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

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.

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…

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.

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Details

Case: [2011] NSWCCA 83
Decision Date: 25 February 2011

CaseChat Overview and Summary

In the case of Owen James Salmon versus Regina, the applicant, Salmon, sought a review of a decision by a single judge denying his application for bail pending appeal of his conviction. The matter was heard in the High Court of Australia. Salmon's appeal against his conviction for sexual offences was pending, and he applied for bail under the common law, seeking release on bail pending the determination of that appeal.

The central legal issue before the court was whether the single judge's decision to deny bail to Salmon was correct, given the principles established in relevant case law. Specifically, the court had to consider whether Salmon had demonstrated special or exceptional circumstances that warranted a departure from the usual rule that bail should not be granted to an applicant who has been convicted and is awaiting the outcome of an appeal. The court also needed to examine the balance between the interests of the community and Salmon's right to liberty.

The court held that the single judge's decision was correct and that Salmon had not demonstrated any special or exceptional circumstances that warranted a reconsideration of the bail refusal. The court found that the principles governing bail applications following conviction and pending appeal required a rigorous assessment of the risk of reoffending and the potential impact on the community. The court concluded that the single judge had properly exercised his discretion and that there were no grounds for the applicant to succeed in his review application. Consequently, the court dismissed Salmon's application for a review of the single judge's decision.

Orders