Director of Public Prosecutions v SKA - [2009] NSWCA 51

NEW SOUTH WALES COURT OF APPEAL

CITATION:
DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/40068

HEARING DATE(S):
13 March 2009

JUDGMENT DATE:
13 March 2009

PARTIES:
Director of Public Prosecutions
SKA

JUDGMENT OF:
McClellan CJ at CL Buddin J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0763

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
6/2/2009

COUNSEL:
M Grogan (Crown)
M Gallagher (Respondent)

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
Crawford & Duncan Lawyers (Respondent)

CATCHWORDS:
Bail - review by Crown of grant of bail in District Court - whether "special or exceptional circumstances" established

LEGISLATION CITED:
Bail Act
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
DPP v Louizos [2008] NSWCA 271
R v Pakis (1981) 3 A Crim R 132
R v Roberts and Lardner (1997) 97 A Crim R 456
R v Wilson (1994) 34 NSWLR 1
United Mexican States v Cabal (2001) 209 CLR 165

TEXTS CITED:

DECISION:
Bail revoked forthwith.

PUBLICATION RESTRICTION:
Respondent's name has been anonymised and residential address removed to protect the identity of the complainant.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/040068
McCLELLAN CJ at CL
BUDDIN J
PRICE J
FRIDAY 13 MARCH 2009

DIRECTOR OF PUBLIC PROSECUTIONS v SKA (formerly DPP v AZ)

Judgment – Application for review of bail

BUDDIN J: This is an application by the Director of Public Prosecutions to review a decision by Finnane DCJ (the trial judge) to grant bail to the respondent. To place the present matter in some sort of context it will be necessary to sketch some background detail.
The respondent was convicted on all five counts of an indictment which alleged that he had sexually interfered with the complainant, who is his niece. The first three offences occurred in the period between 1 June 2004 and 31 July 2004 when the complainant was 8. They consisted of one count of sexual intercourse and two counts of aggravated indecent assault. The remaining two offences occurred in the period between 1 and 25 December 2006 when the complainant was 10. On this occasion there was one charge of sexual intercourse and one of aggravated indecent assault. The sexual intercourse offences involved digital penetration and the remaining matters involved the respondent touching the complainant’s breasts. The offences occurred in the respondent’s home on occasions when the complainant stayed the night. The complainant gave evidence that the offending conduct commenced when she was 4 although that earlier conduct did not give rise to charges.
The trial ran from 13 August until 21 August when the jury returned unanimous verdicts of guilty. The respondent was then granted bail, over the Crown’s objection, and the matter was stood over for sentence. For reasons that remain unexplained, the respondent was not sentenced until 6 February 2009.
His Honour sentenced the respondent to the following terms of imprisonment:
Count 1 – sexual intercourse with a child under the age of 10 – a non-parole period of 4 years with an additional term of 4 years
A maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years is applicable to this offence.
Counts 2 and 3 – aggravated indecent assault
On each count a non-parole period of 2 years with an additional term of 2 years to be served concurrently with each other and with count 1.
A maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years is applicable to these offences.
Count 4 – aggravated sexual intercourse with a child between the ages of 10 and 14
A non-parole period of 4 years with an additional term of 4 years which was accumulated by 9½ months upon Count 1.
A maximum penalty of 20 years imprisonment applies to this offence but no standard non-parole period is applicable to it.
Count 5 – aggravated indecent assault
A non-parole period of 2 years with an additional term of 2 years to be served concurrently with the sentence for count 4.
A maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years is applicable to this offence.
The effective non-parole period is thus 4 years 9½ months and the total effective term is 8 years 9½ months imprisonment. His Honour ordered that the sentences were to commence on the date of sentence which, as I have said, was 6 February. His Honour ordered that “there be a stay of execution on the sentences”. His Honour then granted bail upon the following terms:
(a)          that the offender reside at [address removed];
(b)          that the offender refrain from approaching the complainant;
(c)          that the offender surrender his passport;
(d)that the offender not approach the Indian, Australian or any other government for travel documents;
(e)that the offender remain at a distance of 3km from any points of departure from Australia;
(f)that the offender report to Merrylands police station between 8am and 8pm every Monday and Saturday;
(g)that the offender lodge an appeal with the Court of Criminal Appeal within 14 days;
(h)that should the offender lodge an appeal with the Court of Criminal Appeal within 14 days the stay of execution of the sentence lapses; and
(i)that leave is granted to the parties to apply to His Honour in chambers should there be any difficulty with conditions (g) and (h).
It is that grant of bail which the Crown seeks to review. It is to be observed that the respondent has not spent any time in custody in relation to these matters.
On 12 February a Notice of Intention to Appeal against conviction and sentence was lodged in the registry on behalf of the respondent. On 17 February a Notice of Appeal was filed by the Crown seeking to appeal against what is asserted to be the manifest inadequacy of the sentences imposed by his Honour. On the same day a request by the Crown to review his Honour’s determination was also lodged. On 18 February that documentation was served upon the respondent. On 19 February a Notice of Appeal against conviction and sentence was filed on behalf of the respondent. On 26 February 2009 the respondent’s appeal and the Crown appeal were listed for hearing on 13 May in the Court of Criminal Appeal.
On 3 March the Crown’s request to review bail was listed before me. The respondent requested an adjournment in order that the trial judge’s reasons for granting bail could be obtained. Although the Crown opposed the application, because of its understandable concern about there being any further delay, it did nevertheless acknowledge that those reasons may shed light upon the unusual course which the trial judge had taken. In any event I granted the adjournment and stood the matter over until today. In the interim I made an order remitting the matter to this Court in accordance with long standing practice: R v Roberts and Lardner (1997) 97 A Crim R 456. The parties did not oppose that course being taken. I should add that the trial judge’s reasons have now become available.
The sole ground of appeal filed on behalf of the respondent against his conviction is that the verdicts are unreasonable and are not supported by the evidence. Trial counsel had originally sought a certificate from the judge pursuant to s 5(1)(b) of the Criminal Appeal Act 1912. The trial judge declined to grant it observing that “[i]t would have no binding effect on anybody and the fact that I granted it would not be likely to cause the Court of Criminal Appeal to be more persuaded about the correctness of the jury’s verdict than if I did not grant it”.
His Honour nonetheless granted bail and in doing so had regard to s 30AA of the Bail Act which provides that where an appeal is pending in the Court of Criminal Appeal, “special or exceptional circumstances..justifying the grant of bail” must be established. Although no appeal had at that time been lodged by the respondent against his conviction, an undertaking was given by senior counsel then appearing for the respondent that it would be. The matter proceeded upon the basis that the decision of this court in R v Wilson (1994) 34 NSWLR 1 enabled the trial judge to have regard to s 30AA in determining whether or not to grant bail.
After briefly reviewing the evidence, his Honour concluded that no jury acting reasonably could have convicted the respondent. In those circumstances his Honour determined that the respondent had demonstrated that “special or exceptional circumstances” warranting the grant of bail had been established. It may be accepted that if the appeal against conviction was to succeed then the respondent would be acquitted on all counts.
It is common ground that the current review is in the nature of a hearing de novo: R v Pakis (1981) 3 A Crim R 132. Nevertheless the court must exercise restraint given the trial judge’s advantage in weighing the factors that supported the grant of bail: DPP v Louizos [2008] NSWCA 271 [at par 15].
In R v Wilson (supra) Kirby P said:
In R v Waters (1990) 9 Petty SR 4016, Badgery-Parker J expressed the opinion that in an application for bail where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed.
The applicant must be most likely to succeed. This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances. (at p 6)
Hunt CJ at CL said:
I agree … that something more than an arguable ground of appeal must be shown in order to establish the special or exceptional circumstances required by s 30AA of the Bail Act 1978.
In R v Southgate (1960) 78 WN (NSW) 44, this Court, when considering an application for bail, said (at 44) that, where the guilt of the appellant has been established by the jury's verdict in what must be taken — until the contrary be shown — to have been a trial properly conducted and without error of law, it is most unusual that he should be admitted to bail pending the determination of his appeal.
…
In R v Smith (Court of Criminal Appeal, 18 May 1993, unreported), I said (at 2) that, bearing in mind what was said in R v Southgate, it has to have an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application. Where the prospects of success on the appeal are put forward as a special circumstance, I said (at 2-3), what must be established is a ground of appeal which is certain to succeed — and one which can be seen without detailed argument to be certain to succeed. It is not sufficient to show a merely arguable ground of appeal, or even one which has a reasonable prospect of success. (at 7-8)
The respondent submitted that the statutory test in s. 30AA had been satisfied because the ground of appeal asserting that the verdicts of the jury were unreasonable was said to enjoy “an extraordinarily high prospect of success”. In order to assess that submission, the court was provided with a body of material which included the written submissions on behalf of the respondent and the Crown respectively that were before the trial judge. The material also included the written submissions which have been filed on behalf of the respondent in support of the appeal against conviction and further written submissions in response from the Crown filed in support of its application for review of the respondent’s bail. That material was amplified in oral argument.
I will endeavour to address that material bearing in mind the principles to which reference was made earlier. First, the respondent relies upon the fact that the only evidence in the Crown case was the uncorroborated testimony of the complainant and that there was no evidence of a contemporaneous complaint. I do not think that much turns upon either of those matters which are not uncommon features of cases such as the present. The complainant, in any event, gave reasons as to why she had not complained earlier. Secondly, there was evidence from the complainant’s sister that was inconsistent with the complainant’s evidence. This related to an occasion on which one of the assaults occurred during the course of which the sister was said by the complainant to be present. There was also a significant dispute as to how frequently the complainant stayed at her uncle’s house which is where, as I have said, the offences allegedly took place It is difficult, upon the material which is before the Court, to accurately assess the significance of this material and indeed other material which may suggest inconsistencies and deficiencies in the complainant’s evidence. What is apparent however is that the complainant’s sister did support other aspects of the complainant’s evidence. Thirdly, it was contended that the complainant’s evidence was vague and lacked detail. It is again difficult to assess this submission but it does not seem that the lack of specificity, particularly about the precise dates on which events allegedly occurred, went beyond what would normally be expected in a case such as the present. Moreover, the trial judge described her as having given her evidence “in a very forthright and compelling manner”. It may well be that the jury took the same view. Fourthly, it was contended that the allegations were refuted in sworn evidence given by the respondent and in alibi evidence called on his behalf. The alibi evidence was confined to the counts which related to December 2006. The trial judge observed that he found those witnesses to be honest although his Honour did acknowledge that the jury was entitled to accept the complainant’s evidence and to reject the evidence called on behalf of the respondent. His Honour also observed that those witnesses had displayed some animus towards the complainant. There was also evidence called by the Crown from a witness who had originally sought to provide support for the respondent’s alibi but who later retracted her evidence. As I understand the situation, there was a lively debate at the trial about the significance of her having done so. The Crown submitted that it established that the respondent had concocted the alibi whilst on the respondent’s behalf it was urged that she had simply made a mistake which she later corrected.
A report from the informant indicates that the respondent has been complying with his bail conditions including attending at court as and when required to do so. The officer observes however that the complainant and her family are distressed by the fact that they regularly see the respondent because he remains living in close proximity to them and attends the same church.
I am prepared to accept that the respondent can point to matters that are capable of reflecting, at least to some extent, upon the complainant’s reliability. That being so, it would seem that he has at least an arguable case in relation to his appeal against conviction. That however is not sufficient to satisfy the requirements of s 30AA. Although it is scarcely determinative of the present issue, it is nonetheless pertinent to observe that the jury retired to consider its verdicts at 11.55 am on 21 August and returned just over 3 hours later (at 3.12 pm) with, as I have said, verdicts of guilty on all counts. In the scheme of things, that is a relatively short retirement for a case of this kind.
As I have also said, the appeals are listed for hearing on 13 May, which is precisely two months away. A similar situation arose in Louizos (supra). In that case the offender received a sentence of 10 years imprisonment with a non-parole period of 6 years. The hearing of the appeal was then about six weeks away. In proposing that bail granted by the sentencing judge be revoked, McClellan CJ at CL who wrote the leading judgment, observed that
[w]here, as in the present case, the term of the non-parole period imposed extends well beyond the date of the likely resolution of the appeal, unless there is likely to be some extraordinary delay, the fact that the appeal cannot be heard in the immediate future could not justify a finding of special or exceptional circumstances.
…
I have indicated that the possibility that an appeal may lead to an acquittal is a relevant consideration. However, because of the term of the respondent’s sentence that consideration is of minor significance in the present case. [at pars 21, 23]
His Honour’s remarks are apposite to the present case.
In United Mexican States v Cabal (2001) 209 CLR 165. Gleeson CJ, McHugh and Gummow JJ in a joint judgment, observed that:
[i]n 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, 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.
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. (at 181)
Although their Honours were dealing with an extradition case rather than s 30AA of the Bail Act, their remarks are of general application.
Having had regard to the material which is before the Court, I am not persuaded that the respondent’s prospects of success on appeal are such that a finding of “special or exceptional circumstances” is warranted. Nor am I persuaded that there are any other features of the case, either individually or in combination, that would satisfy the statutory test.
In my view the application to review bail should be granted and bail should be revoked forthwith.
McCLELLAN CJ at CL: I agree.
PRICE J: I also agree.
McCLELLAN CJ at CL: Accordingly the order of the Court is that bail is revoked forthwith.
**********

AMENDMENTS:

18/03/2009 - Respondent's name has been anonymised and residential address removed to protect the identity of the complainant. - Paragraph(s) 5 and coversheet

03/08/2009 - Judgment name altered to read DPP v SKA (formerly DPP v AZ) - Paragraph(s) Title

LAST UPDATED:
5 August 2009