Citation: DC v Director of Public Prosecutions (NSW) [2024] NSWCCA 235
Court: Court of Criminal Appeal
Date: 6 December 2024
Judge(s): Basten AJA; Dhanji J (primary judgment); Sweeney J
Background
The applicant was convicted in the District Court following a judge-alone trial on one count of arson and eight counts of fraud connected to that arson. In December 2023 he was sentenced to five and a half years' imprisonment with a non-parole period of three and a half years, commencing October 2023. His non-parole period was set to expire in April 2027.
Having sought leave to appeal against his convictions, the applicant appeared before the Court of Criminal Appeal unrepresented. The Court heard full argument on the leave application and reserved its decision. The applicant then applied separately for bail pending that appeal, under s 49 of the Bail Act 2013 (NSW).
In support of bail, the applicant relied on the merits of his appeal, his personal circumstances (including the needs of his minor children, a grandchild with serious disabilities, and a young daughter recently placed into care), and his own health concerns arising from hospitalisation and two assaults while in custody.
Legal Issues
- Whether the applicant had established "special or exceptional circumstances" justifying a grant of bail under s 22(1)(a) of the Bail Act 2013 (NSW), the mandatory threshold that applies where an appeal against a conviction on indictment is pending
- How the merits of a pending appeal should be weighed when the Court of Criminal Appeal has already heard full argument but not yet delivered judgment
- Whether the applicant's personal circumstances, including family responsibilities and health issues, were sufficient in combination with his appeal prospects to satisfy that threshold
Decision
Section 22(1)(a) of the Bail Act 2013 prohibits a court from granting bail where a conviction appeal is pending unless "special or exceptional circumstances" exist that justify that decision. Dhanji J described this as a "significant" hurdle, following HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141. The word "justify" in the provision requires more than simply identifying unusual factors; those circumstances must be sufficiently weighty to warrant release of a convicted person.
The Court acknowledged an unusual procedural posture: full argument on the leave application had already been heard, meaning the Court was not as constrained as it ordinarily would be in assessing appeal merits. However, Dhanji J was careful to note that this approach should not be treated as a routine course. No decision had yet been made on the appeal, and determining the bail application was not the appropriate moment to resolve the underlying arguments. The applicant sought to rely on new evidence that remained unresolved, and Dhanji J was unable to characterise the prospects of success as high.
On the length of sentence, the Court accepted that the applicant would serve a substantial part of his non-parole period before the appeal was resolved. However, any additional time in custody attributable to refusing bail was not expected to be substantial, given the anticipated timing of the Court's judgment.
Turning to personal circumstances, Dhanji J expressed genuine sympathy for the applicant's situation, including concerns about his teenage children, his recently abandoned daughter placed into care, his disabled grandson, and his own health difficulties. Nonetheless, applying the requirement to weigh all relevant matters together against the backdrop of confirmed convictions and a properly imposed sentence, the Court was not satisfied that the combined circumstances were sufficiently special or exceptional to justify bail. The application was refused.
Orders Made
• Bail is refused
Key Takeaways
- Under s 22(1)(a) of the Bail Act 2013 (NSW), an applicant seeking bail while a conviction appeal is pending faces a significant threshold: they must demonstrate special or exceptional circumstances that affirmatively justify a bail decision, not merely circumstances that are unusual.
- Hearing full argument on a leave to appeal application before determining a bail application is not a course the Court of Criminal Appeal regards as routine, and its occurrence in this case reflected particular procedural features rather than an emerging practice.
- Where the prospect of conviction appeal success cannot be characterised as high, and where the additional time in custody from refusing bail is not expected to be substantial, those factors will weigh against a finding of special or exceptional circumstances.
- Compelling personal circumstances, including family care responsibilities and health concerns, are relevant considerations under s 22(1)(a) but must be assessed in combination with all other factors, including the existence of convictions that are to be treated as properly imposed until set aside.
- In applying the El Khouli and Fantakis framework, the interaction between the relative strength of the appeal and the utility that bail would serve remains central to the assessment, particularly whether refusing bail would render any successful appeal practically futile.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16A, 22, 49, 61
Cases
- El Khouli v R [2019] NSWCCA 146
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] 97 NSWLR 246; [2018] NSWCA 47