R v Jiao (No 3) - [2014] NSWDC 354

District Court

New South Wales

Medium Neutral Citation: R v Jiao (No 3) [2014] NSWDC 354
Decision date: 22 December 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
Bail refused.

Catchwords: CRIMINAL LAW – procedure – bail application – after conviction and sentence – appeal pending – relevant considerations – whether special or exceptional circumstances to justify grant of bail – limited assessment of grounds of appeal – grounds of appeal as expressed not most likely to succeed – possible length of time in custody before appeal is heard – principles of administration of justice
Legislation Cited: Bail Act 1978 (NSW), s 30AA
Bail Act 2013 (NSW), s 22
Criminal Code 1995 (Cth), s 400.9
Cases Cited: Commonwealth Director of Public Prosecutions v Cassaniti [2006] NSWSC 1103
United Mexican States v Cabal (2002) 209 CLR 165
R v John Kay Jin Khoo [2013] NSWSC 1518
Category: Procedural and other rulings
Parties: Regina (Crown)
Yi Hua Jiao (Offender)
Representation:
Counsel: F Santisi (Offender)
Solicitors: Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2013/23304

Judgment

Yi-Hua Jiao was charged before me with a Commonwealth offence I will refer to as money laundering. It was an offence against s 400.9(1) of the Criminal Code 1995 (Cth). Last Tuesday 16 December 2014 the jury returned a verdict of guilty on the charge. I convicted Ms Jiao and stood the case over to Thursday 18 December 2014 to hear any evidence and submissions on sentence. I granted Ms Jiao bail for that purpose. I granted her bail overnight to Friday 19 December 2014.

HIS HONOUR: Am I right did I sentence her on the Thursday or the Friday?

SANTISI: You sentenced her on the Friday. She was granted bail on Tuesday.

On that Friday I sentenced Ms Jiao to six months imprisonment to commence from that day.

Mr F Santisi of counsel who appeared for Ms Jiao in the trial and in the sentence proceedings applied for bail pending an appeal. He made available to me a notice of intention to appeal which became exhibit 44 in the proceedings.
Ms J Katrib who appeared for the Commonwealth Director of Public Prosecutions on the bail application drew my attention to s 22 of the Bail Act 2013. It is a very significant provision and says as follows -

“Despite anything to the contrary in this Act, a Court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision:
a) An offence for which an appeal is pending in the Court of Criminal Appeal against i) a conviction on indictment, or ii) a sentence imposed on conviction on indictment, …”

Ms Jiao’s notice of intention to appeal is both from the conviction and from the sentence. I stood the bail application over to today, Monday 22 December 2014, inviting Mr Santisi to address me on two particular issues as well as any other matters. The first…

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 Jiao (No 3)

Details

AGLC: R v Jiao (No 3) [2014] NSWDC 354
Case: [2014] NSWDC 354
Decision Date: 22 December 2014

CaseChat Overview and Summary

The case of R v Jiao (No 3) was heard in the Supreme Court of Queensland. The primary issue before the court was whether to grant bail to the appellant, Mr Jiao, following his conviction and sentencing, with an appeal against the conviction and sentence pending. Mr Jiao had applied for bail during the period between his conviction and the hearing of his appeal, arguing that the length of time he might spend in custody before the appeal was heard constituted special or exceptional circumstances warranting bail. The prosecution opposed the application, contending that the grounds of appeal were unlikely to succeed and that the principles of the administration of justice did not support granting bail in such circumstances.

The court considered several factors in determining the application. Firstly, it examined the nature and strength of the grounds of appeal, noting that the appeal was unlikely to succeed based on the grounds as currently expressed. The court also weighed the potential length of time Mr Jiao might spend in custody before the appeal was heard, alongside the broader principles of the administration of justice, which generally favour maintaining the status quo until the appeal process is complete. The court concluded that the balance of considerations did not support the grant of bail, as the special or exceptional circumstances necessary to justify it were not present in this case.

As a result of the court's reasoning, the application for bail was refused. The court found that the grounds of appeal were not compelling enough, and the potential length of time in custody, while a relevant consideration, did not outweigh the other factors. The court emphasised the importance of maintaining the integrity of the appeal process and the general rule that bail should not be granted to an appellant after conviction and sentencing, except in truly exceptional circumstances.

Orders

Orders of the court

Bail 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 Jiao (No 3) [2014] NSWDC 354
Decision date:	22 December 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Bail refused.
Catchwords:	CRIMINAL LAW – procedure – bail application – after conviction and sentence – appeal pending – relevant considerations – whether special or exceptional circumstances to justify grant of bail – limited assessment of grounds of appeal – grounds of appeal as expressed not most likely to succeed – possible length of time in custody before appeal is heard – principles of administration of justice
Legislation Cited:	Bail Act 1978 (NSW), s 30AA Bail Act 2013 (NSW), s 22 Criminal Code 1995 (Cth), s 400.9
Cases Cited:	Commonwealth Director of Public Prosecutions v Cassaniti [2006] NSWSC 1103 United Mexican States v Cabal (2002) 209 CLR 165 R v John Kay Jin Khoo [2013] NSWSC 1518
Category:	Procedural and other rulings
Parties:	Regina (Crown) Yi Hua Jiao (Offender)
Representation:	Counsel: F Santisi (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2013/23304