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

1. 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.

2. 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.

3. 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 the question further.

4. Furthermore, senior counsel for the Crown accepted that the high hurdle set out in s 22 of the Act had been made out; in other words, special or exceptional circumstances have been established by the applicant in this case. That concession was made in the following circumstances.

5. Many years after the conviction had been entered, and after the applicant had exhausted all rights of appeal against conviction, material came to light that strongly suggests that an important Crown witness who gave evidence in the trial of a confession by the applicant had not been candid about his other roles in the criminal justice system. There is also material to suggest that certain police officers had not acted with due candour either. Finally, it has recently become apparent that the solicitor who appeared for the applicant at the trial could very well have been subject to a conflict of interest.

6. Separately, it can be seen from the judgment of R A Hulme J of 20 November 2014 granting a referral to the Court of Criminal Appeal, with the consent of the Attorney General of New South Wales, that his Honour regarded the circumstances of the matter as compellingly calling for expedition: see JB - Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2014] NSWSC 1714.

7. In the circumstances, before me senior counsel for the Crown described aspects of what had occurred at the trial as a “travesty”. He also made it clear that he would be personally appearing for the Crown in the Court of Criminal Appeal. He also assured me that he himself would concede that the appeal against conviction for murder should be allowed in the above circumstances. It seems that the real dispute in the Court of Criminal Appeal will not be whether the conviction should be quashed, but rather whether there should be an order for a retrial, as the Crown will certainly submit, or whether there should be a verdict of acquittal, as the applicant may submit.

8. In those circumstances, senior counsel for the Crown accepted that I should regard this application, in a practical sense, as being an application by a young man who is charged with murder, as opposed to having been convicted of it, on the simple basis that it is inevitable that that conviction will be quashed in a few months.

9. I accept the concession of the Crown that the test in s 22 of the Act is made out; separately, I would have assessed that as having been the case in any event. I also consider it appropriate to approach this matter as if the applicant were charged with, and not convicted of, murder.

10. Although at my request substantial time was expended at the hearing analysing the strength of the Crown case, once one subtracted from it the impugned evidence (a course with which senior counsel for the Crown agreed for the purposes of the application), in truth the parties were not far apart in their characterisations of it. Senior counsel for the applicant described the Crown case as weak. Senior counsel for the Crown described it as not overly strong.

11. It needs to be understood that the impugned evidence was by no means the only evidence against the applicant. There was evidence both direct and circumstantial from a number of other sources that implicated the applicant as the stabber. Some parts of it were stronger than others parts, and some of it may be able to be indirectly impugned by way of the evidence now under attack. It will also be appreciated that the parties each submitted that I should provide this judgment as a matter of urgency and before the end of the Law Term today, and I am doing so after the matter was heard yesterday afternoon. That means that I have been unable to engage in a detailed examination of the strength or otherwise of the Crown case above and beyond what I was able to do at the hearing with the assistance of counsel. But with the benefit of that assistance I consider that it is correct to characterise the Crown case as not overly strong, rather than weak.

12. The proposal put forward on behalf of the applicant is that, if granted bail, the applicant would live at the family home of his father’s cousin, who I accept is to be equated with being an uncle in Sudanese culture, which is the background of both the applicant and his extended family. That gentleman, Mr Jok, provided a detailed affidavit that became Exhibit 1 on the bail application. It is an impressive document. Mr Jok is 35 years of age. He came to Australia in 2006, and became an Australian citizen in 2010. From 2006 to 2011, he worked with the New South Wales Department of Education and Training. Since 2011, he has been studying a combined economics and law degree full time. He lives at an address in the Western suburbs of Sydney, with his wife and four children. He has lived there since 2006. He has no criminal record.

13. Mr Jok has explained that he thinks highly of the applicant despite his conviction and incarceration, and would do his utmost to support his good behaviour if granted bail. He has offered to provide settled accommodation to the applicant, and has promised that he would do his best to ensure that the applicant complied with any bail conditions.

14. As well as that, the sister of the applicant, who also has lived in Australia since 2010 but in Western Australia, has offered to deposit $5000 cash as surety for her brother. I accept that that is a very large amount of money to that lady. She has had regular contact with the applicant by telephone. She will also provide a character acknowledgment with regard to him.

15. In discussion between Bench and Bar table, senior counsel for the applicant was content for the application to be understood as being that the applicant would be at home without exception overnight, and would only leave home during the day if he were in the direct presence of his uncle. She submitted that any unacceptable risk that I were to identify could be sufficiently mitigated by what is proposed.

16. She also made the powerful submission that, if it be the case that the applicant has been denied a fair trial according to law, in fact he has been in custody since 25 April 2008 – that is, for over six and a half years – waiting for his entitlement to such a trial to be fulfilled.

17. The Deputy Director opposed bail. He emphasised that - as I have accepted - the Crown case should not be characterised as weak with regard to the most serious offence known to law. He also invited my attention to the proposition that the behaviour of the applicant in custody has been far from perfect, especially in his early years of detention. His alternative position was that if bail were to be granted, it must be on the strictest possible terms.

18. There is force in what senior counsel for the applicant has said. On the other hand, a number of matters argue strongly against bail being granted.

19. First, the matter will be before the Court of Criminal Appeal in a little over three months: s 17(3)(g) of the Act.

20. Secondly, I infer that, if a retrial is ordered, it will be fast-tracked within the lists of the Supreme Court.

21. Thirdly, I am concerned about the degree of practical and daily supervision that the uncle and his wife will be able to provide the applicant, especially since the uncle is studying full-time and the aunt part time.

22. Fourthly, it is clear from his custodial record that the applicant has been in a maximum security jail for well over three years. He has been cut off from the community for over six and a half years. I am concerned about releasing a young man suddenly from a maximum security setting into the community in circumstances where, even if I were to impose a very rigid curfew, he may not be able to be very closely supervised.

23. Fifthly, I have already indicated that I regard the case that the applicant has inflicted fatal violence on a fellow human being as not being weak.

24. Sixthly, the applicant is well aware that, if convicted of murder again, he will face many further years imprisonment by way of a non-parole period that is identical to, or perhaps somewhat less than, that imposed by Latham J: s 17(3)(h). I think that that could provide a powerful motive to abscond.

25. There are a number of powerful countervailing factors.

26. First, the Crown case is not overly strong: s 17(3)(c) of the Act.

27. Secondly, the applicant has never been convicted of any other offence of violence, whether that be before or after the night of the murder: s 17(3)(d) of the Act.

28. Thirdly, because of his complete absence of a criminal record, he has never breached bail, or not been before a court when required to be, or convicted of failing to appear. Nor, of course, has he ever breached a court order in the form of an apprehended violence order, or a bond, or a suspended sentence, or probation, or parole: s 17(3)(f) of the Act.

29. Fourthly, the evidence establishes to my satisfaction that the applicant enjoys a sound measure of community support.

30. Fifthly, it may take many months for the question of the guilt of the applicant to be fully determined: s 17(3)(g) of the Act.

31. Sixthly, although it is true that my understanding of the intricacies of the Crown case will almost certainly not be as deep as that which the Court of Criminal Appeal will enjoy in a few months, nevertheless with the assistance of counsel I have been able to make my own determination in that regard.

32. Seventhly, the Act explicitly commands me to bear firmly in mind the presumption of innocence: s 3(2) of the Act. As I have said, the Crown is content, in the extraordinary circumstances of this matter, to regard the murder conviction as in truth having no more force than a murder charge.

33. Eighthly, as I have indicated, I think that the submission of senior counsel for the applicant about the fact that in effect he has been bail refused for over six and a half years waiting for his trial according to law is a compelling one.

34. I took time overnight to reflect on the matter, and I can assure each party that I have given the matter very earnest consideration. I regard the matter as right on the cusp. There is no doubt in my mind that, if bail were to be granted unconditionally, there would be an unacceptable risk of a serious offence of violence and of the applicant failing to appear. Of course, there is not the slightest question of unconditional bail.

35. I am also fully aware of the enormity of a judicial officer granting bail to any person who has been convicted of murder. It could surely only be done in absolutely exceptional circumstances.

36. Ultimately, in light of the position of the parties, and the absolutely extraordinary circumstances that I consider pertain in this case, I am prepared to take the absolutely extraordinary step of granting bail to the applicant.

37. That will only be done on the strictest possible terms. If those conditions are restrictive, invasive, and logistically difficult for the applicant so be it. And the applicant and those who love and support him need to understand that he should expect that, if there is the slightest breach, he will be arrested and immediately returned to custody.

FOR BAIL CONDITIONS SEE COURT FILE.

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Decision last updated: 10 May 2016