Director of Public Prosecutions (NSW) v Duncan

[2022] NSWSC 927

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927

Hearing dates:

11 July 2022

Date of orders:

11 July 2022

Decision date:

11 July 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   The detention application is dismissed.

Catchwords:

CRIMINAL LAW – Bail – Where the respondent was convicted by a jury of sexual offending and released on bail pending sentence – Where an amendment to the Bail Act 2013 (NSW) was then introduced governing the release of offenders between conviction and sentence – Where the Director of Public Prosecutions made an application for the respondent’s detention following his release – Whether the amendment applied to the Director’s application – Whether the Director had established that the respondent will be sentenced to a period of full-time custody – Whether there were special or exceptional circumstances – Where senior counsel for the Director conceded that the circumstances pertaining to the respondent’s health were special or exceptional – Where it was accepted by senior counsel for the Director that in light of that concession the application should be dismissed – Detention application dismissed

STATUTORY INTERPRETATION – Whether an amendment to the Bail Act 2013 (NSW) was retrospective in its operation and thus contravened common law principles or statutory provisions – Necessity for a distinction to be drawn between amending legislation which has a prior effect on past events and amending legislation which bases future action on past events – Amendment in the present case not retrospective in its operation and not in breach of common law principles or statutory provisions

WORDS AND PHRASES – “will” – “special” – “exceptional” – “revive”

Legislation Cited:

Bail Act 1978 (NSW)

Bail Act 2013 (NSW)

Bail Regulation 2021 (NSW)

Crimes Act 1900 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938

Geschke v Del-Monte Home Furnishers Pty Limited [1981] VR 856

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

La Macchia v Minister for Primary Industry (1986) 72 ALR 23

Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7

Mine Subsidence Board v Wambo Coal Pty Limited (2007) 154 LGERA 60; [2007] NSWCA 137

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Tapueluelu (Supreme Court of NSW, 5 January 2004 unreported)

R v Tillman [2008] NSWSC 1227

R v Young [2006] NSWSC 1499

Re A Solicitor’s Clerk [1957] 1 WLR 1219

Robertsonv City of Nunawading [1973] VR 819

Texts Cited:

D C Pearce, Statutory Interpretation in Australia (LexisNexis Publishing, 9th Ed, 2019)

Macquarie Dictionary (2022)

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) – Applicant
Neil Duncan – Respondent

Representation:

Counsel:
D Morters SC – Crown
R Pontello SC and T O’Rourke

Solicitors:
Director of Public Prosecutions (NSW) – Crown
Aulich Criminal Law – Respondent

File Number(s):

2022/175913

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By an application dated 17 June 2022 the Director of Public Prosecutions (NSW) sought the detention of Neil Duncan (the respondent) pursuant to s 22B of the Bail Act 2013 (NSW) (the Act). The application was opposed.

2. I heard the application on 11 July 2022. At the conclusion of submissions, I dismissed the application and indicated that my reasons would be published in due course. Those reasons now follow.

THE FACTUAL BACKGROUND

3. The respondent was arrested on 6 November 2020 and charged with a number of offences of intentionally sexually touching a child between the ages of 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). He was granted conditional bail on the day of his arrest and released.

4. The respondent subsequently pleaded not guilty to an indictment alleging 14 counts of such offending, and stood trial before her Honour Judge Tupman and a jury in the District Court at Queanbeyan. On 2 June 2022, the jury delivered guilty verdicts in respect of 8 of those counts. Following those verdicts, the Crown made an application for the respondent’s detention. In the course of hearing that application, the following exchange took place between her Honour and the Crown Prosecutor: [1]

HER HONOUR: The only thing that's different is that he's now going to go to gaol probably for two of the complainants but not one of the others. Doesn't reach the threshold – the other two do.

CROWN: Yes, your Honour.

HER HONOUR: That's it and you can't have an ICO. So that's the only difference is that he’s facing a gaol term in relation to some of the counts in the indictment and he's not a flight risk.

1. T1.41 – T1.49.

5. In dismissing the application for the respondent’s detention, her Honour said the following:

I am not satisfied that bail should be refused in this case. Subject to argument, it seems highly likely, if not inevitable, that he faces a term of imprisonment. The verdicts of guilty in relation to OO, counts 5 to 8, particularly count 8, are such that it is likely in the circumstances that the threshold will be crossed. There is no alternative to full-time custody if that is the case. Without hearing any of the arguments however, I would have thought that the multiplicity of charges and now multiplicity of verdicts involving OO and SC, so those six counts at least, will mean a very high likelihood, if not inevitability, that there will be a term of imprisonment.

6. Having made reference to the potential risks associated with the respondent’s release, her Honour continued:

The pre-existing conditions appear to have protected the complainant's in this matter. There is no demonstrated risk to any other children. He has moved from the area to Tamworth. The existing conditions are relatively strict and apparently have been complied with.

In my view, the evidence to support the detention application is merely that he has now been convicted which is said to increase his flight risk, which as a matter of general logic and principle is correct, but in this case it is not a significant reality or at least not one that cannot be alleviated or obviated by the appropriate conditions.

The detention application is not granted.

7. The sentence proceedings are presently listed before her Honour on 5 August 2022, although in light of a number of matters which have since arisen and to which I have referred below, it is at least possible that they may not proceed on that day.

THE EVIDENCE

8. Senior counsel for the Director tendered a bundle of documents which included a copy of the Crown case statement setting out the respondent’s offending. In view of the issues which I am required to determine on this application, it is not necessary to make any detailed reference to the contents of that statement, other than to say that the offending is obviously serious, with each count attracting a maximum penalty of 10 years imprisonment.

9. At the time of bringing the present application, the Director also filed with the Court footage of the respondent conducting himself in a way which was said to constitute a breach of the conditions on which he was released by Judge Tupman. However, at the commencement of the hearing before me senior counsel for the Director made it clear that this issue had since been litigated before a Magistrate in the Local Court, who had found that no breach of bail had been established. Senior counsel also made it clear that he would not be submitting on this application that I should find, based on the footage, that the respondent had breached the conditions of his bail. In these circumstances, the footage was not tendered on the application and I have not had any regard to it.

10. The respondent relied on the following five affidavits, all of which were read without objection:

1. the respondent, affirmed on 7 July 2022;

2. Angela Lea Duncan, the respondent’s wife, affirmed on 6 July 2022;

3. Janet Dorothy Treadwell, the respondent’s mother-in-law, affirmed on 6 July 2022; and

4. Peter William Woodhouse, the respondent’s solicitor, sworn 6 July 2022 and 11 July 2022.

11. As the affidavit of Ms Treadwell went solely to the alleged breach of bail which senior counsel for the Director abandoned, I have not had regard to it. None of the deponents of the remaining affidavits were cross-examined. Accordingly, their evidence is entirely unchallenged. The following matters emerge from that evidence.

12. Prior to the commencement of his trial in May of this year, the respondent consulted his General Practitioner in Tamworth. As a consequence of the history which he provided, he was advised to have a blood test. [2] In circumstances where his trial was expected to be completed in 2 weeks, he deferred the test. As events transpired, the trial took far longer than had been anticipated, and the respondent was not able to have the test until 16 May, at which time he also had a Prostate Specific Antigen test. [3] The results of the latter test were indicative of prostate cancer, as a consequence of which the respondent was referred to a urological surgeon, Dr Smith.

    2. Respondent’s affidavit at [17].

    3. At [18].

13. Ultrasound investigations were carried out on 7 June and 20 June, and a biopsy was taken on 1 July. [4] On 5 July the respondent spoke with Dr Smith who confirmed a diagnosis of prostate cancer. After discussing the available treatment options, the respondent agreed to undergo surgery to remove his prostate gland. [5] At that point it was not clear when the surgery was likely to be scheduled. However, Annexure C to the affidavit of Mr Woodhouse of 11 July 2022 is a letter from Dr Smith of the same date which states the following:

[The respondent] has recently had a diagnosis of prostate cancer and is due to undergo surgery for this on the 20^th September. This procedure typically has an acute recovery time of 2 weeks and a full recovery time of 6 weeks.

4. At [19] – [21].

5. At [23].

14. When he spoke with Dr Smith on 5 July, the respondent provided a further history of additional symptoms he had been experiencing. Dr Smith advised him that those symptoms may be indicative of bowel cancer, and recommended that he undergo further tests. [6] In that regard the affidavit of Mr Woodhouse of 11 July 2022 [7] establishes that the Respondent now has the following further investigations scheduled:

1. a whole-body bone scan on 19 July 2022;

2. a CT scan of the abdomen and pelvis on 19 July 2022; and

3. a consultation with Dr Vivek Singh on 25 July 2022, with a view to undergoing a colonoscopy procedure at some time during the week following that consultation.

   6. At [23].

   7. At [4]-[6]; Annexures A and B.

15. As to what he views as the likely outcome of his sentence proceedings, the respondent said the following: [8]

[24] I am under no misapprehension that it is highly likely that I will be sentenced to a term of full-time imprisonment on 5 August 2022. I have been using the time since my matter was adjourned on 2 June to undergo whatever medical tests are recommended to ensure that my prostate problem is diagnosed properly before I am taken into custody and now intend to do the same in relation to the potential diagnosis of bowel cancer. I hope to obtain a treatment plan and evidence of any prognosis from Dr Smith (or other medical professional), once my investigative tests are complete. I understand this can be done before 5 August 2022.

[25] I am concerned that if I am taken into custody before my prostate and bowel problems are properly diagnosed, it will take much longer than for that to be done and any delay will adversely affect my health.

[26] Over the past three weeks I have noticed a significant change in my prostate area. I can feel that the prostate itself has become significantly larger. When I first noticed the problem it felt like a golf ball, now it feels like a fist. In the last week, I have experienced an increase in pain, generally, even whilst not moving or using the bathroom. At the moment I am able to manage the pain with Panadol.

8. At [24] – [26].

16. The respondent also stated [9] that apart from his health issues, he had a need to be at liberty to finalise arrangements in relation to the management of his affairs. That need stems primarily from the necessity to reduce the stock numbers on the rural property he operates with his wife, and to organise people to help his wife manage the property in his absence. The respondent stated [10] that since the verdicts of the jury were returned, he has been actively putting in place measures to address these issues. That evidence is generally corroborated by his wife in her affidavit. [11]

    9. At [27] and following.

    10. At [29].

    11. At [16] – [18].

THE RELEVANT LEGISLATION

17. On 27 June 2022, which was after the respondent was released on bail by Judge Tupman, s 22B of the Bail Act 2013 (NSW) (the Act) came into force. Before considering the terms of s 22B, there are some other provisions of the Act to which I should refer in light of the issues which have arisen.

18. To begin with, the purpose of the Act is set out in s 3 in the following terms:

3 Purpose of Act

(1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.

19. Section 7 defines “bail” as:

… authority to be at liberty for an offence.

20. Consistent with the object of the Act, s 49 confers, on a person accused of committing an offence, the right to apply to a Court or to an authorised justice for bail to be granted or dispensed with.

21. Section 22B, which is the focus of the present application, is in the following terms:

22B Limitation regarding bail during period following conviction and before sentencing for certain offences

(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court--

(a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b) on a detention application made in relation to the accused person--must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified.

(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.

(4) This section applies despite anything to the contrary in this Act.

(5) In this section--

"conviction" also includes a plea of guilty.

22. Section 98(1) of the Act is in the following terms:

98 Regulations

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

23. Clause 45 of the Bail Regulation 2021 (NSW) (the Regulation) contains a transitional provision and is in the following terms:

45 Transitional provision for Bail Amendment Act 2022—the Act, Schedule 3, cl 1

To avoid doubt, the amendments to the Act made by the Bail Amendment Act 2022 apply to any bail decision made after the commencement of that Act.

THE ISSUES

24. Accepting that the respondent has been convicted but not sentenced, and in light of the submissions made on his behalf, three issues arise for determination:

1. Given that s 22B came into force after the respondent was released on bail, does it apply to the present application?

2. If so, has it been established that the respondent will be sentenced to imprisonment to be served by full-time detention?

3. If so, are there special or exceptional circumstances which exist so as to justify a decision to dismiss the Director’s application?

The applicability of s 22B of the Act

25. Senior counsel for the respondent submitted that on its proper construction, s 22B of the Act contravened the common law presumption against retrospectivity. It was submitted that at common law, a statute changing the law should not, unless a contrary intention appeared with reasonable certainty, be understood as applying to facts or events that have already occurred, in such a way as to confer or impose, or otherwise affect, rights or liabilities which the law had defined by reference to past events. [12] Senior counsel submitted that it was impermissible to call in aid, in the construction of s 22B, the provisions of cl 45 of the Regulation. [13]

    12. Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at p 267 per Dixon CJ.

    13. Mine Subsidence Board v Wambo Coal Pty Limited (2007) 154 LGERA 60; [2007] NSWCA 137 at [41] per Tobias JA (Hodgson and Santow JJ agreeing).

26. It was submitted that the common law presumption against retrospectivity applied because (inter alia) s 22B substantially increased the respondent's liability to be imprisoned, by imposing upon him an obligation to demonstrate special or exceptional circumstances. It was submitted that there was a high degree of unfairness in retrospectively requiring the respondent to demonstrate such circumstances where it was not previously a requirement that he do so. Senior counsel further submitted that there was nothing in the terms of s 22B from which it could be concluded that the Parliament had intended it to have retrospective operation.

27. It was submitted that in all of these circumstances, s 22B should be taken to apply only to persons who were convicted on or after its commencement date, namely 27 June 2022. Senior counsel also referred, in passing, to the Interpretation Act 1987 (NSW) (the Interpretation Act) as providing statutory support for his position. He submitted, in particular, that “the prohibition against backdating legislation is effectively absolute” by virtue of s 39 of the Interpretation Act.

28. For the reasons that follow I am not persuaded that s 22B operates retrospectively, that it offends common law principles, or that it is contrary to the provisions of the Interpretation Act upon which senior counsel relied.

29. In determining issues of retrospectivity by reference to common law principles, it is important to draw a distinction between legislation which has a prior effect on past events (which is retrospective) and legislation which bases future action on past events (which is not). [14] In Robertsonv City of Nunawading [15] the Full Court of the Victorian Supreme Court put the matter in this way:

The principle [of retrospectivity] is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and does no more than that.

14. D C Pearce, Statutory Interpretation in Australia (LexisNexis Publishing, 9th Ed. 2019) at 10.4.

15. [1973] VR 819 at 824 (Robertson).

30. In Re A Solicitor’s Clerk [16] a legal clerk was convicted of charges of larceny. At the time of his conviction, no order could be made under legislation which would have prohibited him from being employed as a legal clerk, because the victim of his offending was not his employer or his employer's client. The legislation was subsequently amended to allow such an order to be made. The Court rejected an argument that to apply the amendment to prohibit the clerk from being employed would be to give it a retrospective operation. The Court concluded that the amendment had future operation only, even if the facts on which it depended had taken place in the past. The same approach was taken in La Macchia v Minister for Primary Industry,[17] as well as in Geschke v Del-Monte Home Furnishers Pty Limited. [18]

    16. [1957] 1 WLR 1219.

    17. (1986) 72 ALR 23.

    18. [1981] VR 856.

30. Viewed in this way, s 22B of the Act does not offend any common law presumption against retrospectivity. Adopting the phraseology in Robertson, s 22B takes into account antecedent facts, namely the fact that a person has been convicted but not sentenced, and uses that as a basis for what it prescribes is to occur in the future, namely that the person is not to be released if he or she will be sentenced to full-time imprisonment, and if there are no special or exceptional circumstances. This approach to the construction of s22B does not involve, in any way, utilising the cl 45 of the Regulation as an aid. The unequivocal terms of cl 45 simply confirm that s 22B applies whether or not an application is made before or after the date of its commencement.

31. Although not specifically cited by senior counsel for the respondent, I note that s 30(1) of the Interpretation Act is in the following terms:

30 Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not--

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

33. The only sub-paragraphs of s 30(1) which might possibly be relevant are sub-paragraphs (a) and (c). As to s 30(1)(a), the word “revive” necessarily connotes the restoration of something. Section 22B of the Act does not have the effect of restoring anything which was not in force or existing at the time that it became operative. As to s 30(1)(c), and given the purpose and scheme of the Act, the right or privilege that an offender acquires by operation of the Act is the right to apply to be released. That right is not affected by s 22B. Accordingly, neither s 30(1)(a) or (c) has any application.

34. Finally, s 39 of the Interpretation Act to which senior counsel for the respondent referred in passing is in the following terms:

39   The making of statutory rules

(1) A statutory rule--

(a) shall be published on the NSW legislation website, and

(b) commences on the day on which it is so published or, if a later day is specified in the rule for that purpose, on the later day so specified.

(2) Subsection (1) does not prevent a statutory rule from specifying different days for the commencement of different portions of the rule.

(2A) Neither the whole nor any part of a statutory rule is invalid merely because (without statutory authority) the statutory rule is published on the NSW legislation website after the day on which one or more of its provisions is or are expressed to commence. In that case, that or those provisions commence on the day the statutory rule is published on the NSW legislation website, instead of on the earlier day.

(3) If an Act provides for the making of a statutory rule by a person or body other than the Governor, but the rule is required by law to be approved or confirmed by the Governor, subsections (1) and (2A) do not apply to the rule unless it has been approved or confirmed as so required.

(4) The Governor may, by order published on the NSW legislation website, exclude any specified class of statutory rules from the application of this section, but may do so only--

(a) in respect of statutory rules made under Acts passed before the commencement of this Act, and

(b) if, immediately before the commencement of this Act, section 41 of the Interpretation Act 1897 did not apply to statutory rules of that class.

(5) This section does not apply to the Standing Rules and Orders of the Legislative Council and Legislative Assembly.

35. For the reasons I have expressed, s 22B is not “backdated legislation”. Section 39 has no application.

36. I am satisfied that s 22B applies to the present application notwithstanding that it became operative after the respondent’s release.

Will the respondent be sentenced to full-time imprisonment?

37. The respondent unequivocally accepts that a sentence of full-time custody is highly likely. That position has no doubt been taken, at least in part, in light of statements made by the trial judge in the course of the hearing of the previous detention application. [19] Notwithstanding that, senior counsel for the respondent submitted that the use of the word “will” in s 22B(1) rendered it necessary that I reach a state of certainty, or in other words that I be positively satisfied, that a term of full-time imprisonment will be imposed on the respondent. Senior counsel submitted that, given that the sentencing process is not one that leads to a single correct outcome and is not a mathematical exercise, [20] I could not be positively satisfied that the only available sentence was one of full-time imprisonment, and that any other sentence was outside the range of possible outcomes. Whilst accepting that it was undoubtedly “on the cards” that the respondent would be sentenced to full-time imprisonment, it was submitted that this was not certain. In support of that proposition, counsel advanced a number of submissions primarily in relation to the recent developments in the respondent’s health.

    19. Set out above at [4].

    20. See for example Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at p 46; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [74].

38. In considering these submissions, s 32 of the Act is relevant:

32 Matters to be decided on balance of probabilities

(1) Any matter that must be decided by a bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities.

(2) This section does not apply to proceedings for an offence in relation to bail.

39. In Director of Public Prosecutions (NSW) v Day [21] Garling J reached the conclusion, with which I respectfully agree, that in an application for the detention of an offender to which s 22B applies, the Director must satisfy the Court, on the balance of probabilities, that no sentencing alternative other than full time imprisonment could lawfully be imposed. In reaching that determination, his Honour concluded [22] that the word “will” as it appears in s 22B(1) connotes a degree of certainty or confidence that full-time imprisonment will be the outcome of the sentencing hearing. His Honour went on to observe: [23]

Where, as is the case here, the DPP essays that task by relying solely on the inferences and conclusions to be drawn from convictions for the offences charged, and nothing else by way of Agreed Facts, evidence or matters addressing the presence or absence of any subjective circumstances, it will be very difficult to persuade a court that the possibility of any other lawfully available sentencing alternatives has been excluded.

21. [2022] NSWSC 938 at [61].

22. At [60].

23. At [62].

40. His Honour ultimately concluded that he could not be satisfied that there was no sentencing alternative available to the sentencing judge in that case, other than full-time imprisonment. In reaching that conclusion, his Honour made particular reference [24] to the fact that the sentencing judge had expressed the view, in refusing an earlier detention application, that whilst a full-time custodial sentence was highly likely, he could not be satisfied that it was certain. The observations of Judge Tupman in the present case, which the respondent appears to accept, are to the opposite effect. They were also made in circumstances where the offending of which the respondent has been convicted is of an entirely different nature to that of which the respondent in Day has been convicted.

    24. At [66].

41. I have had regard to the objective circumstances of the offending set out in the Crown case statement, the applicable maximum penalty, the observations of the sentencing judge when releasing the respondent, and the respondent’s candid acceptance, as things presently stand, of the likely outcome of the sentence proceedings. Those matters satisfy me, on the balance of probabilities, that the respondent will be sentenced to imprisonment to be served by full-time detention.

42. However, I should say that the fact that the Court is required, on an application such as this, to make a determination as to the outcome of a sentencing hearing highlights a practical difficulty, and indeed a degree of artificiality, in the operation of s 22B. This is simply due to the fact that in many cases (this case being an example) a Judge or Magistrate called upon to make a determination of the outcome of sentence proceedings for the purposes of s 22B will not be the sentencing Judge or Magistrate, and will therefore not have the benefit of the entirety, or perhaps any, of the evidence upon which an offender may wish to rely in mitigation.

43. In the context of the present case, given the respondent’s forthcoming investigative procedures, and his proposed surgery, it is not difficult to envisage that an application may be made on 5 August next for an adjournment of the sentence proceedings, to give him the opportunity of putting before the sentencing judge evidence as to the results of those procedures, the success or otherwise of his surgery, and his general prognosis. Senior counsel for the respondent specifically alluded to the likelihood of such an application being brought. What might ultimately be made of any such evidence will obviously be a matter for the sentencing Judge. The determination that I have made for the purposes of s 22B as to the outcome of the sentence proceedings could obviously not bind her Honour. Moreover, it has obviously been made on the basis of evidence which is substantially less detailed than that upon which the respondent will no doubt rely on his sentence hearing.

Are there special or exceptional circumstances?

44. The terms “special" and “exceptional” are not defined in the Act. The definition of the word “special” in the Macquarie Dictionary 2022 includes the following:

Distinguished or different from what is ordinary or usual; extraordinary; exceptional.

45. The definition of the word “exceptional” includes the following:

Forming an exception or unusual instance, unusual, extraordinary

46. It will be apparent from these definitions that there is a considerable degree of overlap between the two terms.

47. Section 9C of the Bail Act 1978 (NSW) provided that in certain circumstances (such as where the accused had been charged with an offence of murder) bail was not to be granted unless the Court was satisfied that exceptional circumstances were established. In R v Tapueluelu [25] Dowd J expressed the view this required establishing something more than “special circumstances” or “mere circumstances”. That does not sit entirely comfortably with the Dictionary definitions of “special” and “exceptional”.

    25. Supreme Court of NSW), 5 January 2004 (unreported).

48. In R v Young [26] Johnson J adopted, for the purposes of s 9C, the definition of “exceptional” set out above. In a subsequent decision of R v Tillman [27] his Honour took the view that whether exceptional circumstances were made out for the purposes of s 9C involved a case by case determination. In my view, given that the facts of cases obviously differ, that approach should be adopted for the purposes of considering whether circumstances are “special or exceptional” for the purposes of s 22B.

    26. [2006] NSWSC 1499 at [18].

    27. [2008] NSWSC 1227 at [13].

49. In the present case, the respondent relied primarily on the evidence surrounding his health as constituting special or exceptional circumstances. Some reliance was also placed on the need to arrange his personal affairs. In the course of submissions in relation to this issue, I had the following exchange with senior counsel for the Director: [28]

    28. T7.17 – T8.35.

HIS HONOUR: … The third issue is special and/or exceptional circumstances. What do you say about the affidavit evidence that the respondent relies upon?

CROWN: I don't concede that they are made out but I certainly recognise that, and mostly focusing on the medical evidence – –

HIS HONOUR: Yes.

CROWN: I am familiar with the various means by which the Courts have come to conclusions where there's mixed circumstances which are relied upon. I don't want to get too involved in that, I think the better focus is on the medical evidence that’s been provided in relation to the respondent in this matter.

HIS HONOUR: I think the judicial interpretation of terms such as special or exceptional is a fairly well worn track, particularly in applications of this nature for the simple reason that many years ago that was at least part of the test which was enshrined in the legislation that has now changed, so accepting that to be the case, it seems to me that the evidence, given that it's not challenged, establishes that the respondent has a diagnosis of prostate cancer.

CROWN: Yes.

HIS HONOUR: There’s a suggestion that there may be some other diagnosis.

CROWN: Bowel cancer.

HIS HONOUR: Bowel cancer at some time in the future, that's yet to be determined, no formal diagnosis had been made. The respondent is scheduled for a test I think as early as tomorrow in relation to that issue.

CROWN: Colonoscopy on 19 July.

…

HIS HONOUR: I'm sorry, Mr Crown, what do you say about that evidence?

CROWN: It's fairly compelling. I would have thought, without conceding the matter, that he is in a fairly unique position in relation to someone who is soon to be sentenced for some fairly serious offending.

HIS HONOUR: What does that mean? Does that mean you accept that it is special or exceptional?

CROWN: Yes.

HIS HONOUR: If I get to that point, on your concession, the third issue would be resolved in the respondent's favour and your detention application would be dismissed.

CROWN: Yes.

HIS HONOUR: Do you wish to say any further?

CROWN: No. (Emphasis added in each case.

50. Although senior counsel for the Director purported to eschew a concession that special or exceptional circumstances had been made out on the basis of the respondent’s health issues, he ultimately made such a concession, without equivocation, in the passages of the above exchange which are underlined and italicised. That concession having been made, senior counsel expressly accepted that it would follow that the detention application would be dismissed. In these circumstances, I am not required to consider whether the respondent’s asserted need to be at liberty for the purposes of arranging his affairs amounts to special or exceptional circumstances for the purposes of s 22B.

ORDER

51. It was for these reasons that I made the following order:

1. The detention application is dismissed.

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Endnotes

Amendments

20 July 2022 - Paragraph [23] now reads "transitional".

03 April 2025 - Publication restricted lifted.

Decision last updated: 03 April 2025