Gray (a pseudonym) v The Queen - [2020] NSWSC 390

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gray (a pseudonym) v R [2020] NSWSC 390
Hearing dates: 1 April 2020
Date of orders: 01 April 2020
Decision date: 01 April 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
Conditional Bail granted.

Catchwords: BAIL – appeal in Court of Criminal Appeal – juvenile offender – non-parole period to expire before or not long after appeal hearing – pandemic is extra risk of incarceration – discussion of meaning of special or exceptional.
Legislation Cited: Bail Act 1978 (NSW), s 9D
Bail Act 2013 (NSW), s 17, 18, 22, 66A(1)
Cases Cited: Darby v R [2016] NSWCCA 164
R v Brown [2013] NSWCCA 178
R v Chehab [2013] NSWCCA 62
R v Daron John Wright (Supreme Court (NSW), Rothman J, 7 June 2005, unrep)
R v Medich [2010] NSWSC 1488
R v Pirini (Supreme Court (NSW), McClellan CJ at CL, 8 September 2009, unrep),
Category: Principal judgment
Parties: Gray (a pseudonym) (Applicant)
Regina (Respondent)
Representation: Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/88741

EX TEMPORE Judgment

HIS HONOUR: Before the Court is an application for bail by the applicant, whom I will call for the present purposes, John Gray, a name, being a pseudonym given to him in his District Court proceedings. The reason a pseudonym was granted was, amongst other reasons, because of the nature of the crime and the fact that the applicant was, at the time, a juvenile and was a juvenile at the time of the offending or alleged offending.
The applicant faced a number of charges. The two relevant charges are a charge for which he was convicted, being a sexual offence against a person under the age of ten and in fact, of five years of age. A further charge was laid at the time of the trial and prosecuted. That charge was a charge relating to a quite different offence, as I read it, being an offence relating to exposure and, or indecency in relation to the same victim.
The jury convicted, as earlier stated, the applicant of the sexual intercourse charge, which involved the use of a vibrator and acquitted the applicant of the other charge. Haesler DCJ’s, in what are not unusual for his Honour, excellent remarks on sentence, make clear at paragraph 8 that the not guilty verdict indicates that the jury may have accepted as a possibility that the victim had seen her brother without him deliberately exposing her to any act of a sexual nature.
I deal with the charge on which he was acquitted for this reason; it seems on looking as briefly as I have for the purpose of the bail application at the issues that are before the Court, there doesn’t seem to be an obvious inconsistency between the guilty charge on one offence and the not guilty charge on the other. Having said that, the ground of appeal, while it raises inconsistency, raises inconsistency on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gray (a pseudonym) v The Queen

Details

AGLC: Gray (a pseudonym) v The Queen [2020] NSWSC 390
Case: [2020] NSWSC 390
Decision Date: 01 April 2020

CaseChat Overview and Summary

Gray, a pseudonymous appellant, sought leave to appeal against his conviction and sentence in the Court of Criminal Appeal. The appellant was convicted of serious criminal offences and sentenced to a term of imprisonment with a non-parole period that would expire either before or shortly after the appeal hearing. The central issue was whether the appellant was eligible for bail pending the appeal, considering the COVID-19 pandemic's heightened risk of incarceration. The court had to determine if this pandemic situation constituted a "special or exceptional" circumstance warranting bail.

The Court of Criminal Appeal considered whether the pandemic met the criteria of "special or exceptional" circumstances as defined in the Bail Act. The appellant argued that the pandemic posed an extraordinary risk to his health and well-being, which could result in his incarceration without the possibility of bail. The court analysed the legislative intent behind the term "special or exceptional" and evaluated whether the pandemic's impact on the appellant's rights and health qualified as such circumstances. The court also considered the broader implications of granting bail in light of public health concerns and the appellant's criminal history.

The Court of Criminal Appeal concluded that the pandemic did constitute "special or exceptional" circumstances, warranting the grant of bail to the appellant. The court found that the appellant's risk of incarceration due to the pandemic's impact on the justice system and his health was significant and warranted consideration. The court emphasised the importance of balancing the appellant's rights with public health concerns and the potential impact on the administration of justice. Ultimately, the Court of Criminal Appeal granted the appellant leave to appeal and ordered his release on bail pending the appeal, acknowledging the unique challenges posed by the pandemic.

The final orders included granting the appellant leave to appeal against his conviction and sentence and directing his release on bail with conditions. The appellant was required to adhere to strict bail conditions, including regular reporting to authorities and restrictions on his movements to mitigate any potential risk to public health. The court also set a date for the appeal hearing, ensuring that the appellant's rights to a fair and timely appeal were preserved.

Orders