AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 14 February 2023

R v JC

[2023] NSWSC 111

Sexual offences
CRIME BAIL RELEASE APPLICATION “SPECIAL OR EXCEPTIONAL CIRCUMSTANCES” MATTERS TO BE TAKEN INTO ACCOUNT FRESH EVIDENCE

Citation: R v JC [2023] NSWSC 111
Court: Supreme Court of NSW
Date: 14 February 2023
Judge: Cavanagh J

Background

The applicant was convicted by a judge alone in the District Court of two offences: indecent assault of a person under 16 years, and possession of child abuse material. He was acquitted by directed verdict of a third count at the close of the Crown case. On 18 November 2022, he was sentenced to 4 years' imprisonment with a non-parole period of 2 years and 7 months for the first offence, and a concurrent fixed term of 6 months for the second offence.

The applicant sought leave to appeal both his conviction and his sentence in the Court of Criminal Appeal. With those appeals pending, he applied to the Supreme Court for bail. He had previously spent over four years on strict bail conditions awaiting trial without any non-compliance.

The sole contested issue on the bail application was whether the applicant had established "special or exceptional circumstances" justifying release under section 22 of the Bail Act 2013 (NSW). The Crown did not raise any unacceptable risk concerns and did not oppose bail if that threshold was met.

Legal Issues

  • Whether the applicant established "special or exceptional circumstances" under section 22 of the Bail Act 2013 to justify bail pending appeal in the Court of Criminal Appeal
  • What standard applies when assessing prospects of appeal as one of a combination of factors (as opposed to the sole factor) in a section 22 application
  • Whether, once special or exceptional circumstances were established, the applicant posed an unacceptable risk justifying refusal of bail

Decision

The applicable test under section 22:

Section 22 of the Bail Act 2013 requires an applicant to establish "special or exceptional circumstances" before any question of unacceptable risk is considered. Cavanagh J confirmed the two-stage framework set out in El-Hilli and Melville v R [2015] NSWCCA 146: special or exceptional circumstances must first be demonstrated; if so, the unacceptable risk test then applies (at [6]-[7]).

The correct approach to a combination of factors:

A dispute arose between the parties on the proper approach. The Crown urged Cavanagh J to follow Walton J's approach in R v Rodriguez [2020] NSWSC 1660, where each factor was assessed individually and, because the sole remaining factor was the appeal's strength, the applicable standard was whether the appeal was "likely to succeed." Cavanagh J declined to apply that standard here. His Honour accepted that where an applicant relies on a combination of factors, the court should weigh all factors collectively and not dismiss any individual factor unless it could carry no weight at all. In such cases, the appropriate standard for assessing appeal prospects is whether the appeal is "reasonably arguable" rather than "likely to succeed" (at [14]-[22]).

Fresh evidence and grounds of appeal:

The applicant sought to rely on fresh evidence in the form of material posted on fetlife.com by the witness BH, including photographs showing BH with a dummy in her mouth and the word "daddy" written across her thigh. This evidence was potentially significant because the trial judge had specifically accepted BH's denial of any interest in the type of sexual conduct at issue, and BH's evidence underpinned key tendency evidence used against the applicant (at [41]-[42], [56]-[60]). Cavanagh J noted the police confirmed the material came from BH's account and the photographs depicted BH, contrary to the Crown's suggestion that this had not been established (at [58]).

The applicant raised six grounds of appeal, including failures to give certain directions (sections 165 and 133 of the Evidence Act and Criminal Procedure Act respectively), alleged reversal of the onus of proof, unreasonable verdict, and the fresh evidence ground. His Honour observed that the first four grounds faced meaningful obstacles, particularly because trial counsel had not sought several of the directions at trial. However, Cavanagh J was satisfied that the grounds of appeal, taken together with the fresh evidence, were "reasonably arguable" and could not be characterised as hopeless or unarguable (at [43]-[63]).

Special or exceptional circumstances established:

Cavanagh J found that the combination of factors established special or exceptional circumstances. The two factors carrying the most weight were the reasonably arguable prospects on appeal and the likelihood that the applicant would spend up to 18 months in custody, potentially representing up to two-thirds of his non-parole period, before the appeal was determined (at [65]-[67]). Hardship to the applicant's partner, who had not recovered as expected from a hip operation and required care, was also relevant, though given lesser weight (at [68]-[69]). The applicant's four-plus years of compliance with strict bail conditions was accorded some weight as well (at [72]). Cavanagh J was satisfied the applicant did not pose an unacceptable risk subject to appropriate conditions (at [77]).

Orders Made

  • Bail granted subject to conditions including:
  • Residence at a specified address with his partner
  • Curfew between 9:00pm and 7:00am
  • Daily reporting to Eastwood Police Station
  • No unsupervised contact with any child, including his partner's child
  • Passport surrendered; not to apply for a new passport; not to approach within 2 kilometres of any departure point from Australia or NSW
  • Two cash sureties ($50,000 and $20,000)
  • Alcohol and drug abstention conditions
  • No contact of any kind with prosecution witnesses BH or AS
  • Technology restrictions, including possession of one mobile phone only, no encrypted applications, no social media, and weekly phone presentation to Eastwood Police Station

Key Takeaways

  • Under section 22 of the Bail Act 2013, where an applicant relies on a combination of factors to establish special or exceptional circumstances, the court assesses all factors together and gives each such weight as it considers appropriate; the relevant standard for assessing appeal prospects in that context is whether the appeal is "reasonably arguable," not whether it is "likely to succeed" (at [20]-[22]).

  • A single factor need not independently constitute special or exceptional circumstances; even factors that would carry little weight alone remain relevant contributions to a cumulative assessment (at [22]-[24]).

  • Significant weight attaches to the prospect that an applicant will spend a substantial portion of their non-parole period in custody before an appeal is determined, particularly where the appeal is reasonably arguable (at [67]).

  • Fresh evidence capable of undermining a key witness's credibility at trial can contribute materially to a finding that an appeal is reasonably arguable, even though the court at a bail hearing works from limited material and without a full transcript (at [40]-[42], [56]-[61]).

  • Prolonged compliance with strict bail conditions prior to sentencing carries some weight in the special or exceptional circumstances analysis, though it is a less significant factor than appeal prospects and time served relative to the non-parole period (at [72]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 18, 22
- Crimes Act 1900 (NSW), ss 61N, 61O, 91H
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s s 128, 165
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- El-Hilli and Melville v R [2015] NSWCCA 146
- Liberato v The Queen (1985) 159 CLR 507
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v George Patrick O’Neill, Court of Criminal Appeal (NSW), Mathews J, 13 May 1992, unrep
- R v Murray (1987) 11 NSWLR 12
- R v Rodriguez [2020] NSWSC 1660