Citation: Bobbe v R [2021] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 24 March 2021
Judges: Macfarlan JA, Walton J, Hamill J (judgment by Hamill J, with whom the others agreed)
Background
The applicant was convicted in the District Court following guilty pleas to indecent assault, taking and detaining a person for advantage, failing to stop during a police pursuit, and drink driving. The offences involved two young women met through an online travel app, and the facts included serious sexual conduct and a sustained police chase. The applicant received an aggregate sentence of six years with a non-parole period of three years and six months, expiring in February 2022.
The applicant appealed against his conviction and sentence to the Court of Criminal Appeal, with the appeal listed for hearing on 7 May 2021. He appeared without legal representation in both the bail application and, apparently, the forthcoming appeal.
A second set of proceedings arose from an alleged escape from Kirkconnell Correctional Centre on 4 December 2020, while the applicant was serving his sentence. The Supreme Court had previously refused bail on that charge. The present application before the Court of Criminal Appeal addressed both matters.
Legal Issues
- Whether "special or exceptional circumstances" existed under s 22 of the Bail Act 2013 (NSW) to justify bail pending the conviction appeal arising from guilty pleas entered in the District Court
- Whether the appeal grounds raised an arguable case sufficient to contribute to special or exceptional circumstances
- Whether bail should be granted in respect of the separate escape from lawful custody charge, and whether the defence of necessity had any reasonable prospect of success
- Whether the proposed bail conditions adequately mitigated the identified risks under the Bail Act
Decision
Bail pending the conviction appeal. Under s 22 of the Bail Act 2013, bail after a sentence on indictment requires the applicant to establish special or exceptional circumstances. Hamill J described this as a relatively strict test, at least as stringent as the "show cause" threshold. The applicant's core appeal grounds were that he was not guilty, that his lawyers misled him, and that he was pressured into pleading guilty. Hamill J accepted that a claim of legal misadvice leading to a guilty plea could, in principle, amount to an arguable appeal ground. However, on the evidence before the Court, including correspondence between the applicant's former lawyers and the DPP and a signed agreed facts document bearing an interpreter's notation, there were serious difficulties with the claim that the pleas were involuntary or the result of misadvice. The strength of the appeal grounds was not sufficient, in the circumstances, to establish special or exceptional circumstances.
Bail for the escape charge. The applicant intended to rely on a defence of necessity for the escape offence. The court applied the principle from R v Rogers (1996) 86 A Crim R 542, which in turn drew on United States v Bailey, requiring that necessity (not mere preference) compelled the escape, and that it was the only reasonable alternative given the imminence of the threat. On the evidence before the Court, the prosecution case appeared strong and the necessity defence faced significant hurdles. The nature of the charge, the apparent strength of the prosecution case, and the applicant's criminal history gave rise to concerns about the risk of further offending, danger to the community, and failure to appear. The proposed bail conditions did not adequately mitigate those risks, and bail was refused under s 19 of the Bail Act.
Ongoing position. Hamill J noted that the escape charge bail application could be revisited if the applicant was released following the outcome of his conviction appeal in May 2021, though that would likely be a matter for a different court.
Orders Made
- The release application is dismissed.
- Bail is refused.
Key Takeaways
- Under s 22 of the Bail Act 2013 (NSW), bail after sentence on indictment requires the applicant to establish special or exceptional circumstances, a test at least as demanding as the "show cause" threshold, though not insurmountable.
- Where an appeal against conviction follows guilty pleas, claims of legal misadvice or involuntary pleading can in principle contribute to special or exceptional circumstances, but the strength of those grounds will be closely scrutinised on the available evidence.
- Refusing bail on the escape charge, the Court applied the established principle from R v Rogers that a defence of necessity in a prison escape context requires the escapee to demonstrate that escape was the only reasonable alternative to an imminent threat, not merely a preferred or expedient response.
- A combination of factors, including the nature of the charges, the apparent weakness of proposed defences, criminal history, and inadequate proposed conditions, may together sustain a finding of unacceptable risk under the Bail Act, even where some risks might be partially mitigated by conditions such as detention at an immigration facility.
- Dismissal of a bail application does not permanently preclude a fresh application if circumstances change, such as following the determination of a related conviction appeal.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 22, 61, 67
- Crimes Act 1900 (NSW), ss 61L, 86
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- El-Hilli and Melville v R [2015] NSWCCA 146
- R v Rogers (1996) 86 A Crim R 542
- United States v Bailey (1979) 444 US 394
- R v Williams [2020] NSWCCA 348
- McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99
- R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
- R v Moore [2015] NSWSC 1262
- R v JB [2014] NSWSC 1964
- AC v R [2016] NSWCCA 107
- Kristensen v R [2018] NSWCCA 189
- Layt v R [2020] NSWCCA 231
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- R v Mirzaee [2004] NSWCCA 315
- R v Van Hong Pham [2005] NSWCCA 94