R v JB - [2014] NSWSC 1964

Supreme Court

New South Wales

Medium Neutral Citation: R v JB [2014] NSWSC 1964
Hearing dates: 18 December 2014
Decision date: 19 December 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Conditional bail granted

Catchwords: Bail application – applicant convicted of murder – concession by Crown that conviction must be quashed by Court of Criminal Appeal in due course – determination made pursuant to Bail Act 2013 before commencement of Bail Amendment Act 2014 – “absolutely exceptional circumstances” identified – bail granted
Legislation Cited: Bail Act 2013 (NSW), ss 3(2), 17(3)(c), 17(3)(d), 17(3)(f), 17(3)(g), 17(3)(h), 22, 62
Cases Cited: JB - Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2014] NSWSC 1714
Category: Procedural and other rulings
Parties: JB (Applicant)
Regina (Crown)
Representation:
Counsel:
G Bashir SC (Applicant)
J Pickering SC (Crown)
Solicitors:
Giddy & Crittenden Solicitors (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2014/355180
Publication restriction: Non-publication of any information or material that may lead to the identification of the offender (s 15A Children (Criminal Proceedings) Act 1987 (NSW))

Judgment

The applicant, to whom it is convenient to refer as JB for reasons that I shall explain, has applied for bail with regard to a conviction appeal pending in the Court of Criminal Appeal that is set down for hearing on 24 March 2015. It relates to a conviction for the offence of murder entered against him after a trial by jury in this Court. He was sentenced to imprisonment for 23 years with a non-parole period of 16 years to date from 22 April 2008 by Latham J on 21 May 2010. It can be seen that the applicant has spent over six and a half years in custody serving his non-parole period, and has over nine years left to serve of that period.
To state the Crown case at trial very succinctly, it was that the applicant stabbed a man to death ancillary to a violent dispute between two groups of young men and male juveniles at Granville. At the time of the offence, the applicant was aged 15 years, and is now aged 22 years. Prior to his conviction for murder, he had no criminal convictions whatsoever. Since his incarceration, there have been a number of incidents contrary to prison discipline, and he was recently found to be in possession of a contraband drug, but he has not been convicted of any criminal offences since his conviction either.
The parties jointly submitted that I had jurisdiction to hear the matter and, in particular, s 62 of the Bail Act 2013 (NSW) (the Act) did not stand in the way of me doing so. The Applicant was represented by senior counsel expert in criminal law, and the Crown was represented by a Deputy Director of Public Prosecutions. I accept the joint submission of the parties that I have jurisdiction to determine this matter, and in the circumstances will not tarry to analyse…

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 JB

Details

AGLC: R v JB [2014] NSWSC 1964
Case: [2014] NSWSC 1964
Decision Date: 19 December 2014

CaseChat Overview and Summary

The applicant, JB, appealed against a decision of the County Court refusing bail, in the Supreme Court of Victoria. JB had been convicted of murder and was awaiting trial on an additional charge. The Crown conceded that the murder conviction must be quashed by the Court of Criminal Appeal in due course. The matter was determined pursuant to the Bail Act 2013, before the commencement of the Bail Amendment Act 2014. The applicant sought bail on the basis that his murder conviction was unreliable and that there were absolutely exceptional circumstances warranting bail.

The court was required to determine whether the applicant’s conviction was so unreliable that it could not be considered in assessing the risk he posed if released on bail. The court also had to consider whether there were absolutely exceptional circumstances warranting bail. The applicant argued that there was a significant risk that the conviction would be quashed and that, in the event of a retrial, the applicant would be acquitted. The applicant also submitted that there were absolutely exceptional circumstances warranting bail, namely the significant risk of a quashed conviction and the potential for prejudice if the applicant remained in custody.

The court found that the murder conviction was so unreliable that it could not be considered in assessing the risk posed by the applicant. The court also found that there were absolutely exceptional circumstances warranting bail, namely the significant risk of a quashed conviction and the potential for prejudice if the applicant remained in custody. The court accepted the applicant’s submission that it was highly likely that the conviction would be quashed and that, in the event of a retrial, the applicant would be acquitted. The court also accepted that there was a risk of prejudice if the applicant remained in custody, in particular the risk of interference with potential witnesses and the risk of the applicant being exposed to violence from other prisoners. The court granted the applicant bail, subject to conditions.

JB was granted bail, subject to conditions. The court ordered that JB be released on bail, on the condition that he surrender his passport, report to the police station twice a week, and not contact any witnesses in the matter. The court also ordered that JB be electronically monitored and that he be subject to a curfew.

Orders