Citation: Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927
Court: Supreme Court of New South Wales
Date: 11 July 2022
Judge: Bellew J
Background
The respondent was convicted by a jury of eight counts of intentionally sexually touching a child, contrary to the Crimes Act 1900 (NSW). Each count carried a maximum penalty of 10 years imprisonment. Following the verdicts in the District Court, the sentencing judge declined to detain the respondent and instead released him on bail pending sentence, finding that existing bail conditions were sufficient and that he did not pose a significant flight risk.
An amendment to the Bail Act 2013 (NSW) then introduced section 22B, which governs the position of offenders released between conviction and sentence. The Director of Public Prosecutions subsequently applied to the Supreme Court for the respondent's detention under that new provision.
Between verdict and the Supreme Court hearing, the respondent was diagnosed with prostate cancer and scheduled for surgery. His treating surgeon also raised the possibility of bowel cancer, leading to further investigations. These health developments became central to the application.
Legal Issues
- Whether the amendment to the Bail Act 2013 (NSW) introducing section 22B applied to the Director's detention application (including whether the amendment operated retrospectively and thereby breached common law principles or relevant statutory provisions).
- Whether the Director had established, to the standard required by section 22B, that the respondent "will" be sentenced to a period of full-time custody.
- Whether "special or exceptional circumstances" existed within the meaning of section 22B so as to justify the respondent's continued release.
Decision
Retrospectivity of the amendment: Bellew J held that the section 22B amendment was not retrospective in operation and did not breach common law principles or the Interpretation Act 1987 (NSW). The judgment drew an important distinction between legislation that alters the legal character of past events (which would be impermissibly retrospective) and legislation that bases future action on past events (which is not). Because section 22B governed a future detention application, it fell into the latter category and applied to the Director's application without difficulty.
Whether full-time custody was certain: Section 22B required the Director to demonstrate that the respondent "will" be sentenced to full-time custody. Bellew J considered the meaning of "will" in this context, approaching it as requiring more than mere probability. The judgment noted the seriousness of the offending and the constraints on courts in imposing non-custodial alternatives, but the precise resolution of this issue was ultimately overtaken by the third issue.
Special or exceptional circumstances: Even assuming the threshold on full-time custody was met, section 22B permits continued release where special or exceptional circumstances exist. In the course of oral argument, senior counsel for the Director conceded, without equivocation, that the respondent's health situation (a confirmed diagnosis of prostate cancer requiring surgery and investigations into a possible bowel cancer diagnosis) constituted special or exceptional circumstances. Senior counsel expressly accepted that this concession meant the detention application should be dismissed. Bellew J accepted the concession and dismissed the application accordingly, without needing to determine whether the respondent's separate desire to remain at liberty to arrange his affairs also qualified.
Orders Made
- The detention application is dismissed.
Key Takeaways
- An amendment to the Bail Act 2013 (NSW) is not retrospective in operation merely because it applies to a person whose conviction predated the amendment. The key distinction is between legislation that changes the legal effect of a past event and legislation that uses a past event as the foundation for a future exercise of power.
- Under section 22B of the Bail Act 2013 (NSW), a detention application requires the applicant to establish that the offender "will" be sentenced to full-time custody. The precise standard this demands was considered but not finally resolved in this decision, given the application's outcome.
- A serious medical diagnosis, specifically confirmed cancer requiring surgery with further investigations into a potentially additional condition, was accepted by the Director as constituting "special or exceptional circumstances" within the meaning of section 22B, sufficient to defeat a detention application.
- In dismissing the application, the court did not need to address whether an offender's wish to remain at liberty to arrange personal affairs could independently satisfy the "special or exceptional circumstances" requirement.
- This decision should be read alongside the contemporaneous judgment in Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938, which also considered section 22B and is cross-referenced in the reasoning here.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), in particular s 22B
- Bail Act 1978 (NSW)
- Crimes Act 1900 (NSW)
- Interpretation Act 1987 (NSW)
- Bail Regulation 2021 (NSW)
Cases:
- Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938
- Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
- Mine Subsidence Board v Wambo Coal Pty Limited (2007) 154 LGERA 60; [2007] NSWCA 137
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Robertson v City of Nunawading [1973] VR 819
- Re A Solicitor's Clerk [1957] 1 WLR 1219
- La Macchia v Minister for Primary Industry (1986) 72 ALR 23
- Geschke v Del-Monte Home Furnishers Pty Limited [1981] VR 856
- R v Tapueluelu (Supreme Court of NSW, 5 January 2004, unreported)
- R v Young [2006] NSWSC 1499
- R v Tillman [2008] NSWSC 1227