R v Hall - [2023] NSWDC 399

District Court

New South Wales

Medium Neutral Citation: R v Hall [2023] NSWDC 399
Hearing dates: 8 September 2023; 15 September 2023
Date of orders: 15 September 2023
Decision date: 15 September 2023
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The application is refused.

Catchwords:
Detention application – consideration of section 22B Bail Act 2013 – realistically inevitable that offender will be sentenced to imprisonment – meaning of “special” or “exceptional” circumstances – onus on respondent to show “special” or “exceptional” circumstances – standard of proof – detention application refused

Legislation Cited:
Bail Act 2013
Crimes Act 1900

Cases Cited:
Dawkins v R [2018] NSWCCA 278
DPP v Van Gestel [2022] NSWCCA 171
Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8
Hogan v R [2008] NSWCCA 150
R v Naizmand [2016] NSWSC 836
R v NK [2016] NSWSC 498
Wakeling v R [2016] NSWCCA 33

Category: Principal judgment
Parties: Applicant: Office of the Director of Public Prosecutions
Respondent: Mr Hall
Representation:
Counsel:
Ms Mendes (Respondent)
Solicitors:
Ms Coleman and Ms Dawson (ODPP)
Mr Harrison (Respondent)

File Number(s): 2022/00314997
Publication restriction: Nil

JUDGMENT

INTRODUCTION

Bradley Hall, the respondent, was committed for sentence from the Local Court to the District Court on two charges, namely:

Sexual assault contrary to s 66C of the Crimes Act. The maximum penalty is 16 years' imprisonment. The standard non-parole period is 7 years’ imprisonment.

Sexual intercourse without consent contrary to s 61I of the Crimes Act. The maximum penalty is 14 years' imprisonment.

His sentence hearing is to take place on Thursday, 9 November 2023. On Friday, 8 September 2023 through his counsel Ms Mendes, Public Defender, he confirmed his pleas. The Director of Public Prosecutions made a detention application pursuant to s 22B(1)(b) of the Bail Act 2013. That application was adjourned to Friday, 15 September 2023. Section 22B(1)(b) provides:

"During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a Court –
(a) …
(b) on a detention application made in relation to the accused person - must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision."

Subsection (5) informs that a conviction, "also includes a plea of guilty." Section 50 of the Act empowers the prosecutor to bring an application for revocation of bail which is a "detention application". Ms Mendes relies upon the affidavit of Mr Rohan Harrison, her instructing solicitor, affirmed on 7 September 2023. It is the Crown's position that although sympathetic to the personal circumstances of the respondent, Corrections NSW would be able to undertake sufficient measures to ensure the respondent's safety within reason. The Crown submits that special or exceptional circumstances have not been shown and accordingly the application should be granted.

THE AFFIDAVIT

Mr Harrison first met Mr Hall in a professional capacity in June 2018. He has had carriage of these matters since October 2022. Following his arrest, Mr Hall was…

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 Hall

Details

AGLC: R v Hall [2023] NSWDC 399
Case: [2023] NSWDC 399
Decision Date: 15 September 2023

CaseChat Overview and Summary

The case of R v Hall involved a detention application before a court, which examined the eligibility of the respondent for bail under section 22B of the Bail Act 2013. The respondent, who faced charges with a likelihood of imprisonment, sought to be released on bail pending the outcome of their trial. The court was tasked with determining whether the respondent could meet the stringent criteria outlined in the Bail Act, which required consideration of whether there were "special" or "exceptional" circumstances that warranted continued detention.

The primary legal issues the court needed to address were the interpretation of "special" or "exceptional" circumstances, the onus of proof on the respondent to demonstrate such circumstances, and the standard of proof required for a detention application under section 22B. The court had to discern the precise meaning of these terms and assess whether the respondent had adequately discharged their burden of proof. Additionally, the court examined the standard of proof necessary to support a detention application, ensuring that the respondent's rights were balanced against the interests of justice.

The court found that the respondent had not met the burden of proof necessary to establish "special" or "exceptional" circumstances. The court interpreted these terms narrowly, requiring factors that are not merely unusual or serious but must be truly exceptional. The respondent's arguments did not sufficiently demonstrate such circumstances, and the evidence presented fell short of the required standard. Consequently, the application for detention was refused, and the respondent was granted bail. The court emphasised the importance of the onus of proof and the high threshold that must be met to justify continued detention in cases where imprisonment is realistically inevitable.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hall [2023] NSWDC 399
Hearing dates:	8 September 2023; 15 September 2023
Date of orders:	15 September 2023
Decision date:	15 September 2023
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The application is refused.
Catchwords:	Detention application – consideration of section 22B Bail Act 2013 – realistically inevitable that offender will be sentenced to imprisonment – meaning of “special” or “exceptional” circumstances – onus on respondent to show “special” or “exceptional” circumstances – standard of proof – detention application refused
Legislation Cited:	Bail Act 2013 Crimes Act 1900
Cases Cited:	Dawkins v R [2018] NSWCCA 278 DPP v Van Gestel [2022] NSWCCA 171 Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8 Hogan v R [2008] NSWCCA 150 R v Naizmand [2016] NSWSC 836 R v NK [2016] NSWSC 498 Wakeling v R [2016] NSWCCA 33
Category:	Principal judgment
Parties:	Applicant: Office of the Director of Public Prosecutions Respondent: Mr Hall
Representation:	Counsel: Ms Mendes (Respondent) Solicitors: Ms Coleman and Ms Dawson (ODPP) Mr Harrison (Respondent)
File Number(s):	2022/00314997
Publication restriction:	Nil