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Court of Criminal Appeal 26 June 2023

Day v R

[2023] NSWCCA 160

Fraud & dishonesty
CRIME BAIL

Citation: [2023] NSWCCA 160
Court: Court of Criminal Appeal (NSW)
Date: 26 June 2023
Judge(s): Simpson AJA; Lonergan J; Dhanji J

Background

The applicant was found guilty by a jury in the District Court on 30 June 2022 of 34 counts of embezzlement by a clerk or servant, contrary to s 157 of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment, which he was serving at the time of this application.

The applicant applied to the Court of Criminal Appeal for leave to appeal against his convictions. That application was heard on 23 June 2023. Following the hearing, each member of the Court was satisfied that one ground of appeal (Ground 2) had been made out, meaning it would be appropriate to quash the convictions and order a new trial.

However, the Court was not in a position to dispose of two other grounds of appeal, one of which could potentially result in the applicant's acquittal. Accordingly, the Court could not make final orders on the appeal. In the meantime, the applicant made a release application seeking bail pending the determination of his appeal.

  • Whether "special or exceptional circumstances" existed to justify the grant of bail under s 22(1)(a) of the Bail Act 2013 (NSW), which restricts bail where an appeal is pending before the Court of Criminal Appeal.

  • Whether bail should be granted where one ground of appeal had been upheld (necessitating the quashing of convictions and a retrial) but the Court had not yet resolved remaining grounds of appeal.

Decision

The Court found that special or exceptional circumstances justifying bail did exist. The critical factor was the success of Ground 2 of the appeal. Because that ground was made out, the applicant would be entitled to orders quashing his convictions and directing a new trial. As a consequence, he was entitled to be treated as an unconvicted person subject to a charge.

The Court also noted that prior to his District Court trial, the applicant had been on bail. The Crown did not oppose the grant of bail, subject to conditions that had been agreed between the parties.

On this basis, the Court considered it appropriate to make an order granting bail on the agreed conditions.

Orders Made

  • Bail was granted to the applicant, subject to conditions agreed between the parties.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the successful establishment of a ground of appeal leading to the quashing of convictions and a retrial can constitute "special or exceptional circumstances" under s 22(1)(a) of the Bail Act 2013 (NSW).
  • Where convictions are to be quashed and a new trial ordered, the applicant is entitled to be treated as an unconvicted person subject to a charge, a factor the Court regarded as significant in the bail assessment.
  • In granting bail before all grounds of appeal had been resolved, the Court demonstrated that a sufficiently compelling successful ground can justify release even when outstanding grounds (including one that could potentially lead to acquittal) remain undetermined.
  • No opposition from the Crown was advanced, and the agreed bail conditions, combined with the applicant's prior history of compliance on bail, further supported the decision to grant release.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 22, 49, 61
- Crimes Act 1900 (NSW), s 157

Cases:
- No cases were cited in the judgment.