Citation: Simpson v R (No 2) [2021] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 16 December 2021
Judge(s): Harrison J; Davies J; Dhanji J
Background
The applicant had been granted conditional bail by the Court of Criminal Appeal on 10 November 2021 (Simpson v R [2021] NSWCCA 264). Despite that grant, the applicant had not been able to enter his bail, meaning the conditions as originally framed prevented him from actually being released.
The parties cooperated and agreed on a set of variations to the existing conditions. The agreed changes were designed to allow the applicant to enter bail without materially increasing the risks identified under the Bail Act 2013 (NSW).
The Court of Criminal Appeal considered whether it should hear the variation application itself, rather than leaving the applicant to approach the District Court, where the proceedings were pending.
Legal Issues
- Whether the Court of Criminal Appeal had power to hear a bail variation application in respect of its own earlier bail decision
- Whether the District Court's power to hear such an application was limited, given that bail had already been decided by a superior court
- Whether the proposed variations would cause the applicant to present an unacceptable risk under the Bail Act
Decision
The Court confirmed that it had power under s 63(1) of the Bail Act to hear a variation application relating to its own earlier bail decision. The District Court also had power to hear such an application under ss 48 and 61, but that power was limited by s 69, which would have required the applicant to satisfy the District Court that "special facts or circumstances" justified hearing the application.
The Court was satisfied it should deal with the application itself. Although the special facts or circumstances test under s 69 might have been met in the District Court, it was more straightforward for the Court of Criminal Appeal to resolve the matter given it had made the original decision.
On the substantive question, the Court found that the agreed variations would not materially increase the bail concerns identified under s 17(2) of the Bail Act. One change involved deleting a condition requiring surrender of any current passport, after the respondent confirmed no current passport existed. The remaining variations were directed at allowing the applicant's elderly parents to support his compliance without placing an undue burden on them.
The Court concluded that, with the agreed variations in place, the applicant did not present an unacceptable risk within the meaning of s 19 of the Bail Act.
Orders Made
- Condition (b) substituted: the applicant to reside with his parents at a specified East Hills address and not be absent unless in their company, except for direct travel upon release from custody, attendance at Downing Centre District Court, and reporting to Revesby Police Station
- Condition (f) substituted: the applicant to travel by train directly from the correctional centre to his residential address upon release
- Condition (g) deleted: the requirement to surrender any current passport was removed
- Condition (h) substituted: the applicant not to apply for any travel document or possess or apply for a passport in any name
- Condition (i) substituted: the applicant not to go within 500 metres of any point of departure from Australia, with an exception for public transport that passes within that distance provided he remains on the vehicle
Key Takeaways
- Under s 63(1) of the Bail Act 2013 (NSW), a court may hear a variation application in respect of its own earlier bail decision.
- Where bail has been decided by the Court of Criminal Appeal, the District Court's power to subsequently hear a bail application is qualified by s 69 of the Bail Act, requiring the applicant to demonstrate special facts or circumstances justify the hearing.
- A bail condition that, in practice, prevents an applicant from entering bail at all may be varied where the parties agree and the court is satisfied no unacceptable risk arises under s 19 of the Bail Act.
- Deleting a condition that has become redundant on the facts (here, surrender of a non-existent passport) is preferable practice to avoid unnecessary delay in an applicant's release.
- The Court of Criminal Appeal exercised its discretion to resolve the variation itself rather than remitting the matter to a lower court, in the interests of efficiency and given its familiarity with the original decision.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17(2), 19, 48, 51, 61, 63(1), 69
Cases:
- Simpson v R [2021] NSWCCA 264 (the original bail decision in these proceedings)