Citation: Grant v R [2024] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 15 March 2024
Judge(s): Stern JA, Davies J, Campbell J
Background
The applicant, a female former teacher, pleaded guilty in the Local Court to one count of maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900 (NSW). The underlying conduct underpinning that charge consisted of offences against s 81 of the Crimes Act, then titled "Indecent assault on male," which applied to offending between 1977 and 1979. She was convicted and sentenced by Judge Haesler SC to 6 years and 9 months' imprisonment, commencing 20 December 2022, with a non-parole period of 3 years and 4 months.
On 12 February 2024, the Court of Criminal Appeal held in Lam v R [2024] NSWCCA 6 that s 81, as it then stood, was incapable of being committed by a female. That decision prompted the applicant to seek leave to appeal her conviction out of time, on the basis that she had been convicted of an offence that could never lawfully have applied to her.
The applicant also sought bail pending the hearing of the appeal, conditional on the extension of time first being granted. The time for filing an appeal had long since expired, so both the extension and the bail application required the court's consideration.
Legal Issues
- Whether leave should be granted to extend the time for filing a notice of appeal against conviction, where the ground relied upon arose from a subsequent appellate decision (Lam v R)
- Whether the Court of Criminal Appeal had jurisdiction to hear the bail application before leave to extend time had been granted
- Whether "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW) existed to justify granting bail pending appeal
- Whether there was an unacceptable risk if the applicant were released on bail
Decision
Extension of time. The court granted leave to file the notice of appeal out of time. The sole ground of appeal was that a miscarriage of justice occurred because the applicant, a woman, was convicted of a charge founded on underlying offences for which she could never lawfully have been convicted. The Crown did not oppose the grant of leave, though it reserved the right to argue against a finding of miscarriage of justice at the final hearing. The court noted that any application to withdraw the guilty plea would involve the same miscarriage of justice test, and that consideration of a withdrawal application was still being explored by the applicant's counsel.
Jurisdiction for bail. The court confirmed that its jurisdiction to hear a bail application under s 61 of the Bail Act required that proceedings for the offence be pending in the court. Because the bail application had been filed before leave to extend time was granted, the court initially lacked jurisdiction. Once leave was granted, the court permitted the bail application to be renewed and considered it immediately.
Special or exceptional circumstances. Section 22 of the Bail Act requires an applicant appealing a conviction on indictment to establish special or exceptional circumstances before bail can be granted. The court found those circumstances were plainly established here. The Crown accepted that, in light of Lam, the applicant was more likely than not to succeed on appeal. A strong prospect of success of this kind, arising from a recent authoritative decision, readily satisfied the threshold of something out of the ordinary.
Unacceptable risk. The Crown did not press for any conditions beyond those imposed prior to conviction, and the court found no evidence pointing to any bail concerns at all. The offending had occurred between 1977 and 1979, and the sentencing judge's remarks confirmed the applicant had otherwise been an upstanding member of the community. There was no suggestion of any attempt to contact the victim or his family. The court found no unacceptable risk and imposed only minimal conditions.
Orders Made
- Leave granted to file the notice of appeal after the expiry of the filing period
- Hearing directed before the Registrar after 11 March 2024
- Leave granted for the bail application dated 28 February 2024 to be renewed, filed in court, and made returnable instanter
- Conditional bail granted on the following conditions:
- The applicant is to be of good behaviour
- The applicant is to appear in court when required to do so
Key Takeaways
- Following Lam v R [2024] NSWCCA 6, the Court of Criminal Appeal confirmed that s 81 of the Crimes Act 1900 (as it then was) was incapable of being committed by a female, with direct consequences for convictions founded on that provision.
- A conviction that rests on underlying offences which the convicted person could never lawfully have committed constitutes a potential miscarriage of justice sufficient to justify extending time to appeal, even after a guilty plea.
- Under s 22 of the Bail Act 2013, "special or exceptional circumstances" can be established where the Crown concedes the appeal is more likely than not to succeed, particularly where that concession flows from a recent authoritative appellate decision.
- Jurisdiction under s 61 of the Bail Act to consider a bail application in the Court of Criminal Appeal depends on proceedings being pending in the court; a bail application filed before leave to extend time is granted does not satisfy that requirement, but can be renewed once leave is granted.
- Where no bail concerns are identified and the only prior conditions were protective of the victim, the court may release an applicant on conditions of good behaviour and attendance only, without imposing more restrictive terms.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 18, 22, 59, 61
- Crimes Act 1900 (NSW), s 66EA; ss 79-81 (now repealed)
Cases:
- Lam v R [2024] NSWCCA 6
- Garcia-Godos v R; MH v R [2023] NSWCCA 145
- White v R [2022] NSWCCA 241
- Meissner v The Queen (1995) 184 CLR 132
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Smith [2023] NSWSC 36