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Court of Criminal Appeal 7 March 2023

WR v Director of Public Prosecutions (NSW)

[2023] NSWCCA 38

Sexual offences
BAIL APPEAL AGAINST CONVICTION PENDING UNFITNESS TO STAND TRIAL REASONABLE PROSPECTS OF SUCCESS LIKELY THAT BULK OF NON APPLICANT VULNERABLE

Citation: WR v Director of Public Prosecutions (NSW) [2023] NSWCCA 38
Court: Court of Criminal Appeal
Date: 7 March 2023
Judges: Beech-Jones CJ at CL; Davies J; McNaughton J

Background

The applicant, an 85-year-old man referred to as WR, was convicted in the District Court in December 2021 of three historical sexual offences against his daughter. He was sentenced to five years' imprisonment with a two-year non-parole period, commencing February 2022, making him first eligible for parole in February 2024.

WR lodged a conviction appeal in October 2022, listed for hearing in June 2023. He applied to the Court of Criminal Appeal for bail pending that appeal. Under the Bail Act 2013 (NSW), an applicant seeking bail while a conviction appeal is on foot must first establish "special or exceptional circumstances."

The application centred primarily on a ground of appeal alleging that WR may not have been fit to stand trial, supported by medical and psychiatric evidence about his cognitive state at the time of the proceedings.

  • Whether "special or exceptional circumstances" existed under s 22(1) of the Bail Act 2013 (NSW) to justify the grant of bail pending a conviction appeal
  • What threshold applies when assessing the strength of proposed grounds of appeal in the context of a bail pending appeal application
  • Whether a ground alleging unfitness to stand trial had sufficient prospects of success to contribute to a finding of special or exceptional circumstances
  • Whether the applicant's age, vulnerability, and the likelihood that his non-parole period would largely have elapsed by the time of the appeal hearing were relevant circumstances

Decision

Beech-Jones CJ at CL (with Davies and McNaughton JJ agreeing) granted bail. The court confirmed the framework from El Khouli v R and Fantakis v Director of Public Prosecutions: the strength of grounds of appeal is assessed only by forming a broad overall view of apparent prospects, and that assessment interacts with the utility of the appeal. Where a substantial part of a sentence will have been served before the appeal is heard, a refusal of bail risks rendering the appeal futile or of lesser utility.

The principal ground of appeal was that WR may not have been fit to stand trial. The court applied the principle from R v RTI that a conviction should be quashed on appeal if material raises a question about fitness to stand trial, unless the court is satisfied that any fitness inquiry would reasonably have concluded the accused was fit. Medical evidence placed before the court indicated WR suffered from significant cognitive impairment, and the court was satisfied the ground had reasonable prospects of success, noting that the relevant threshold in RTI is a relatively low one for an appellant to meet in these circumstances.

The court also took into account that WR had already served a substantial portion of his non-parole period and would likely have served the bulk of it before the appeal was heard. His advanced age and vulnerability as an elderly person in custody were additional factors. Together, these matters established special or exceptional circumstances.

The court then considered whether, those circumstances having been established, any unacceptable risk existed under the remaining provisions of the Bail Act. A comprehensive set of bail conditions was crafted to address concerns about community safety and compliance, including restrictions on contact with the complainant and her family, residence and reporting conditions, and a substantial financial surety.

Orders Made

  • Bail granted pending the hearing of the conviction appeal
  • Applicant to be of good behaviour
  • Applicant to appear at the Court of Criminal Appeal on 13 June 2023 and as directed
  • Applicant to reside at a specified address only
  • Applicant to report to a specified police station each Tuesday and Friday between 8am and 8pm
  • Applicant not to be in the company of any person under 18 years unless accompanied by a specified person
  • Applicant to comply with any apprehended violence or domestic violence orders
  • Applicant not to approach or communicate with the complainant, two other named persons, or any children of those persons
  • Applicant to be released in the company of a specified person
  • Applicant to surrender any passport; not to apply for a new passport or travel document
  • Applicant not to approach within 2km of any international point of departure
  • An acceptable person to enter into an agreement to forfeit $200,000 if the applicant fails to appear
  • An acceptable person to provide a character acknowledgement compliant with the Bail Act 2013 (NSW) and Bail Regulations 2014 (NSW)

Key Takeaways

  • Under s 22(1) of the Bail Act 2013 (NSW), bail pending a conviction appeal cannot be granted unless the applicant establishes "special or exceptional circumstances"; assessing the relative strength of grounds of appeal forms part of that inquiry, but the Court of Criminal Appeal confines itself to a broad overall view of apparent prospects rather than a detailed merits determination.
  • A ground of appeal alleging unfitness to stand trial engages the principle from R v RTI: the threshold for an appellant is relatively low, requiring only that material raises a question about fitness, unless the court can be satisfied that a fitness inquiry would reasonably have found the accused fit.
  • The interaction between the strength of a ground of appeal and the utility of the appeal is central to the special circumstances analysis; where a non-parole period will largely have been served before the appeal is heard, the appeal risks becoming futile without bail.
  • An applicant's advanced age and vulnerability in custody are cognate considerations that may contribute to a finding of special or exceptional circumstances when combined with other factors such as meritorious grounds and imminent parole eligibility.
  • Once special or exceptional circumstances are established, the court must still assess unacceptable risk under the Bail Act's general framework, and comprehensive conditions (including financial sureties, contact restrictions, and reporting obligations) may be imposed to address those risks.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 18, 22, 26, 29
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 36

Cases:
- El-Hilli and Melville v R [2015] NSWCCA 146
- El Khouli v R [2019] NSWCCA 146
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
- Obeid v R (No 2) [2016] NSWCCA 321
- Petroulias v R [2010] NSWCCA 95
- R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283
- R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
- R v Presser [1958] VR 45
- United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60