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Supreme Court 14 April 2023

DPP (NSW) v Hayne

[2023] NSWSC 377

Sexual offences
CRIME — B AIL — DETENTION APPLICATION VARIOUS FACTORS RELIED UPON CONDITIONS OF CUSTODY SHORT REMAND ABSENCE OF UNACCEPTABLE RISKS BAIL REVOKED

Citation: DPP (NSW) v Hayne [2023] NSWSC 377
Court: Supreme Court of New South Wales
Date: 14 April 2023
Judge: Button J

Background

A respondent, a former professional rugby league player, was found guilty by jury on 4 April 2023 of two counts of sexual intercourse without consent against an adult victim. Despite conviction, he remained on strict bail for ten days before the Crown brought a detention application in the Supreme Court. Both parties agreed that a custodial sentence was inevitable.

The application was heard de novo, meaning Button J considered the matter afresh rather than reviewing the District Court judge's decision for error. The question before the court was whether the respondent had established the statutory threshold required to remain at liberty following conviction for serious sexual offences.

  • Whether the respondent had established "special or exceptional circumstances" justifying continuation of bail under s 22B of the Bail Act 1978 (NSW), either individually or in combination across the five factors he relied upon
  • Whether the absence of any unacceptable risk under the Bail Act could itself constitute a special or exceptional circumstance in this context
  • Whether the short period until the sentencing hearing, the conditions of custody, the effect on family, the difficulty in preparing sentence proceedings, and the significant media interest amounted to circumstances meeting the statutory threshold

Decision

Button J identified five factors advanced on the respondent's behalf and rejected each of them, both individually and in combination. First, logistical difficulty in preparing for sentencing proceedings while in custody was not special or exceptional. Such difficulties affect all criminal proceedings, and the court found they could be managed by the respondent's legal team.

Second, the significant media and online interest generated by the respondent's former professional profile, and its distressing effect on him and his family, did not meet the threshold. Criminal proceedings involving serious offences frequently attract intense public attention, and fame does not transform that ordinary feature of the justice system into an exceptional circumstance. Any safety concerns arising from that interest could be addressed by other means not requiring the respondent's liberty.

Third, the prospect of strict protective custody conditions within prison was not a special or exceptional circumstance. All imprisonment involves deprivation of liberty, and graduated levels of restriction are a standard feature of the prison system. Fourth, the absence of any unacceptable risk under the Bail Act could not constitute a special or exceptional circumstance: Parliament has imposed an entirely separate and more demanding test following conviction, and the very offences proven are what trigger the section in the first place.

Fifth, the short remand period of 25 days to the sentencing hearing did not assist the respondent. Button J observed that a brief remaining period argues both ways and could not, in the circumstances, constitute grounds for release. Considered in combination, the court assessed the respondent's overall position as "at most unusual," which fell well short of special or exceptional circumstances justifying bail.

Orders Made

  • The detention application was upheld.
  • Bail was revoked.
  • The respondent was remanded into custody.

Key Takeaways

  • Under s 22B of the Bail Act 1978 (NSW), a convicted person must establish "special or exceptional circumstances" justifying release on bail; the ordinary presumption in favour of bail does not apply in this context.
  • A conviction by jury establishes guilt for all purposes within the criminal justice system, rendering the strength of the original Crown case irrelevant to subsequent bail considerations.
  • The absence of any unacceptable risk under the Bail Act cannot itself satisfy the "special or exceptional circumstances" test following conviction for serious sexual offences: Parliament has imposed a distinct and higher threshold, and the offences themselves are what enlivens the provision.
  • Media and public interest in proceedings involving a well-known person, and its distressing effects on the convicted person and their family, did not constitute special or exceptional circumstances. Such interest is a common feature of criminal proceedings involving serious offending or prominent individuals.
  • Factors may be considered in combination as well as individually, but the Supreme Court found that even a holistic assessment of all five factors raised by the respondent reached only the level of "unusual," which was insufficient to justify continued bail.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), s 22B

Cases:
- DPP (NSW) v Van Gestel [2022] NSWCCA 171