R v Fabian Michael - [2013] NSWSC 854

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fabian Michael [2013] NSWSC 854
Hearing dates: 20, 26 June 2013
Decision date: 26 June 2013
Jurisdiction: Common Law - Criminal
Before: Slattery J
Decision:
Conditional Bail Granted

Catchwords: CRIMINAL LAW - bail application - notice of intention to appeal against conviction filed - but appeal not yet filed - whether a single judge of the Supreme Court has power to grant bail in those circumstances - whether Bail Act s 30AA "special or exceptional circumstances" exist - Applicant has serious medical and psychological conditions -argument in the legal opinion on the merits of appeal well structured and compelling.
Legislation Cited: Bail Act 1978 s 4, s 28, s 30, s 30AA
Crimes Act 1900 s 319
Criminal Appeal Act 1912 s 10(2)(b)
Cases Cited: R v Joseph Antoun [2005] NSWCCA 270
R v Wilson (1994) 34 NSWLR 1
DPP v Cassaniti [2006] NSWCCA 335
Category: Principal judgment
Parties: Fabian Michael (Applicant)
Representation: Counsel:
Director of Public Prosecutions
R. Sutherland SC (Applicant)
P. Kintominas (Applicant)
Solicitors:

File Number(s): 2011/332412

EX TEMPORE Judgment

Fabian Michael is an Applicant for bail today. His application came before me last Thursday, 20 June 2013 and was adjourned to today, so I could consider all the materials advanced on his behalf.

On 21 March 2013 the Applicant filed a Notice of Intention to Appeal against his conviction of one count of doing an act intending to pervert the course of justice contrary to Crimes Act 1900 s 319. The facts alleged and established by the Applicant's conviction were that the Applicant advised a person involved in an incident being investigated by police to give a false version of events to police. The Applicant was tried before Judge Payne and a jury in the District Court at Parramatta commencing on 21 August 2012. The jury returned its verdict of guilty on 29 August 2012. After that verdict the Applicant Judge Payne granted bail to the Applicant until his sentence hearing. He was finally sentenced on 21 March 2013 to imprisonment for two years and three months with a non-parole period of fifteen months. The Applicant has been in prison ever since.

An appeal under the Criminal Appeal Act 1912 has not yet been filed. So the Applicant comes before the Court in circumstances where a little over three months, or 20%, of his non-parole period has been served, a non-parole period which will expire in June 2014. Senior and junior counsel for the Applicant, Mr Sutherland SC and Mr Kintominas indicate that were the appeal to be filed presently, that even with expedition, the Applicant's appeal against conviction could probably not be heard by the Court of Criminal Appeal until near the end of this year, if not early next year.

The first question is the power of a single judge sitting in the bails list to grant bail in these circumstances. In a judgment such as this it is not necessary to set…

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 R v Fabian Michael

Details

AGLC: R v Fabian Michael [2013] NSWSC 854
Case: [2013] NSWSC 854
Decision Date: 26 June 2013

CaseChat Overview and Summary

In the case of R v Fabian Michael, the defendant applied for bail during a period when a notice of intention to appeal against his conviction had been lodged, but the formal appeal had not yet been filed. The matter was heard in the Supreme Court, which was tasked with determining whether a single judge had the authority to grant bail under these specific circumstances. The central legal issues revolved around the interpretation of the Bail Act, particularly Section 30AA, which pertains to "special or exceptional circumstances" that might warrant bail.

The court was required to consider whether the conditions outlined in the Bail Act allowed for bail to be granted when an appeal was pending only as a notice of intention. Additionally, the court had to assess if the applicant's serious medical and psychological conditions constituted "special or exceptional circumstances." The defence argued that the applicant's compelling and well-structured legal opinion on the merits of the appeal, combined with his medical conditions, warranted granting bail. The court meticulously examined the statutory provisions and relevant case law to determine whether the applicant's situation fell within the purview of the "special or exceptional circumstances" as defined by the Bail Act.

The court concluded that the single judge did have the power to grant bail even when an appeal was only in the notice stage, provided the applicant met the criteria under Section 30AA. Given the compelling evidence of the applicant's serious medical and psychological conditions, and the well-structured argument regarding the potential success of the appeal, the court found that these factors did indeed constitute "special or exceptional circumstances." Consequently, the application for bail was successful.

Orders