Director of Public Prosecutions (Cth) v Cassaniti

[2006] NSWSC 1103

CITATION:	DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v CASSANITI [2006] NSWSC 1103
HEARING DATE(S):	19 October 2006
JUDGMENT DATE :	19 October 2006
JUDGMENT OF:	Basten JA at 1
DECISION:	Revoke the order of Hidden J made 22 September 2006 granting bail.
CATCHWORDS:	BAIL REVIEW – whether review was by way of hearing de novo – whether error must be demonstrated in the exercise of a discretionary power to grant bail – whether deterioration of mental health and involvement in complex civil litigation constitute "special or exceptional circusmstances" under s 30AA of the Bail Act 1978
LEGISLATION CITED:	Bail Act 1978 (NSW), ss 4, 8A, 30AA, 45, 48 Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Criminal Appeal Act 1912 (NSW), ss 5F, 10 Criminal Appeal Rules, r 23C Supreme Court Act 1970 (NSW), s 51
CASES CITED:	Budiman (1997) 97 A Crim R 548 Cacciola (1998) 104 A Crim R 178 Chamberlain v The Queen (No. 1) (1983) 153 CLR 514 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commonwealth DPP v Germakian [2006] NSWCA 275 Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335. Ettridge v DPP (Qld) [2003] QCA 410 Hamill (1986) 25 A Crim R 316 Hanson v DPP (Qld) [2003] QCA 409 Marotta v The Queen (1998) 73 ALJR 265 Pakis (1981) 3 A Crim R 132 The Queen v Giordano (1982) 31 SASR 241 Re Coldham; Ex parte Brideson [No. 2] (1990) 170 CLR 267 R v Antoun [2005] NSWCCA 270 Regina v Bayeh (unrep, Court of Appeal, 7 August 1997) R v Hilton (1987) 7 NSWLR 745 R v Kissner (Unreported, 17 January 1992) Regina v Nanai [2000] NSWCCA 204 R v Southgate (1960) 78 WN (NSW) 44 R v Wilson (1994) 34 NSWLR 1 Roberts and Lardner (1997) 97 A Crim R 456 Sinanovic v R (No. 1) (2001) 179 ALR 520 Tieleman v The Queen (2004) 149 A Crim R 303; [2004] WASCA 285 United Mexican States v Cabal (2002) 209 CLR 165 Velevski (2000) 117 A Crim R 30
PARTIES:	Director of Public Prosecutions (Cth) - Appellant Salvatore Peter Cassaniti - Respondent
FILE NUMBER(S):	SC 1682/2006
COUNSEL:	Mr P. Roberts SC - Appellant Mr P. Byrne SC/Mr S. Buchen - Respondent
SOLICITORS:	Commonwealth Director of Public Prosecutions - Appellant Kiki Kyriacou Lawyers, Kings Cross - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	1682/2006
LOWER COURT JUDICIAL OFFICER :	Hidden J
LOWER COURT DATE OF DECISION:	22 September 2006

SC 1682/2006

BASTEN JA

19 October 2006

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v Salvatore Peter CASSANITI

Judgment

1 BASTEN JA: With the agreement of the parties, an application for review of a bail decision made by Hidden J in this Court on 22 September 2006, has been referred to me by the Court of Criminal Appeal, on the understanding that that Court had no jurisdiction to deal with the application: see Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335. For the reasons given by that Court, which I adopt, I am satisfied that I have power to review his Honour’s decision, pursuant to s 45 of the Bail Act.

2 It is arguable, for reasons noted in the judgment of the Court of Criminal Appeal, that, as the Director contended, Hidden J had no power to grant bail on 22 September 2006. On the other hand, it is arguable that the Respondent was a person accused of an offence, within s 4(2)(a) of the Bail Act 1978 (NSW), despite the fact that he had not only been convicted but had been sentenced for the relevant offences. Further, it is arguable that, he having validly given a notice of intention to appeal, albeit the effect of the notice had expired, unless the period was extended, he was, pursuant to s 10(2)(b) of the Criminal Appeal Act 1912 (NSW), a person in respect of whom an appeal was pending, in accordance with s 4(2)(c) of the Bail Act. In addition, it is arguable that the order made by the Court of Criminal Appeal extending the period within which that notice was effective until the day on which the notice of appeal was given, and waiving the need for compliance with other provisions of the Criminal Appeal Rules in relation to the service of documents required by rule 23C to accompany the notice of appeal, has retrospectively removed any lack of jurisdiction which may have arisen at the time that bail was granted.

3 Without resolving these issues I will assume, in favour of the Respondent, that he has been granted bail and is validly at liberty pursuant to that grant.

Nature of review

4 The nature of the jurisdiction being exercised by this Court is provided for by s 48(3) of the Bail Act:

48 Provisions respecting review of bail decisions
…
(3) The review of a decision shall be by way of rehearing, and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review.

5 The different kinds of appeal and review have been the subject of considerable discussion in the case-law over many years: the relevant categories and distinctions are helpfully summarised in the joint judgment of Gleeson CJ, Gaudron and Hayne JJ in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [11]-[15]. Reference to an appeal or review “by way of rehearing” can encompass two distinct procedures, as their Honours noted at [14], in the following terms (footnotes omitted):

“Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.”

6 It is trite to say that the nature of an appeal “must ultimately depend on the terms of the statute conferring the right”: Re Coldham; Ex parte Brideson [No. 2] (1990) 170 CLR 267 at 273-4 (Deane, Gaudron and McHugh JJ). In relation to s 48(3), it has been held that the right of review conferred under ss 44-46 is a review by way of hearing de novo. No error need be identified in the decision under review: see Pakis (1981) 3 A Crim R 132 at 136-137 (O’Brien CJ of Cr D). That case involved the review by a judge of the Supreme Court of a decision by a magistrate. In such a case, the conclusion was readily understandable, even though, under s 38, any decision in relation to bail is required to be accompanied by reasons which might be seen to demonstrate error if such were present. In Hamill (1986) 25 A Crim R 316, Reynolds J considered the power of a single judge to review a bail determination made by another judge of the Court. His Honour noted a submission that he should not undertake that exercise (p 319):

“The effect of his submission was that this application was an attempt to relitigate what had very recently been fully litigated by each of the parties and properly decided by Enderby J and that therefore such a request for review must fall within the category of being either frivolous or vexatious or both.”

If such a conclusion had been reached, the Court would be entitled to refuse to entertain the review, pursuant to s 48(7). His Honour rejected the view that any such implication could be derived from s 48 and noted that he was required to review the decision by way of re-hearing, as set out in s 48(3) and in the manner explained in Pakis : 25 A Crim R at 321.

7 In these days, when statutory rights of appeal, even in relation to interlocutory matters and in the criminal jurisdiction, are commonplace, there is something unattractive about the conferral on each judge of a court of the power to revoke or disregard a recent decision of another member of the court, on identical material. The exercise of such a power can do little to enhance public confidence in the operation of the rule of law, where two judges at the same level in the judicial hierarchy may reach directly inconsistent decisions, the later one being given effect, until overridden by a third decision.

8 Because, through a policy which is obscure, the Court of Criminal Appeal has no power to review a decision of a single judge in the Common Law Division with respect to bail, there is no binding authority in that Court addressing the decisions to which I have referred: despite the introduction of a right of interlocutory appeal in relation to criminal proceedings, to be heard by the Court of Criminal Appeal, that power has been held not to extend to bail determinations: Criminal Appeal Act, s 5F and Regina v Nanai [2000] NSWCCA 204.

9 The inappropriateness of one judge reviewing the decision of another judge is ameliorated in practice, as noted by Mason P in Roberts and Lardner (1997) 97 A Crim R 456 at 457 (Powell and Beazley JJA agreeing):

“Since 1979 it has been the practice of the Supreme Court that where an applicant for bail is already the subject of a refusal of bail by a judge either of the District Court or the Supreme Court during a trial or pending sentence, then in that situation the single judge of the Supreme Court before whom the application comes will, as a matter of practice but not jurisdiction, decline to exercise the jurisdiction. If, however, there are circumstances shown which may be thought to justify a reconsideration of bail, the practice is for the application to the Supreme Court to be removed into the Court of Appeal … .”

As this case illustrates, the practice is not universally adopted and may cause delay and inconvenience. (I was not asked to refer this application to the Court of Appeal.)

10 Further, the President noted that “that jurisdiction is an original jurisdiction not dependent upon demonstrating error on the part of the trial judge”: p 459. His Honour continued:

“However, it is obviously a matter in which an appellate court should exercise restraint having regard to the fact that a trial judge will be in a much better position than the appellate court to weigh up the various factors supporting or negating an application for bail.”

11 In Budiman (1997) 97 A Crim R 548 at 549, the President (Powell and Sheller JJA agreeing) reiterated the principles he had stated in Roberts and Lardner. However, he did address the question of whether error had been demonstrated on the part of the primary judge, holding that it had: at pp 550-551. The demonstration of error no doubt removed the principle of restraint which might otherwise have mitigated against intervention on review.

12 Most recently, a similar jurisdiction was exercised by the Court of Appeal in Commonwealth DPP v Germakian [2006] NSWCA 275. The proceedings had been commenced in the Common Law Division, but were removed to the Court of Appeal by Latham J, pursuant to s 51(5) of the Supreme Court Act 1970 (NSW): see Germakian at [6].

13 In Germakian, there is no reference to s 48(3) of the Bail Act nor in the judgment of Tobias JA (with whom Ipp JA agreed) is there any discussion of the nature of the power being exercised by the Court of Appeal. There are statements at [33] and [39] which suggest that the majority found that the exercise of discretion by the trial judge miscarried. Further, at [34] his Honour noted the request of the respondent that certain factors be taken into account “should this Court be of the view that her Honour’s discretion miscarried so that this Court should exercise the discretion to grant bail afresh”. One should infer that the majority approached the matter on the basis of the approach adopted by the parties, namely that it was appropriate for the Court to consider whether there was error, on the basis of which the Court of Appeal might intervene.

14 In a concurring judgment, I specifically addressed the nature of the power being invoked at [47], though without reference to s 48(3). I took the view that the Director “must demonstrate error in the exercise of a discretionary power on the part of the trial judge”.

15 That reasoning was not part of the reasoning of the majority and is therefore not binding on this Court. As I now realise, it was inconsistent with statements of the Court of Appeal in Roberts and Lardner and Budiman, noted above, subject to a qualification of some imprecision that “an appellate court should exercise restraint”. Nor is it clear whether, this matter not having been referred to the Court of Appeal, the concept of appellate constraint applies to a single judge sitting in review of the judgment of another single judge. Principles of “comity” might have a similar operation, but neither party invoked such principles in the present case. Despite the fact that, as a matter of policy, the approach adopted by me in Germakian may have something to recommend it, I do not think it is a correct reflection of the law. I therefore propose to apply the principles in Budiman and Roberts and Lardner. I do so, accepting the need for “restraint”, at least in a case where such restraint favours the liberty of the individual.

Application of relevant principles

16 The cases referred to in Germakian, and the approach adopted in that case, suggest that “special or exceptional circumstances” will not readily be identified for the purpose of granting bail pending an appeal, even in circumstances where the presumption against bail contained in s 8A of the Bail Act does not apply. However, it may be significant that the emphasis on the strength of the prosecution case (or, in the circumstances of an appeal, the likelihood of success on the appeal) involves a consideration which has been developed as a “prime consideration” in relation to charges to which s 8A applies: see extract from Hunt CJ at CL in R v Kissner (unreported, 17 January 1992), set out in Germakian at [9]. Further, counsel for the Respondent to the present application drew my attention to passages in a number of recent decisions, both in this Court and in the High Court, which, he contended, demonstrate a shift in attitude towards grants of bail pending appeal. It is necessary, accordingly, to review briefly the relevant principles.

17 The application for review is an application to reconsider the decision on its merits. The principles to be applied are set out in s 30AA, which reads as follows:

30AA Limitation on power to grant bail
Notwithstanding anything in this Act, if:
(a) an appeal is pending in the Court of Criminal Appeal against:
(i) a conviction on indictment, or
(ii) a sentence passed on conviction on indictment, or
(b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a),
bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail.

18 As may be seen, bail is not to be granted absent special or exceptional circumstances. A noted above, the operation of that section has been considered in a number of authorities including, most recently, the decision of the Court of Appeal in Germakian. That was a case in which the applicant had been convicted but not sentenced, but faced a custodial sentence, which appeared to be almost inevitable. Although s 30AA was not directly engaged, the importance of applying the principles underlying that provision was recognised, reference being made to the decision of the Court of Appeal in R v Wilson (1994) 34 NSWLR 1 at 4E and 6D (Kirby P, Sheller JA agreeing) and at 7 (Hunt CJ at CL, referring to R v Southgate (1960) 78 WN (NSW) 44, Chamberlain v The Queen (No. 1) (1983) 153 CLR 514 at 519-520 (Brennan J) and R v Hilton (1987) 7 NSWLR 745 at 746-7 and 752); see also Velevski (2000) 117 A Crim R 30.

19 As appears from these authorities, the high likelihood that the applicant will answer bail has regularly been assumed, perhaps as a necessary precondition to bail, but found not to be sufficient to constitute special or exceptional circumstances. The principle identified by Brennan J in Chamberlain (No. 1) as underlying the test was expressed as follows at p 519:

“To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately. … The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.”

20 Counsel for the Respondent pressed upon the Court that the reasonable likelihood of success on appeal was by no means the sole relevant criterion, nor was it necessary to establish that an appeal is virtually certain to succeed. He argued that each of these propositions was rejected in R v Antoun [2005] NSWCCA 270 at [14] and [15].

21 So much may be accepted, but the heavy burden faced by an applicant in these circumstances is not diminished when no attempt is made to demonstrate that the grounds of appeal establish more than an arguable point: see R v Wilson, 34 NSWLR 1 at 5B and Ettridge v DPP (Qld) [2003] QCA 410 quoted at [27] below.

22 Counsel for the Appellant drew the Court’s attention to comments of Callinan J in Marotta v The Queen (1998) 73 ALJR 265, particularly at [10], where his Honour cast some doubt on the views of Brennan J in Chamberlain (No. 1) as to whether a grant of bail does treat a verdict of guilt as “provisional”. His Honour stated:

“The verdict stands unless until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail.”

23 Marotta was also relied upon for the apparently expansive list of some 13 factors which might be taken into account and were taken into account in that case, in determining that bail should be granted. It was then put that the application of the exceptional circumstances test, addressed as part of the common law in Marotta, has been accepted by the Court of Criminal Appeal in this State in Velevski (2000) 117 A Crim R 30. However, with respect I see nothing in the judgment in Velevski to support that proposition. At [23] Barr J (with whom Spigelman CJ and Hulme J agreed) turned to Marotta as containing “a useful collection of factors or components which in any particular case may well be brought to bear in answering the ultimate question whether, in the instant case, there exist the necessary special or exceptional circumstances warranting a grant of bail”. Furthermore, Hulme J expressly disassociated himself from certain views of Callinan J stated to be in Marotta at [9] but possibly at [10]. His Honour stated at [39] in Velevski:

“It seems to me what his Honour said there is contrary to the general tenor of much of what has been said in the authorities as to the reasons why care should be exercised in considering, and courts are reluctant to grant, applications for bail pending appeal.”

24 The Appellant said the approach of Callinan J in Marotta obtained support from Kirby J in Sinanovic v R(No. 1) (2001) 179 ALR 520, a decision handed down by his Honour on 8 June 2001. The references relied on were contained in paragraph [11] setting out applicable principles and particularly, at sub-paragraph 6.

25 All of this has, however, been overtaken by the joint judgment of Gleeson CJ, McHugh and Gummow JJ in United Mexican States v Cabal (2002) 209 CLR 165 a decision delivered on 24 October 2001. Their Honours stated at [39]:

“[39] In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher [1986] 1 Qd R 303 at 310, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:

· makes the conviction appear contingent until confirmed;

· places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;

· encourages unmeritorious appeals;

· undermines respect for the judicial system in having a ‘recently sentenced man walking free’;

· undermines the public interest in having convicted persons serve their sentences as soon as is practicable.

[40] Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances.”

26 Although in support of the last proposition, the joint judgment referred to Marotta, it is recognised that there is some level of disparity between some comments in Marotta and the reasoning in Ex parte Maher, affirmed in Cabal. For example, in Hanson v DPP (Qld) [2003] QCA 409, the Queensland Court of Appeal stated at [9]:

“Some of the views expressed by Justice Callinan, while undoubtedly achieving justice in that case, appear at odds with the statements already quoted from United Mexican States v Cabal , made some two years later in the joint judgment. Likewise, remarks [of] Callinan J in the case of Doggett v R [2001] HCA 46 … 9 August 2001 are also inconsistent with what was said in Cabal .”

27 To similar effect, in Ettridge v DPP (Qld) [2003] QCA 410 the same Court at [4] treated Cabal as inconsistent with remarks by Callinan J in Marotta concerning the finality of the jury verdict. Their Honours continued at [5]:

“In Cabal that joint judgment confirmed that in a criminal case an order granting bail pending appeal will be made if there are exceptional circumstances, and further that ordinarily that bail would be granted in such cases only if two conditions are satisfied. One is that the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed; and the second that the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is decided.”

28 The approach adopted in Cabal has also been applied by the Court of Appeal in Western Australia in Tieleman v The Queen (2004) 149 A Crim R 303; [2004] WASCA 285 (Murray, Steytler and Templeman JJ) at [18]-[29] (Murray J, Templeman J agreeing).

29 Although the principles in the High Court involve no statutory test, but rather an application of the general law, that gives rise to no point of distinction. As noted by the Court of Criminal Appeal in Velevski, the insertion of s 30AA was intended to restore the common law principles: at [15].

30 Having regard to the affirmation in Cabal of the principles set out by Thomas J in Ex parte Maher and frequently affirmed in this jurisdiction, I am not persuaded that there has been any diminution of the burden placed on an applicant for bail pending appeal to establish circumstances which are truly special or exceptional.

Application of principles

31 The particular difficulty which the Appellant faced was that the grounds of appeal were limited to three matters, which directly affected only a handful of convictions. The remainder were only indirectly affected on the basis of a broad fear of contamination. Where numerous offences are left to a jury, and no objection is raised on that basis to the convictions which result, the Court must be entitled to presume that jurors have distinguished material going to one count from material going to another. The contamination complaint can hardly be viewed as stronger than an “arguable” ground of appeal. Yet if it fails, the sentence period is unlikely to be significantly affected, even if the six specific convictions to which the grounds relate were overturned.

32 Other factors may undoubtedly result in special or exceptional circumstances. For example, in the case of Mr Antoun, his eligibility for parole was likely to coincide with, or arise within two months of, the likely date of hearing of his appeal by the High Court. Given the likely delay awaiting judgment, his appeal even if successful would not then have relieved him of any part of his compulsory custodial penalty. In addition, he had been granted bail pending his appeal to the Court of Criminal Appeal.

33 No assessment of the strength of the appeal is relied upon in this case. Hidden J, in his judgment of 22 September 2006, stated in respect of the strength of the appeal (at p 1):

“I had the benefit of written submissions prepared for the purpose of the appeal which show that there is an arguable appeal but not one which could be said to be assured of success. However, that is not necessarily determinative of the present application. … The likely success of the appeal is a crucial matter when that is the only or primary basis upon which bail is sought, but there may be other circumstances which warrant the grant of bail even though the appeal cannot be said to be assured of success.”

34 A court dealing with a bail application will always be reluctant to undertake any significant level of assessment of the likely success of the appeal: see The Queen v Giordano (1982) 31 SASR 241 at 243 (King CJ, Zelling and Matheson JJ agreeing). To do so would be to undermine the principle that the verdict is final until set aside. Nevertheless, the fact that an appeal cannot be shown to be more than merely “arguable”, and perhaps less in relation to the indirectly affected convictions, diminishes the strength of the present application.

35 The case presented to the primary judge relied upon two matters, namely the Appellant’s mental health and the fact that he was involved in “a complex of civil litigation”. Hidden J had material from a psychologist, Mr Watson-Munro, who stated that there had been a marked deterioration in the Appellant’s mental health since his incarceration. Hidden J continued (at p 2):

“Significantly, Mr Watson-Munro gave evidence that if the applicant were released, even for a matter of months, but then had to return to prison, the appeal not having been successful, that period at liberty with appropriate treatment would still be of real benefit to his mental health in the future.”

36 On this application, counsel for the Appellant submitted that the two factors were not independent, the deterioration in the Appellant’s mental health being closely related to his civil litigation and the extreme difficulty of conducting that litigation from a prison cell. He also tendered a further report from Mr Watson-Munro which confirmed that the Appellant’s condition had improved since he was released on bail.

37 In a general sense it may be accepted that the Appellant’s circumstances are unusual. No doubt few persons sentenced to imprisonment are involved in complex litigation. On the other hand, it must be assumed that for many, if not most, prisoners, their personal and work lives will be seriously disrupted on incarceration. A person who runs (or has run) a business may suffer greater disruption than a casual labourer. However, that factor cannot place the former in the category of special or unusual circumstances.

38 Similarly, a significant number of prisoners may suffer a deterioration in health, upon incarceration. Again, that cannot, in general, be sufficient to constitute a special or exceptional circumstance, and it is difficult to think that the reason for the deterioration, even if itself unusual or even unique, will give it that quality.

39 The term “special circumstances”, being part of the test in s 30AA, may be found in numerous statutory contexts. Relevantly to the exercise of criminal jurisdiction, it is to be found in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as a basis for engaging the power to vary the usual proportion of a non-parole period to the balance of the sentence. In similar vein, counsel for the Appellant referred the Court to the decision of the Court of Criminal Appeal in Cacciola (1998) 104 A Crim R 178, and particularly the judgment of Priestley JA, discussing the concept of “exceptional circumstances” as a basis for avoiding a custodial sentence in relation to an offence of trafficking in illicit drugs. In a sense, the case gave him little assistance, as the Court dismissed the suggestion that highly favourable subjective circumstances, including anxiety, depression and a feeling of hopelessness, accompanied by disruption of his whole way of life, constituted exceptional circumstances for the purposes of avoiding a custodial sentence. But in any event, the purpose for which the test was being applied was as a fetter on the discretion to impose a non-custodial sentence, a matter involving quite distinct considerations from a grant of bail. What must be borne steadfastly in mind is that in each context the quality of the circumstances must be judged against the purpose for which they are relevant. In the present case, as is explained in the authorities referred to above, the grant of bail following conviction and sentence, but pending appeal, is a highly specific context, in which satisfaction of the test imposes a heavy burden on an applicant.

40 The circumstances of the present application bears some similarity to that in Regina v Bayeh (unrep, Court of Appeal, 7 August 1997). As noted by the President (with whom Powell and Stein JJA agreed):

“The grounds that were particularly relied upon in the application before the Court today related to the medical condition of the applicant; the desirability of the applicant having unhindered access to his counsel for the preparation of the appeal (and I suspect also the preparation of the pending further trial) … . As to the medical situation there was placed before the Court a volume of medical evidence referring to a high anxiety state on the part of the applicant for which a consultant psychiatrist, Dr Canaris, expresses a detailed opinion … . In this report he records concern about the psychiatric state of the applicant and the level of psychiatric and medical care which he is receiving or likely to receive within the prison system.”

The medical issues were then addressed in some detail.

41 In relation to the second matter, the applicant was facing not only the preparation of an appeal, but also a further criminal trial, a matter which might demonstrate a greater need than civil litigation. However, none of these circumstances, nor certain confidential material, which was not identified, persuaded the Court that the test in s 30AA was satisfied. (In that case bail was sought prior to sentence, but nothing turned on that fact.) The Appellant sought to distinguish the case by reference to the nature of the criminality involved (perverting the course of justice). Whilst some weight should be given to that fact, the principles applied by the President give helpful guidance.

42 In the present circumstances, as it cannot be said that a strong challenge has been mounted to the verdict or the sentences imposed at trial, the Appellant’s case must be assessed by reference to a likelihood that he will be required to serve the remainder of his sentences. Even assuming that the Court of Criminal Appeal reserves its decision for two months from 7 December 2006, he would be at liberty for some four-five months only. That would include the summer holiday period. The likelihood of great progress being made with complex civil litigation in such a short period seems remote. The benefits of a temporary absence from incarceration, in the long term, seem somewhat speculative. The common and foreseeable consequences of incarceration in a case such as this must be recognised.

43 I conclude that the test set out in s 30AA of the Bail Act has not been satisfied and bail should be revoked. The Court makes that order.

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