HT v Director of Public Prosecutions (NSW)

[2019] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
Hearing dates:	05 June 2019
Decision date:	05 June 2019
Before:	Bathurst CJ at [1], [35] and [37] Bell P at [36] Hamill J at [2]
Decision:	(1) Release application allowed (2) Conditional bail granted
Catchwords:	CRIMINAL LAW – bail – appeal bail – appeal to the High Court – where special leave granted – “special or exceptional circumstances” – appeal at least arguable – where non-parole period imposed in District Court expired – where substantial proportion of non-parole period imposed on Crown appeal will have been served – applicant on bail for three years pending sentence – bail granted
Legislation Cited:	Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 22 and 67 Bail Act 1978 (NSW) Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited:	Attorney General for New South Wales v CMB [2015] NSWCCA 166 Chamberlain v The Queen (No 1) (1983)153 CLR 514 Collins v The Queen (1975) 133 CLR 120 El-Hilli & Melville v R [2015] NSWCCA 146 HT v The Queen [2019] HCATrans 075 Marotta v The Queen (1999) 73 ALJR 265 Peters v The Queen (1996) 71 ALJR 309 R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45
Category:	Principal judgment
Parties:	HT (Applicant) Director of Public Prosecutions (NSW)
Representation:	Counsel: G Huxley (Applicant) D Kell SC; E Jones (Respondent)   Solicitors: Maria Walz Legal (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2019/00118419
Publication restriction:	No publication of the offender’s name.

ex tempore Judgment (revised)

1. BATHURST CJ: I will ask Hamill J to deliver the first judgment.

2. HAMILL J: HT makes a release application pursuant to s 67 of the Bail Act 2013 (NSW). That section relevantly provides:

The Court of Criminal Appeal may hear a bail application for an offence if:

…

(d) an appeal from the Court is pending in the High Court.

3. The background to the application is as follows.

4. On 29 May 2014, the applicant was arrested for a number of offences of dishonesty. She was granted bail. The applicant was on bail from the date of arrest until the date she was sentenced.

5. On 23 February 2017, the applicant was sentenced by Conlon DCJ to an aggregate sentence of 3 years and 6 months with a non-parole period of 18 months commencing on 23 February 2017. The non-parole period imposed by Conlon DCJ expired on 22 August 2018. She has served the whole of the non-parole period imposed by Conlon DCJ.

6. On 17 July 2017, a prosecution appeal against the purported inadequacy of the sentence was upheld. The Court of Criminal Appeal (differently constituted) re-sentenced the applicant to an aggregate sentence of 6 years and 6 months with a non-parole period of 3 years and 6 months. The compulsory custodial component of that sentence, that is the non-parole period, will expire on 22 August 2020.

7. On 3 October 2018, the applicant lodged an application for special leave to appeal to the High Court against the whole of the judgment of the Court of Criminal Appeal. The proposed grounds of appeal asserted a denial of procedural fairness surrounding the failure of the Court of Criminal Appeal to allow the applicant’s lawyers access to a document setting out the applicant’s assistance to authorities.

8. On 12 April 2019, the High Court (Gageler, Gordon and Edelman JJ) heard the special leave application: HT v The Queen [2019] HCATrans 075. At the commencement of the hearing, the presiding Judge indicated that the Court “[has] a strong preliminary disposition towards granting special leave in this matter”. His Honour also expressed some concern about the “truncated form of the first ground [of appeal].”

9. Following a brief hearing, the application for special leave to appeal was granted.

10. On 24 April 2019, the applicant filed a notice of appeal to the High Court in accordance with directions made by the Deputy Registrar of the High Court. The grounds of appeal are as follows:

1. The CCA erred in denying the appellant and/or her legal representatives access to Ex C at the hearing of the Crown appeal against sentence.

2. The appellant was denied procedural fairness at the hearing of the Crown appeal against sentence in the CCA.

3. The CCA erred in exercising its discretion in s 5D of the Criminal Appeal Act 1912 (NSW) to vary the sentence imposed on the appellant. In particular, the CCA failed to consider:

1. The denial of procedural fairness afforded to her at the hearing of the Crown appeal against sentence and its significance; and

2. The conduct of the executive in bringing the appeal in circumstance where she was denied access to Exhibit C.

11. The notice of appeal sets out the orders sought by the applicant as follows:

1. The orders made by the New South Wales Court of Criminal Appeal on 28 June 2017 and 17 July 2017 are set aside.

2. The Crown appeal is dismissed or alternatively, the appeal is remitted to the New South Wales Court of Criminal Appeal to be dealt with in accordance with law.

3. The contents of Ex C are suppressed until further order of the Court.

12. The Deputy Registrar of the High Court made a number of other directions for the expeditious and efficient conduct of the appeal. These included the dates for filing of submissions and chronologies. The applicant in this Court has now filed her written submissions to the High Court. Her reply submissions are due to be filed on or before 19 July 2019 and a joint book of authorities is to be filed on or before 2 August 2019. There is provision under the High Court Rules (44.03 and 44.05) for the timetable to be adjusted if submissions are filed early or late.

13. Based on these directions, it can reasonably be expected that the High Court will hear the appeal in the second half of this year. No doubt, the Court will deliver judgment and determine the appeal later this year or in the early part of 2020.

14. On the release application, the applicant initially read two affidavits filed in advance of the hearing. The first was affirmed by her solicitor, Ms Waltz. It set out the procedural history I have just recounted and provided a detailed chronology of the steps her firm has taken since taking over carriage of the matter in July 2017. It also described the conditions of bail to which the applicant was subjected from June 2014 until she was sentenced. The second affidavit was affirmed by the applicant’s sister. This set out a number of matters relevant to a consideration of the bail application and which are, to a greater or lesser extent, relevant to the factors set out in s 18 of the Bail Act 2013 which guide a consideration whether any “bail concerns” identified under s 17 are “unacceptable risks” under s 19. At the hearing of the application further affidavits were read. The applicant’s son offered security in the form of a $20,000 cash deposit which he would agree to forfeit if the applicant failed to appear.

15. The respondent read an affidavit of a solicitor in the employ of the Director of Public Prosecutions. Annexed to this affidavit was the applicant’s criminal history, a “COPS” event E58306035 containing a narrative of events that occurred on 6 August 2015, and a witness statement relating to those events. The information in the second and third annexures suggested that the applicant may have breached a bail condition not to associate with any of her victims or witnesses in the case. It describes a heated argument between the applicant and a witness that took place in a shopping centre near to the applicant’s residence.

16. The police officer who created the COPS event stated that “police cannot determine whether the [applicant] had pre-arranged the meeting” but noted that both parties lived in the area near the shop and expressed the opinion that “it is likely that their meeting was coincidental”. Even allowing for that possibility, the police officer suggested that the applicant had an opportunity to leave the area but, instead, remained and engaged in the verbal exchange with the victim. This, in itself, may have constituted a breach of bail. Police determined that the most appropriate action was to issue the applicant with a warning. There were no formal breach proceedings.

17. With the exception of the incident just recounted, it appears that the applicant otherwise complied with the conditions of her bail undertaking.

18. Both parties filed helpful written submissions in advance of the release application.

19. The respondent opposed the grant of bail. It was submitted that the applicant was required to establish that there are “special or exceptional circumstances” justifying the grant of bail. This requirement arises pursuant to s 22 which provides:

22 GENERAL LIMITATION ON COURT’S POWER TO RELEASE

(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision:

(a) an offence for which an appeal is pending in the Court of Criminal Appeal against:

(i) a conviction on indictment, or

(ii) a sentence imposed on conviction on indictment,

(b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

(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 his or her detention is not justified.

(3) Subject to subsection (1), Division 2 (Unacceptable risk test--all offences) applies to a bail decision made by a court under this section.

20. The applicant’s initial written submission did not address s 22. Rather it addressed the questions that arise under ss 17-19 of the Bail Act 2013 – that is, the question of whether there is an unacceptable risk that the applicant would:

1. Fail to appear at any proceedings for the offence, or

2. Commit a serious offence, or

3. Endanger the safety of victims, individuals or the community, or

4. Interfere with witnesses or evidence.

21. In submissions in reply, the applicant seemed to accept that s 22 applied. Submissions were made that a combination of factors established that there were exceptional circumstances justifying the grant of bail.

22. I am satisfied that the provisions in s 22 apply to the present application. A prosecution appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is an appeal to the Court of Criminal Appeal against a sentence imposed on conviction on indictment. Neither s 67 nor s 22 of the Bail Act 2013 distinguishes between appeals by an offender and appeals by a prosecuting authority. Accordingly, the applicant must establish that there are special or exceptional circumstances justifying the grant of bail.

23. This Court considered the operation of s 22 in El-Hilli & Melville v R [2015] NSWCCA 146. Simpson J (as her Honour then was) and Davies J agreed with my judgment. It is unnecessary here to repeat the analysis of the history of appeals bail, including cases decided under the High Court’s inherent jurisdiction and under the Bail Act 1978 (NSW), [1] or the application of the “special or exceptional” test under the current bail legislation. [2] I approach the present application on the basis of the principles explained in El-Hilli & Melville.

    1. See Peters v The Queen (1996) 71 ALJR 309 at 310 (Dawson J) and Chamberlain v The Queen (No 1) (1983)153 CLR 514 at 518.

    2. El-Hilli and Melville at [15] – [29].

24. However, four things may be observed. First, s 22 creates a significant hurdle to an applicant for bail who is pursuing an appeal against a conviction or sentence in proceedings prosecuted on indictment. Secondly, unlike the “show cause” requirement in ss 16A and 16B of the Bail Act 2013, s 22 incorporates the exhaustive list of factors in s 18 that guide a consideration of whether there is an unacceptable risk in releasing an offender to bail. [3] Third, “special or exceptional circumstances” may exist as a result of a combination of circumstances or features of a case. [4] It is not necessary to establish that the appeal is almost certain to succeed. [5] Fourth, two commonly arising considerations are whether the appeal is arguable or enjoys reasonable prospects of success and whether the sentence the subject of the appeal is likely to expire before the appeal is determined. [6]

    3. El-Hilli and Melville at [16], [28].

    4. El-Hilli and Melville at [29].

    5. El-Hilli and Melville at [24] – [26].

    6. El-Hilli and Melville at [29].

25. To those four things it might be added that “applications for special leave to appeal to [the High Court] are not liberally granted”. [7] One of the bases upon which special leave is often refused is that the appeal does not enjoy reasonable prospects of success. The fact that special leave has been granted indicates that the appeal to that Court is, at least, arguable. This is not to “invest” the sentence imposed by the Court of Criminal Appeal with a “provisional quality”. [8] Rather, it is to give content to the concept of “special or exceptional circumstances” and to acknowledge the significant screening of cases that takes place during the special leave process. Until the grant of special leave “there are no proceedings inter partes before the Court”. [9]

    7. Marotta v The Queen (1999) 73 ALJR265 at [14] (Callinan J). See also paragraph [16].

    8. Cf Chamberlain v R (No 1) [1983] HCA 13; (1983) 153 CLR 514 (Brennan J).

    9. Collins v The Queen (1975) 133 CLR 120.

26. The offences in relation to which the applicant pleaded guilty and was sentenced were extremely serious crimes of dishonesty. They involved fraudulent conduct over a period of 5 ½ years in which the applicant targeted older men she met through online and newspaper dating services. The applicant used false names and identities and induced the men to believe she was interested in having a relationship with them. In each case, she told a variety of intricate lies to induce the men to part with their money. The deceptive conduct was planned and relatively sophisticated. The applicant committed about 500 fraudulent transactions with total defalcations of more than $2.2 million.

27. In opposing bail, the respondent relies on the serious and repetitive nature of the offending. It also refers to the applicant’s criminal history which includes past offences of obtaining money by deception and a failure to comply with a community service order. Those offences were dealt with back in 1999. They are obviously relevant but not of significant weight given the applicant’s compliance with bail conditions over a period of almost three years.

28. The combination of circumstances relied on by the applicant to establish special or exceptional circumstances justifying the grant of bail include:

1. The applicant has already served the entirety of the non-parole period imposed by the Judge at first instance. By the time the appeal is heard and determined by the High Court, a substantial period of the entire sentence imposed by Conlon DCJ will have expired. The whole of that sentence will expire on 22 August 2020.

2. Similarly, a significant portion of the non-parole period imposed by the Court of Criminal Appeal will have expired. That non-parole period is to expire on 22 August 2020. While there is no guarantee that the applicant would be released at the expiration of the non-parole period and an order for parole would have to be made by the Parole Authority, that is the first day that she would be eligible for release to parole and, given the nature of the charge and other relevant circumstances, it is reasonable to assume that the applicant would be released on or shortly after the date that the non-parole period expires assuming she is of good behaviour whilst in custody.

3. It must be assumed that the appeal is arguable, special leave having been granted, and that the appeal can be considered to enjoy at least some prospects of success.

4. With one possible exception, which was not subject to a formal breach allegation and which was dealt with by some kind of warning, the applicant complied with conditional bail for a number of years pending the outcome of the criminal proceedings in the District Court.

5. After pleading guilty, and facing the near inevitability of a custodial sentence, the applicant attended the District Court for sentence in accordance with her bail undertaking.

6. The matters raised in the affidavit of the applicant’s sister establish a compelling personal case in favour of the grant of bail. This includes the health issues of the applicant’s mother and the difficulties faced by her sister in caring for their sick mother. The sister has four children of her own, is caring for three of the applicant’s children and is pregnant with twins.

29. The first three of those factors are matters which have satisfied the “special or exceptional circumstances” test in previous cases involving bail pending appeal to the Court of Criminal Appeal or High Court.

30. Based on all of the material before the Court, I am satisfied that the applicant has established special or exceptional circumstances justifying the grant of bail. A significant factor is the fact that the applicant has already served the whole of the non-parole period imposed in the District Court. I have taken into account the possibility that, if the appeal is successful, the High Court may remit the matter back to this Court (rather than simply to dismiss the prosecution appeal to this Court). That would expose the applicant to an increase in the sentence and non-parole period imposed by Conlon DCJ. Even so, that process will take some time and may be a relevant factor in whether the Court exercises its discretion to increase the sentence. This “buffeting” of offenders subject to litigation taking a similar course was an important consideration in the decisions of this Court on remitter in both R v Carroll and Attorney General v CMB. [10]

    10. See R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45 at [65], Attorney General for New South Wales v CMB [2015] NSWCCA 166 at [83].

31. I have considered the bail concerns raised by the respondent. In particular, I have considered the submission that the applicant’s criminal history of offences of dishonesty, and the fact that her assets have been frozen, raise a concern that she will resort to crimes of dishonesty while her appeal to the High Court is pending. I consider that is a genuine bail concern for the purpose of s 17. Similarly, I am satisfied that the risk of flight is a bail concern given the possibility that the applicant may be returned to custody at the end of the appeal process. I am not convinced that the applicant presents a risk of interfering with witnesses. As the applicant points out, she has now pleaded guilty and her case is in the appeal courts. There is little, if anything, she could do to interfere with the evidence.

32. In relation to the concerns that do exist, the imposition of bail conditions can mitigate the risks that arise from the bail concerns arising under s 17. The bail concerns do not rise to the level of “unacceptable risks” for the purpose of s 19. In coming to that conclusion I have considered the factors referred to in s 18 insofar as they are, to a greater or lesser extent, relevant to the applicant’s release application.

33. The respondent set out a number of proposed conditions as an alternative to its primary submission that bail be refused. Those conditions are more stringent than those that applied before the applicant was sentenced. That is, perhaps, appropriate given that the applicant has now been sentenced. The applicant’s submission in reply accepted some of the conditions but not others. I am not satisfied that all of the conditions proposed are necessary or appropriate to mitigate the bail concerns and reduce the risks involved in the applicant’s release to bail. In my assessment, especially in the light of the applicant’s compliance with bail in the past, not all of those conditions are necessary.

29. I would make the following orders:

1. Release application granted.

2. Bail to be granted on conditions.

35. BATHURST CJ: I agree with the judgment of Hamill J.

36. BELL P: I also agree.

FURTHER DISCUSSION REGARDING CONDITIONS

37. BATHURST CJ: The Court grants the release application, bail being granted subject to the conditions contained in the orders handed to the Court today, initialled by me, and placed with the papers. It will be noted that the address in sub-para (4) of the orders is subject to the suppression order which has already been made.

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Endnotes

Decision last updated: 28 June 2019