Owen James Salmon v Regina

[2011] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Owen James Salmon v Regina [2011] NSWCCA 83

Hearing dates:

23 February 2011

Decision date:

25 February 2011

Before:

Whealy JA, Hidden, Johnson JJ at [1]

Decision:

(1) Application for bail review is dismissed.

(2) Bail is refused.

Catchwords:

CRIMINAL LAW - bail following conviction and pending appeal - review of single judge's decision - review by way of re-hearing - need for applicant to show special or exceptional circumstances.

Legislation Cited:

Bail Act 1978 ss 30AA, 45(1)(b), 45(3)
Crimes Act 1900 s 579
Police Integrity Commission Act 1996 ss 26, 137
Supreme Court Act 1970
Supreme Court Rules 1970

Cases Cited:

Petroulias v R [2010] NSWCCA 95 at [13]
R v Hamill (1986) 25 A Crim R 316
Wilson v R (1994) 34 NSWLR 1
R v Southgate (1960) 78 WN (NSW) 44
Director of Public Prosecutions v SKA [2009] NSWCA 51

Category:

Principal judgment

Parties:

Owen James Salmon (Applicant)
Crown (Respondent)

Representation:

Counsel:
N J Gouda (Crown)
Applicant in person
Solicitors:
Applicant in person
Director of Public Prosecutions (Respondents)

File Number(s):

2009/10943

 Decision under appeal 

Date of Decision:

2011-01-07 00:00:00

Before:

Hall J

File Number(s):

2009/10943

Judgment

1. THE COURT: Mr Salmon (whom we shall refer to as the applicant) seeks a review of a bail determination made by Hall J in the Supreme Court on 7 th January 2011. This application was first listed before R A Hulme J on 27 th January 2011. On that date, Hulme J determined that he did not have jurisdiction, as a single judge, to review the decision of Hall J. This was because of the terms of s 45(3) of the Bail Act 1978 . The Court of Criminal Appeal may review any decision in relation to bail, in relation to an order made by the Supreme Court (s 45(1)(b)). However s 45(3) prevents a judge of the Court of Criminal Appeal, sitting alone, from reviewing a decision of a judge of the Court unless the Rules made under the Supreme Court Act 1970 so provide. There are no rules that permit such a review. Consequently, the review application was listed for hearing before this court and was heard on Wednesday 23 rd February 2011. The applicant was self-represented. Ms Gouda appeared for the respondent. The Crown opposed bail. Our decision was reserved until 10am Friday 25 th February 2011.

1. On 15 th December 2009, a jury had found the applicant guilty of three offences: larceny (Count 1), assault (Count 2) and robbery (Count 3). Each offence had been committed on 12 th March 2009. The facts found by the sentencing judge (Ainslie-Wallace DCJ) indicated that, after a financial dispute between the applicant and his victim, the applicant visited her office. While he was there he stole her computer modem and router. These were the facts supporting Count 1. At about 12:00pm the same day, the applicant returned to the victim's office and physically assaulted her. Those facts comprised the assault in Count 2.

1. The applicant then reached over to the victim's computer, pulled the cords out and grabbed the computer. The victim tried to stop him taking the computer. The offender swung himself and the victim around and shoved her to cause her to release her hold on the computer, eventually pushing her, whereupon she lost her grip. The offender made off with the computer down the stairs. The victim followed, whereupon the applicant raised his arm, clenched his fist as if to punch her, put his face close to hers and said to her, "You're dead", at which time she ceased following him. These facts made up Count 3 in the indictment.

1. The applicant was remanded in custody following conviction on 15 th December 2009. A Notice of Intention to Appeal against conviction was filed on 19 th January 2010. Pending sentencing, the applicant applied for bail in the Supreme Court. The application was heard by R S Hulme J on 3 rd February 2010. On that date, his Honour dismissed the application.

1. The applicant was sentenced by her Honour Judge Ainslie-Wallace on 19 th March 2010, as follows:

(1)   Larceny: fixed term of imprisonment for one month, to date from 14 th December 2009 and to expire on 13 th January 2010.

(2)   Assault: fixed term of imprisonment for three months, to date from 14 th January 2010 and to expire on 13 th April 2010.

(3)   Robbery: non-parole period of one year to date from 14 th March 2010 and to expire on 13 th March 2011, with a balance of nine months, to expire on 13 th December 2011.

1. Thus it will be seen that, in practical terms, the sentencing judge imposed an overall non-parole period, by way of accumulation and concurrence, of fifteen months.

1. A Notice of Intention to Appeal against conviction and a Notice of Intention to Apply for Leave to Appeal against sentence were filed on 25 th March 2010. An extension of time was granted for the filing of notices, grounds and submissions, and these were filed on 28 th October 2010.

1. The matter was originally listed for hearing in the Court of Criminal Appeal on 14 th December 2010. However, on 2 nd December 2010 the hearing date was vacated on the applicant's application. A further hearing date of 2 nd March 2011 was also vacated on the applicant's application. The appeal is now listed for hearing on 27 th May 2011. As appears from the sentencing details, the applicant is to be released to parole on 13 th March 2011, that is in a little over two weeks' time.

1. The present application for a review is a hearing de novo ( Petroulias v R [2010] NSWCCA 95 at [13]; R v Hamill (1986) 25 A Crim R 316).

1. Although the present review is a hearing de novo, it is not inappropriate to note the basis on which the application for bail was refused by Hall J in his carefully considered and detailed decision of 7 th January 2011. His Honour said, at [41]:-

What must be established are grounds of appeal that are certain to succeed, and ones which can be seen from themselves and the material put forward, without any detailed argument, to be certain of success.

That test, his Honour said, had not been met in the bail application he heard.

1. The reason for such a stringent test derives from the terms of s 30AA of the Bail Act 1978 . This provides:

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.

1. The accepted principle derived from the use of the expression "special or exceptional circumstances" in the legislation is well settled ( Wilson v R (1994) 34 NSWLR 1) and was correctly identified by Hall J in the decision under review. See also R v Southgate (1960) 78 WN (NSW) 444 and (more recently) Director of Public Prosecutions v SKA [2009] NSWCA 51.

1. The grounds of appeal in the notice filed in October 2010 identified two grounds against conviction. The first was that the trial miscarried as a result of hearsay evidence being admitted. The second was that the trial miscarried as a result of the trial advocate putting to the jury that the appellant had lied in relation to twelve matters, none of which had been put to him in cross-examination.

1. The grounds of appeal against sentence were, first, that the trial judge had not had regard to the fact that the offending conduct could have been dealt with in the Local Court, where a lower maximum penalty would have applied. Secondly, that the learned judge erred in failing to reflect her finding as to the low objective seriousness of the robbery in the sentence. Thirdly, that the principles of totality were offended by the sentencing judge partially accumulating the sentences and for effectively "double punishing" the offender for the assault charge. The fourth ground was that the sentence was manifestly excessive.

1. It is appropriate to note that in the proceedings before Hall J, his Honour pointed out that there had been an earlier application for bail following conviction. This had been dealt with by Price J in the Supreme Court. In relation to this application, Price J had refused bail on 7 th December 2010, precisely on the basis that the grounds of appeal against conviction did not constitute special or exception circumstances such as to justify bail. Similarly, his Honour considered that the grounds in the severity appeal could not enable it to be said that the appeal was virtually certain to succeed.

1. Further, Hall J said that in the hearing before him, there were now fifteen grounds of appeal against conviction. These were set out in a draft document handed to him. Six sentencing grounds were contended for in oral submissions. There was a degree of overlap between the old and new grounds. It was on the basis of these more comprehensive grounds, at least in numerical terms, that the applicant had submitted to Hall J that special or exceptional circumstances were established. His Honour concluded that in order to satisfy s 30AA, the matters which were contained in the supplementary grounds of appeal could not constitute special circumstances unless there was material from which a judge could assess, firstly, that there was a cogent basis to support the grounds, and secondly, that it was almost certain to result in a successful appeal, based on those grounds.

1. As we have said, Hall J examined the extensive material relied on by the applicant but did not consider that any of the material satisfied the statutory test.

1. It is fair to say that we have been provided with precisely the same material given to Hall J. That material, however, has itself been supplemented by other material. It will be convenient to list the material we now hold, it forming the entire basis of the applicant's submissions.

(1)   53 page bundle of submissions, including draft grounds of appeal against conviction and sentence (this material was originally before Hall J)

(2)   41 page bundle of material in support of review submissions (new)

(3)   Bail chronology and attachments (these were prepared by the respondent for the purposes of an earlier bail application)

(4)   Case law relied upon in conviction appeal (dealing with Crown misconduct) (new)

(5)   List of special or exceptional circumstances relied on by the applicant (new)

(6)   Ground 11 details and argument (new)

1. It will be convenient at this stage to set out the draft grounds of appeal against both appeal and sentence as they were formulated before this court. It should be emphasised that they are draft grounds only at this stage. They represent the applicant's current thinking and no doubt may enlarge or diminish as his appeal is further prepared.

Conviction grounds

Ground 1: That the trial miscarried as a result of hearsay evidence being admitted.

Ground 2: That the trial miscarried as a result of the Crown Advocate putting to the jury that the appellant had lied in relation to twelve matters, none of which had been put to him in cross-examination. Separately the 12 lies appear substantially to have been fabricated by the Crown Advocate.

Ground 3: The trial miscarried when the learned judge allowed inadmissible police statements into evidence in breach of s33.

Ground 4: Justice miscarried when her honour allowed 'prejudicial' information to be continually stated to the jury.

Ground 5: A miscarriage of justice occurred when a police interview obtained under significant duress was admitted into evidence in breach of s84 of the Evidence Act.

Ground 6: A miscarriage of justice occurred when both the defence solicitor and counsel failed to take any direction before or during the trial.

Ground 7: A substantial miscarriage of justice occurred when Her Honour continually allowed the Crown to misconduct himself in the trial.

Ground 8: Justice miscarried when Her Honour prevented crucial evidence being adduced by the accused and defence counsel in breach of s79 of the Evidence Act,

Ground 9: Justice miscarried when Her Honour revoked the accused's bail mid trial and prevented a fair trial being run.

Ground 10: In relation to a claim of right, that the convictions are unreasonable in the circumstances.

Ground 11: The trial miscarried when the learned judge failed to give adequate directions to the jury on real issues throughout the trial.

Ground 12: The trial miscarried when evidence contradictory to the Corporations Act 2001 was given to the jury by the Crown.

Ground 13: Based on 'new' evidence from ICAA, the convictions are unsafe having regard to all the evidence.

Ground 14: For count 3, the verdict is unsafe given new evidence and correct direction on the elements of the offence.

Ground 15: In the context of the previous 14 appeal grounds, the verdicts in this matter are unsafe and unreasonable.

Sentence grounds

Ground 1: That the learned trial judge erred in failing to have regard to the fact that the said offending conduct could have been dealt with in the local court, where the maximum penalty of 12 months imprisonment would apply.

Ground 2: That the learned judge erred in failing to reflect her finding as to the low objective seriousness of the robbery in the sentence.

Ground 3: That the learned trial judge erred in her application of the principles of totality by partially accumulating the sentences and for effectively "double punishing" the offender for the assault charge.

Ground 4: That the learned judge erred in that discounts for protective custody were not applied to this offence.

Ground 5: That material errors, fabrications and misunderstandings of fact influenced the sentencing of the appellant.

Ground 6: That the sentence is manifestly excessive.

1. The applicant also relied on a new ground described as "Ground 11". This alleged that "justice miscarried when her Honour failed to give a direct ruling on spent or old convictions."

1. The applicant argued that there were "certain to win" grounds of appeal in the list he provided. We shall deal with the new sentence appeal grounds first. The applicant argued that, on the sentence appeal, there was a ground that he did not obtain an appropriate diminution of his sentence because he has been, throughout, in protective custody. Secondly, he argued that there had been "material errors, fabrications and misunderstandings" during the sentence proceedings which would entitle him to succeed on the "manifestly excessive" ground.

1. In our opinion, however, each of these matters plainly demonstrates that, while there may be an argument that can be presented, it could not be said that the ground is by any means certain or likely to succeed. For example, it appears that the sentencing court was aware (through the evidence of a character witness) that the applicant had been placed in protective custody at his own request. The evidence before her Honour had indicated that this was so because of the applicant's fears that he might need protection on general grounds from other inmates. Secondly, there was no evidence before the sentencing court as to the conditions under which any such protective custody might be served. Thirdly, there was no evidence as to whether that process would continue and, if so, for how long. Fourthly, it does not seem any submissions were made by experienced counsel then appearing for the applicant that such a matter should be taken into account on the sentencing exercise. Fifthly, there was no evidence that he required protection for any reason other than his concerns relating to his safety in the environment in which he found himself.

1. I should stress that this court is not sitting as the court hearing the appeal against sentence. We do not have the advantage that the ultimate Appeal Court will have of fully developed submissions and materials in support of those submissions. But clearly, by way of example, it may be said that the particular ground under discussion, although perhaps arguable, cannot be said to have any certainty of success.

1. The same point may be made in relation to the ground relying upon material errors, etc. Two examples will suffice. The applicant argued that, during the sentencing hearing, the prosecutor had made reference to the fact that in his first bail hearing, the applicant had claimed to be a "protected witness". The prosecutor then queried a character witness called on sentencing to show that this was not correct. To show that he was indeed a "protected witness", the applicant in this present hearing pointed (in the bundles of material before us) to a letter from the Assistant Commissioner of the Police Integrity Commission dated 19 th March 2008 that demonstrated, he claimed, his status as a protected witness.

1. The cross-examination to which the applicant referred elicited from the character witness (Senator Williams) the response that the senator had spoken to Mr Vic Russel of the Police Integrity Commission, and had been told that, while the applicant could apply to be placed under police protection, he was not in fact a protected witness.

1. Our conclusion from the material placed before us is that the applicant is under a complete misapprehension. The letter from the Police Integrity Commission of 19 th March 2008 does not confirm that he is a protected witness under any program maintained by the Commission. It does no more than recite the fact that he had given information to the Commission, pursuant to his obligation to do so, following service of a notice upon him, under s 26 of the Police Integrity Commission Act 1996 . A person who complies with such a requirement is "protected from liability". The letter refers to s 137 of the legislation. This gives a person who provides evidence or information to the Commission "the same protection as a witness in proceedings in the Supreme Court". Secondly, it does not seem that the particular matter elicited by the prosecutor in cross-examination played any part in any submission to the sentencing judge. Thirdly, it does not appear that the sentencing judge herself took the matter into account as any part of the sentencing exercise.

1. Once again, it can be safely said that this ground of appeal would provide no certain prospect of success on the sentencing appeal.

1. The second example mentioned by the applicant may be dealt with briefly. He maintained that, at one point, the trial advocate had cast doubt upon the fact that the applicant had completed a Master of Business Administration's course. It may be that the prosecutor was inaccurate in the precise comment he made, but this appears to have played no part in the sentencing exercise. If there were an error, it was not corrected by the applicant's counsel, and the trial judge made no adverse mention of the matter. Indeed, in her remarks on sentence, she appears to have accepted the applicant's qualifications. It appeared in every aspect of the trial to be a matter of little, if any, consequence.

1. We turn then to the new "certain to win points" relied upon by the applicant in the conviction appeal.

1. The first relates to a submission made by the prosecutor at trial. In his closing address, the prosecutor said that the applicant had told a number of lies. These lies were relied upon as credibility lies. The trial judge gave a specific direction that they could only be used in that way. One of the lies was said to be in connection with whether the applicant was a director of companies which had charges over his principal business company. The applicant accused the prosecutor of "fabricating the evidence". We have read the prosecutor's submission to the jury. We would not, however, be satisfied that the submission can be categorised in the way the applicant seeks to do. Moreover, experienced trial counsel for the applicant took no objection to this passage and no request was made to the trial judge in connection with it. The applicant went so far as to call this "a perversion of the course of justice". We would not regard this matter as providing any certain prospects of success. The submission made by the prosecutor would have been unlikely to have had any impact on the critical issues at trial.

1. Next, the applicant referred to the use of hearsay evidence in his trial. It seems that the victim of the assault gave evidence at trial that she had a conversation with a computer technician when her stolen laptop was returned. Without objection, she gave evidence of what had been said to her by the technician. The applicant argues that this hearsay conversation was used against him to prove an element of the robbery offence, namely "an intention to permanently deprive". He said that this was the only evidence to support that element. A fair reading of the submissions made at the conclusion of the trial, and the directions given by the judge, show this not to be so. Substantial reliance was placed by the Crown upon the fact that the applicant told the police that the equipment was his, and that he proposed to sell it on eBay to recover the monies he thought were owing to him. In any event, there was no objection to the evidence from the victim, including the hearsay statements. Once again, this ground could not, by any means, be said to raise certain prospects of success.

1. Additionally on a related point, the applicant said that he would seek to adduce further evidence on his appeal to demonstrate that he was not within the Lane Cove district at the time the events described by the technician took place. He referred to this as "alibi evidence". An application to call fresh evidence is not bound to succeed, even assuming the evidence has some relevance to the issues at trial.

1. The next illustration given by the applicant related to the fact that, at some stage during the trial, his counsel (in the absence of the jury) raised with the judge the prospect of a favourable character direction. It seems the discussion was prompted by the fact that the prosecutor suggested that the accused had convictions of dishonesty, although these apparently related to events when he had been a teenager. The applicant's complaint is that, as these were "spent" convictions within the meaning of s 579 of the Crimes Act 1900 , he should not have been precluded from raising his good character before the jury. Now, whether he was precluded from doing that, or whether it was simply his counsel's tactical decision to proceed, does not clearly appear from the material that has been filed. At least, it may be said it does not satisfactorily appear from that material. There does not appear to be any ruling on the matters by the trial judge, nor was she, in the end, requested to give such a ruling. The applicant submits that the circumstances of this ground constituted a miscarriage of justice.

1. Now, it may be that an arguable point arises, but, once again, we could not be satisfied that it has a particularly high level of certainty of success.

1. Because of the need to give a judgment promptly in this matter, the court has not attempted to analyse each and every ground of appeal sought to be relied on by the applicant. Nor have we endeavoured to analyse the lengthy submissions that underpin each of the grounds. Many of them relate to allegations concerning the conduct of the applicant's own counsel at trial. Some related to the conduct of his new counsel during the sentencing hearing. Others relate to the conduct of the prosecutor. A number of grounds accuse the trial judge of unfairness and making inappropriate rulings. However, a reading of the trial and sentencing transcripts does not suggest that there are certain prospects of success, by any means, in any of either the old or new grounds of appeal. There were very few objections taken during the trial to the evidence given by Crown witnesses. The written directions by the trial judge were settled after discussion with counsel. There were no applications for any re-directions by the trial judge. Police statements were read to the jury by consent, and there was no suggestion at trial of duress in relation to the ERISP interview which was, by agreement, played to the jury. All of these matters, and many more not raised at trial, it will be seen, have now been elevated into grounds of appeal against conviction. As has been said on numerous occasions throughout these reasons, it may be that some arguments can be raised in connection with some of the grounds, although we should not be taken to bind the court that hears the appeal in any of those regards. Many of the complaints, however, seem dubious in the extreme. Whatever be their merit, it cannot possibly be said that there is anything approaching a high prospect of success in relation to any of the grounds.

1. The applicant's written submissions rely on a number of other matters. These include the fact that the custodial component of the sentence will shortly be completed; that a successful appeal will give him a hollow victory in those circumstances, and that he has experienced difficulties in preparing for his appeal during his time in custody. There is also a complaint that the appeal will not, in the normal course, be heard for a number of months.

1. As to this last matter, it is clear that the earlier vacations of hearing date have been at the instigation of the applicant himself. Secondly, his release from custody in a little over two weeks' time will give him ample opportunity and facility to prepare his appeal, including obtaining any further evidence, should fresh evidence be sought to be tendered on the appeal. We have given consideration to these matters and to others raised by the applicant but none of them, in our view, constitutes special or exceptional circumstances.

1. For the reasons given, there has been nothing advanced in this review application that would warrant the court finding that there are special or exceptional circumstances justifying a grant of bail.

1. The order of the court is:

(1)   Application for review is dismissed;

(2)   Bail is refused.

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Decision last updated: 06 April 2011