CRIME APPEAL AGAINST CONVICTION

Citation: Gould v R (Cth) [2021] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 5 March 2021
Judge(s): Hoeben CJ at CL; Garling J; Wilson J

Background

The applicant had been found guilty by a jury of one count of attempting to pervert the course of justice under s 43(1) of the Crimes Act 1914 (Cth). The charge arose from Federal Court proceedings in which the ATO challenged whether three international companies, beneficially owned by the applicant, had failed to declare income derived from Australian share investment activities. The Crown alleged the applicant procured a UK solicitor based in Switzerland to give false evidence in those proceedings, including falsely claiming to be the beneficial owner of the companies and to have acted independently of the applicant's direction.

The applicant was sentenced to three years and four months' imprisonment with a non-parole period of one year and eight months, commencing 11 May 2020. The applicant filed a conviction appeal and the Crown filed a sentence appeal on grounds of manifest inadequacy. Both were listed for joint hearing on 7 April 2021.

With those appeals pending, the applicant made a release application to the Court of Criminal Appeal. The Court dismissed the application at the hearing on 26 February 2021 and reserved its reasons.

  • Whether the applicant met the threshold under s 22 of the Bail Act 2013 (NSW), which restricts the grant of bail to persons sentenced to imprisonment, requiring "special or exceptional circumstances"
  • Whether the conviction appeal grounds were at least reasonably arguable
  • Whether the applicant's health conditions and the conditions of his custody constituted special or exceptional circumstances sufficient to overcome the s 22 hurdle

Decision

The Court accepted that the applicant's conviction appeal raised at least two arguable grounds: alleged error in admitting improperly obtained evidence, and alleged error in the jury directions concerning a criminally involved witness. The Court also accepted that, if bail were refused, the applicant would serve a significant portion of his non-parole period before the appeal was determined.

On the question of health and custody conditions, the applicant relied on affidavit evidence from his solicitor describing concerns about medical and dental treatment in custody, limited access to specialist care including for glaucoma and sleep apnoea, and periodic placement in a maximum security facility. The Court acknowledged these concerns but found they were based largely on the applicant's own assertions relayed through his solicitor and his wife, rather than on direct evidence that Justice Health was failing or incapable of meeting its statutory obligations.

The Court applied the principle from R v Achurch, affirming that Justice Health is a statutory health corporation empowered and entrusted to provide health services to inmates, and that courts should proceed on the basis that it will discharge those functions. The Court found the applicant's medical conditions, while real, were of a kind affecting many older people and were manageable in a custodial setting.

The combination of arguable appeal grounds, risk considerations, and proposed bail conditions was held insufficient to overcome the s 22 threshold. The Court concluded that the circumstances relied upon were not special or exceptional within the meaning of the Bail Act.

Orders Made

  • The application for bail (release application) was dismissed.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), a sentenced prisoner seeking bail pending an appeal must establish special or exceptional circumstances; arguable appeal grounds and anticipated time in custody before appeal determination do not alone satisfy that threshold.
  • Refusing bail, the Court confirmed that the combination of factors relied upon, including health concerns, arguable grounds, and proposed surety conditions, must collectively amount to something special or exceptional, not merely a series of individually sympathetic considerations.
  • Justice Health's statutory mandate to provide health services to prisoners carries significant weight in bail applications: courts proceed on the basis that the statutory regime empowers Justice Health to meet inmates' legitimate medical needs, absent clear evidence to the contrary.
  • Assertions about inadequate custody conditions, where conveyed through a solicitor's account of the applicant's own statements or a spouse's reports to a general practitioner, will carry limited evidentiary weight in the absence of independent corroboration.
  • The Court of Criminal Appeal confirmed that concerns about the quality of custodial healthcare, relative to private specialist care, do not establish that medical treatment available in custody is inadequate for the purpose of a bail application.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 19, 22, 61
- Crimes Act 1914 (Cth), s 43(1)
- Evidence Act 1995 (NSW)
- Crimes (Administration of Sentences) Act, ss 236A, 236B

Cases
- R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
- El Khouli v R [2019] NSWCCA 146
- El-Hilli and Melville v R [2015] NSWCCA 146
- R v Williams [2020] NSWCCA 348