Citation: Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294
Court: Court of Criminal Appeal
Date: 8 December 2021
Judge(s): Basten JA; Adamson J; Wright J
Background
The applicant had been sentenced in 2015 to 12 years' imprisonment, with a non-parole period of 8 years commencing 1 August 2014, following conviction for conspiracy to import border-controlled precursor drugs. Rather than appealing his sentence at the time, he pursued extensive challenges to his conviction, including a Court of Criminal Appeal appeal, a High Court special leave application, and a Part 7 inquiry under the Crimes (Appeal and Review) Act 2001 (NSW). He was unrepresented throughout much of that process.
In October 2021, approximately six years after sentencing, the applicant filed a notice of intention to appeal against sentence. He said that counsel engaged through a Bar Association Pro Bono Panel arrangement had only recently drawn his attention to his available right to appeal against sentence. With the sentence appeal listed for hearing on 4 March 2022 and his non-parole period due to expire on 31 July 2022, he applied for bail pending determination of that appeal.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear the bail application in the absence of a substantive proceeding pending before it
- Whether an extension of time to file the appeal out of time should be granted at this stage
- Whether, if jurisdiction existed, the proposed grounds of appeal satisfied the "special or exceptional circumstances" threshold required for bail pending a sentence appeal under s 22(1) of the Bail Act 2013 (NSW)
Decision
The Court found that it lacked jurisdiction to grant bail. Under s 61 of the Bail Act 2013, a court may hear a bail application only where proceedings for the offence are "pending" before it. Section 59 requires that a "substantive proceeding" be pending, and a bail application itself does not qualify as one. Because the applicant had only filed a notice of intention to appeal, without having obtained an extension of time or lodged an actual application for leave to appeal, no substantive proceeding was on foot. This conclusion was consistent with the Court's earlier approach in Mashayekhi v R [2021] NSWCCA 55.
On the question of whether to grant an extension of time so as to enliven jurisdiction, the Court was not immediately persuaded that the circumstances warranted one at this stage. Although the applicant offered an explanation for the delay, he had in fact held legal representation when his conviction appeal was heard in 2017, and the proposed grounds of appeal did not appear strong enough to justify an extension at the bail stage. The Court left fuller argument for the 4 March 2022 listing.
On the merits of the proposed grounds, the Court considered them in any event. The first ground, challenging the sentencing judge's findings about the applicant's involvement in two importations, appeared to be a reagitation of arguments already rejected both on the conviction appeal and in the Part 7 inquiry. The Court doubted leave would be granted on that basis alone. A parity argument based on the same facts was similarly weak at this stage.
The second ground had more traction: the Director of Public Prosecutions conceded that approximately 43 days of pre-sentence custody had not been taken into account. Success on this ground would, however, only bring the non-parole period back to 18 June 2022, a date more than three months before the listed hearing. Since the appeal would likely be determined before any varied non-parole date expired, this ground could not support release on bail in any event. Even on the most favourable view of the proposed appeal, bail would have been refused for this reason.
Orders Made
- Application for bail refused.
Key Takeaways
- Where an applicant files only a notice of intention to appeal out of time, without obtaining an extension or lodging a substantive appeal, no "substantive proceeding" is pending before the Court of Criminal Appeal and the court has no jurisdiction under the Bail Act 2013 to entertain a bail application.
- Filing a notice of intention to appeal does not alone constitute the commencement of a substantive proceeding for the purposes of ss 5, 59, and 61 of the Bail Act 2013, even though s 10(2)(b) of the Criminal Appeal Act 1912 deems certain notices to render an appeal "pending" for purposes of other Acts.
- Under s 22(1) of the Bail Act 2013, bail pending a sentence appeal requires "special or exceptional circumstances": an arguable ground is not sufficient on its own, and a ground must be strong enough to support release before the likely date on which the appeal will be determined.
- Where an error in the calculation of pre-sentence custody can be corrected by arithmetic adjustment without a general re-exercise of sentencing discretion, that kind of ground does not warrant bail if the corrected non-parole date would still expire after the scheduled hearing date.
- Refusing bail on jurisdictional grounds does not preclude an applicant from advancing fuller submissions on extension of time and the merits when the matter returns to court at a later listing.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 5, 22, 59, 61, 67
- Criminal Appeal Act 1912 (NSW), s 10
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
- Crimes Act 1914 (Cth), s 16E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24
Cases
- Mashayekhi v R [2021] NSWCCA 55
- Almaouie v R [2021] NSWCCA 274
- Cranney v The Queen; Huynh v The Queen (2017) 325 FLR 173; [2017] NSWCCA 234
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255