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Court of Criminal Appeal 9 December 2022

Park v R

[2022] NSWCCA 263

Sexual offences
SIGNIFICANT PROPORTION OF NON

Citation: Park v R [2022] NSWCCA 263
Court: Court of Criminal Appeal, NSW
Date: 9 December 2022
Judges: Basten AJA; Garling J; R A Hulme AJ

Background

The applicant was convicted by jury of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The complainant, a 19-year-old employee at the applicant's restaurant, was found by the jury to have lacked the capacity to consent due to intoxication. The applicant was acquitted on two other counts and the jury was unable to reach a verdict on a fourth. He was sentenced to two years and six months imprisonment with a non-parole period of one year and three months, commencing 20 April 2022 and expiring 19 July 2023.

The applicant filed an application for leave to appeal against his conviction, listed for hearing on 10 February 2023. Prior to that hearing, he applied for bail under s 61 of the Bail Act 2013 (NSW). The Court heard the bail application on 29 November 2022 and refused it at that time, with these reasons delivered on 9 December 2022.

  • Whether the applicant had established "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW), which is a prerequisite to granting bail where a conviction appeal is pending in the Court of Criminal Appeal
  • Whether the proposed grounds of appeal, the time to be served in custody, and the applicant's subjective circumstances, individually or in combination, were sufficient to meet that threshold

Decision

Section 22 of the Bail Act 2013 prohibits a court from granting bail pending a conviction appeal on indictment unless the applicant establishes "special or exceptional circumstances." The Court described this as a "significant hurdle," consistent with established authority. Relevant factors that may contribute to such circumstances include the merits of the proposed appeal and the prospect that the applicant will have served all or a substantial part of the non-parole period before the appeal is determined.

The Court considered three proposed grounds of appeal: that the guilty verdict was unreasonable given the mixed jury verdicts; that the trial judge failed to give a full Liberato direction (concerning how a jury should approach a conflict between the accused's evidence and the complainant's); and that the trial judge misdirected the jury on delay in complaint. Because only limited materials were available, the Court confined itself to a broad assessment of arguability rather than forming a concluded view on prospects of success. It found scope for argument in the applicant's favour, but could not characterise his prospects as "strong." It also noted that two of the three grounds concerned directions that should have been raised with the trial judge and no explanation was offered as to why they were not.

The applicant also relied on the proportion of his non-parole period that would be served by the time of the appeal hearing, as well as personal hardship, including his wife's difficulty managing the restaurant and their child being cared for by relatives overseas. The Court acknowledged these were significant matters, but observed that hardship resulting from incarceration is a common feature of bail pending appeal applications and cannot, on its own, amount to a special or exceptional circumstance.

Taking the three factors together, their combined weight was insufficient to cross the threshold. The Court refused the application accordingly.

Orders Made

  • The bail release application was refused.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), an applicant seeking bail pending a conviction appeal on indictment faces a "significant hurdle": they must first establish special or exceptional circumstances before any bail concerns are assessed.
  • Two factors that commonly contribute to special or exceptional circumstances are the merit of the proposed appeal and the likelihood that the non-parole period will be substantially served before the appeal is heard, but neither factor is automatically sufficient on its own.
  • Where a bail application is heard before the appeal itself, the Court of Criminal Appeal limits itself to a broad assessment of whether grounds are arguable, rather than reaching any concluded view on prospects of success, because the full appeal materials are rarely available at that stage.
  • Failure to raise a ground of complaint with the trial judge during the trial, without explanation, is a factor that weighs against characterising appeal prospects as strong.
  • Personal and family hardship resulting from imprisonment, while acknowledged as significant, will often not suffice to establish special or exceptional circumstances because such hardship is a common feature of incarceration pending appeal.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 22, 61 and 71
- Crimes Act 1900 (NSW), ss 61I, 61J and 61KD
- Criminal Appeal Act 1912 (NSW), ss 5 and 6
- Supreme Court (Criminal Appeal) Rules 2020 (NSW), r 4.15
- Criminal Procedure Act 1986 (NSW), s 294

Cases:
- United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- El-Hilli and Melville v R [2015] NSWCCA 146
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Ambury [2017] NSWCCA 115
- Gould v R (Cth) [2021] NSWCCA 27
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271