Citation: [2024] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 28 August 2024
Judge(s): Fagan J; N Adams J; Faulkner J
Background
The applicant had been convicted after two separate jury trials: one for seven domestic violence offences and one for offences involving the making and use of false documents. On 9 May 2024, a single aggregate sentence of 7 years and 9 months was imposed, with a non-parole period of 3 years and 6 months. The sentence commenced on 19 January 2022, making the applicant first eligible for parole on 18 July 2025.
The applicant sought bail pending his proposed appeals against both conviction and sentence. An initial application to the Supreme Court was refused by Sweeney J on 4 July 2024. The applicant then filed a further application in the Court of Criminal Appeal under s 67(1)(e) of the Bail Act 2013 (NSW).
The application was complicated by the applicant's additional circumstances: in August 2024, he had pleaded guilty to two further groups of serious offences, including perverting the course of justice by staging a motor vehicle collision, and falsely nominating other people as drivers of vehicles involved in traffic offences. Those matters were listed for sentencing on 20 September 2024.
Legal Issues
- Whether the applicant could establish "special or exceptional circumstances" required under s 22 of the Bail Act 2013 (NSW) for bail to be granted pending an appeal
- Whether the proposed appeals against conviction and sentence were most likely to succeed
- Whether the applicant's personal circumstances, including the risk of mortgagee sale of his property, constituted special or exceptional circumstances
Decision
Under s 22 of the Bail Act 2013, a court must not grant appeal bail unless the applicant establishes special or exceptional circumstances. The applicant had not filed formal notices of appeal against conviction, nor applications for leave to appeal against sentence, and no hearing dates had been set. The Court found that the appeals remained in their earliest stages, with no substantive preparation completed.
The Court assessed whether the proposed appeals were most likely to succeed, a factor relevant to the special circumstances inquiry. The applicant's grounds included alleged errors in the conduct of the domestic violence trial (where he had represented himself) and alleged problems with access to seized mobile phones in the false documents trial. The Court was not satisfied that the proposed appeals met the "most likely to succeed" standard required by the authorities.
The prospect of a further custodial sentence being imposed on 20 September 2024 weighed against the application. Even if bail were granted, the applicant faced a real likelihood of being returned to custody shortly after the hearing, which undermined the utility of any grant of bail. The Court noted that the Crown had indicated it would submit that time served was sufficient for the car crash offence, but had no position on the driver-nomination offences, leaving the outcome of the upcoming sentence hearing uncertain.
The applicant's personal circumstances, including the claimed risk of mortgagee sale of his home, were not accepted as sufficient. The Court found no evidence of dependent family members, no evidence that anyone resided at the property, and noted that the unspoken premise of the financial hardship argument, that bail would improve the applicant's prospects with lenders, was doubtful given his imminent sentencing for dishonesty offences. The application was dismissed.
Orders Made
- Bail application dismissed.
Key Takeaways
- Under s 22 of the Bail Act 2013 (NSW), a court must not grant appeal bail unless the applicant affirmatively establishes special or exceptional circumstances; the burden rests entirely on the applicant.
- A proposed appeal that remains in its earliest stages, with no notice of appeal filed, no leave application lodged, and no hearing date set, is unlikely to satisfy the requirement that the appeal be most likely to succeed.
- Where a pending sentencing hearing for serious offences creates a real likelihood that the applicant will be returned to custody shortly after any bail grant, that prospect is a relevant factor weighing against the application.
- Personal and financial hardship claims, such as the risk of losing a property to mortgagee sale, must be supported by evidence; bare assertions without evidentiary foundation will not establish special or exceptional circumstances.
- A further bail application to the Court of Criminal Appeal following refusal by a single judge is treated as a fresh application, meaning criticism of the earlier decision is set aside rather than reviewed.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 22, 67(1)(e)
- Criminal Appeal Act 1912 (NSW), ss 5F(3), 10(2)(b)
- Supreme Court (Criminal Appeal) Rules 2021, r 3.1(3)
- Crimes Act 1900 (NSW)
- Oaths Act 1900 (NSW)
- Uncollected Goods Act 1995 (NSW), ss 20, 21
Cases:
- Dietrich v R (1992) 177 CLR 292
- El-Hilli and Melville v R [2015] NSWCCA 146
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467
- Mehajer v R [2023] NSWCCA 101
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Cranston [2020] NSWSC 469
- R v Khayat (No 11) [2019] NSWSC 1320
- Robinson v R (1991) 65 ALJR 519
- Samandi v DPP [2020] NSWCCA 102