R v JC - [2023] NSWSC 111

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JC [2023] NSWSC 111
Hearing dates: 14 February 2023
Date of orders: 14 February 2023
Decision date: 14 February 2023
Jurisdiction: Common Law - Criminal
Before: Cavanagh J
Decision:
Bail granted with conditions imposed.

Catchwords:
CRIME — Bail — Release application – where appeal pending in the Court of Criminal Appeal – “special or exceptional circumstances” – matters to be taken into account – fresh evidence – whether appeal is reasonably arguable

Legislation Cited:
Bail Act 2013 (NSW), ss 16A, 18, 22
Crimes Act 1900 (NSW), ss 61N, 61O, 91H
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), ss 128, 165
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
El-Hilli and Melville v R [2015] NSWCCA 146
Liberato v The Queen (1985) 159 CLR 507
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v George Patrick O’Neill, Court of Criminal Appeal (NSW), Mathews J, 13 May 1992, unrep
R v Murray (1987) 11 NSWLR 12
R v Rodriguez [2020] NSWSC 1660

Texts Cited:
None

Category: Principal judgment
Parties: JC (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
G Lewer with C Akthar (Applicant)
A Robertson (Respondent)
Solicitors:
T Regan, Criminal Defence Lawyers Australia (Applicant)
NSW Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2023/00019514
Publication restriction: None

REVISED EX TEMPORE JUDGMENT

The applicant applies for bail. He has been in custody since 18 November 2022, at which time he was sentenced following his conviction by his Honour Judge Arnott SC of the District Court on 29 October 2021, in respect of two offences, being count two, indecent assault for a person under 16 years contrary to s 61N(2) of the Crimes Act 1900 (NSW) (‘Crimes Act’); and count three, possess child abuse material contrary to 91H(2) of the Crimes Act.
The applicant was tried by Judge alone trial between 6 October and 20 October 2021 on indictment for three offences. Count 1 was commit act of indecency towards a child under ten years contrary to s 61O of the Crimes Act. At the close of the Crown case, on 18 October 2021, the trial judge found the applicant not guilty in respect of count 1 by a directed verdict.
Having been convicted of counts 2 and 3, the applicant came before his Honour on 18 November 2022 for sentence. In respect of count 2, the applicant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years and 7 months, commencing 23 June 2022. In respect of count 3, the applicant was sentenced to a fixed term of 6 months imprisonment commencing 23 June 2022, an expiry on 22 January 2022 being wholly concurrent with the sentence for count 2. The applicant will be eligible for release to parole on 22 January 2025.
The applicant having been convicted of these two offences remains in custody.…

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 JC

Details

AGLC: R v JC [2023] NSWSC 111
Case: [2023] NSWSC 111
Decision Date: 14 February 2023

CaseChat Overview and Summary

The case of R v JC involved the defendant, JC, who was applying for bail while an appeal was pending in the Court of Criminal Appeal. JC was seeking release on bail pending the outcome of this appeal. The application was heard in the Supreme Court, which had to determine whether JC's appeal was reasonably arguable and whether there were special or exceptional circumstances warranting bail.

The primary legal issue before the court was whether JC's appeal was reasonably arguable, a crucial factor in deciding bail. The court also considered whether there were special or exceptional circumstances that might justify bail. This involved an assessment of the evidence presented, including any fresh evidence that might impact the appeal's outcome. The court needed to balance the principles of justice and public safety with the defendant's right to liberty.

The Supreme Court found that JC's appeal was reasonably arguable, primarily based on the fresh evidence presented. The court held that this fresh evidence could potentially lead to a different outcome in the appeal, making it arguable. Additionally, the court identified special or exceptional circumstances, such as JC's strong ties to the community and the potential impact of continued detention on JC's mental health, as factors supporting the grant of bail. Consequently, the court granted JC bail pending the outcome of the appeal in the Court of Criminal Appeal.

The final orders of the court were that JC be released on bail with certain conditions, pending the resolution of the appeal. These conditions included regular reporting to the bail authority and restrictions on JC's movements. The court also set a date for a review of the bail conditions to ensure compliance and public safety.

Orders