R v Jacobs - [2008] NSWSC 417

CITATION: R v Gregory William JACOBS [2008] NSWSC 417

HEARING DATE(S): 29 April 2008

JUDGMENT DATE :
30 April 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION: Conditional bail granted.

CATCHWORDS: CRIMINAL LAW - bail - murder - accused partial paraplegic - medical needs - meaning of "exceptional circumstances" - bail granted.

LEGISLATION CITED: Bail Act 1978

CATEGORY: Separate question

CASES CITED: Commonwealth DPP v Germakian [2006] NSWCA 275
R v Daron John Wright (unreported, 7 June 2005)
R v PDR (unreported, 1 August 2007)
R v Young (2006) NSWSC 1499

PARTIES: Regina (Crown)
Gregory William JACOBS (Applicant)

FILE NUMBER(S): SC 2008/5196

COUNSEL: W Dawe QC (Applicant)

SOLICITORS: Director of Public Prosecutions (Crown)
Greg Walsh & Co Solicitors (Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

30 April 2008

2008/5196 R v Gregory William JACOBS

EX TEMPORE JUDGMENT - Application for bail
VIDEO LINK TO PARKLEA CORRECTIONAL CENTRE

1 HIS HONOUR: Gregory William Jacobs seeks bail. He has been charged with murdering his wife by strangulation and has pleaded not guilty by reason of self defence and/or mitigates the culpability of the killing by reason of provocation.

2 Mr Jacobs is a partial paraplegic. He suffered an accident while waterskiing in 1982, which, after some rehabilitation, was aggravated by a motor vehicle accident in 1997. He can walk but only up to approximately 50 metres and, even then, with some difficulty.

3 The issue before the Court is whether, in terms of s 9C of the Bail Act 1978, the Court is satisfied that “exceptional circumstances” justify the grant of bail. If not the Court is required to refuse bail.

4 It must be noted that a bail application is not a time at which guilt or innocence is decided. I have said on occasion, as have other judges, that in one sense the Crown case is at its strongest in a bail application. However, the common law and the democratic system under which we live presumes innocence until guilt is proven beyond a reasonable doubt. There is, therefore, generally a presumption in favour of the liberty of the subject.

5 There are exceptions to that presumption based philosophically on the threat to the community posed by persons charged with serious offences.

6 Murder is pre-eminently such an offence and the legislature requires exceptional circumstances justifying bail in order for bail to be granted.

7 What then are the exceptional circumstances? Mr Jacobs relies on the comments of Johnson J in R v Young (2006) NSWSC 1499. His Honour at paras 18, 19 and 20 discussed the concept of exceptional circumstances and said:

“[18] The concept of exceptional circumstances is, of course, not defined in the Bail Act 1978. It is a term that is used, from time to time, in statutes to place limits upon the exercise of various powers: cf R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402 at paragraph 12. It is helpful, however,…

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 Jacobs

Details

AGLC: R v Gregory William Jacobs [2008] NSWSC 417
Case: [2008] NSWSC 417
Decision Date: 30 April 2008

CaseChat Overview and Summary

The case of R v Jacobs involved the defendant, Jacobs, who was charged with the murder of his wife. The dispute before the court was whether Jacobs, who was a partial paraplegic with significant medical needs, qualified for bail under the exceptional circumstances exception to the presumption against bail for serious indictable offences. The case was heard in the Supreme Court of Victoria. The central legal issue was the interpretation of the term "exceptional circumstances" within the context of bail applications for individuals with severe medical conditions. The court needed to determine if Jacobs' medical needs and circumstances constituted exceptional circumstances warranting bail, despite the serious nature of the charge against him.

The court considered the broader context of bail laws and the principle of proportionality in granting bail. It recognised that the term "exceptional circumstances" was not limited to purely medical conditions but could encompass a range of factors that might justify bail. The court examined Jacobs' medical records and the nature of his disability, noting the significant difficulties he faced in accessing medical care and the potential impact of incarceration on his health. The court concluded that the combination of his medical needs and the potential for pre-trial detention to exacerbate his condition did indeed constitute exceptional circumstances. This reasoning was grounded in the need to balance the seriousness of the offence with the potential harm to the accused if bail was not granted.

As a result of the court's reasoning, Jacobs was granted bail. The court recognised that denying bail would likely cause him greater harm than would be caused by his release. The decision highlighted the importance of considering individual circumstances when applying bail laws, particularly for defendants with significant medical needs. The court's decision was thus a significant one in the context of bail law, emphasising the need for a flexible and humane approach to the bail process.

Orders