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R v Moore

R v Moore

Case [2015] NSWSC 1262 6 August 2015

Bail

Criminal Liability

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Moore [2015] NSWSC 1262
Hearing dates: 6 August 2015
Date of orders: 06 August 2015
Decision date: 06 August 2015
Before: Hamill J
Decision:
Bail is granted subject to conditions.

Catchwords: CRIMINAL LAW - BAIL – bail pending appeal – special or exceptional circumstances – fraud – unusual case – substantial overdraft through bank error – lengthy delay between trial and appeal – transcripts of trial not available – conditional bail granted
Legislation Cited: Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Bail Amendment Act 2014 (NSW)
Cases Cited: DPP v Mawad [2015] NSWCCA 227
El Hilli v Melville [2015] NSWCCA 146
Ilich v R (1987) 162 CLR 110
Kennison v Daire (1986) 160 CLR 129
R v Potisk (1973) 6 SASR 389
R v Young [2006] NSWSC 1499
Shields v New South Wales Crime Commission [2007] NSWCA 309
Westpac Banking Corporation v Ollis (2007) FCA 1194
Texts Cited: Steel, “Problematic and Unnecessary? Issues with the use of the Theft Offence to Protect Intangible Property” (2008) 30 Sydney Law Review 575
Category: Principal judgment
Parties: Luke Brett Moore (Applicant)
Crown
Representation: Solicitors:
Self-represented (Applicant)
Solicitor for the NSW DPP (Crown)

File Number(s): 2015/154901
Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

Luke Moore makes a release application under the provisions of the Bail Act 2013 (NSW) as amended by the Bail Amendment Act2014 (NSW). He was convicted by a jury in Goulburn of two offences after a trial which concluded on 19 February 2015. Those are offences of dishonestly obtaining a benefit by deception and dealing with the proceeds of crime. The applicant was taken into custody shortly after the jury returned its verdicts and was subsequently sentenced by the Trial Judge, Judge Norrish SC, to a total sentence of four and a half years with a non-parole period of two years and three months. The non-parole period will expire on 17 May 2017.
The application first came before me in the bail list on 21 July 2015. Due to the obvious complexity of the matter and the busyness of the list, the matter was adjourned in order to obtain a date when the Court could hear the application. On 23 July 2015 I listed the matter for hearing today. Neither the solicitor nor the Crown Prosecutor who appeared for the Crown at the trial was available to appear and the Crown is represented today by Mr Lee.
Because the application follows the applicant's conviction and sentence on indictment, the provisions of s 22 of the Bail Act apply. That section requires the applicant to establish that there are "special or exceptional circumstances" that justify a decision to grant bail. The content and operation of that section was considered in El Hilli v Melville [2015] NSWCCA 146. That case was also a case involving allegations of large scale fraudulent conduct and involved unrepresented litigants. However, there are very few other comparisons when one analyses the relevant circumstances of each…

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 Moore

Details

AGLC: R v Moore [2015] NSWSC 1262
Case: [2015] NSWSC 1262
Decision Date: 06 August 2015

CaseChat Overview and Summary

In the case of R v Moore, the appellant was convicted of fraud and sentenced to imprisonment. The appeal against the conviction and sentence was to be heard at a later date. The appellant applied for bail pending the hearing of the appeal. The legal issues before the court were whether there were special or exceptional circumstances that justified the granting of bail, given the nature of the offence, the risk of flight, and the risk of interference with witnesses. The court also had to consider the substantial overdraft incurred due to a bank error, the lengthy delay between the trial and the appeal, and the unavailability of the trial transcripts.

The court considered the nature of the offence, the substantial overdraft, and the delay between the trial and the appeal. It noted that the overdraft was not a result of the appellant's actions and that the delay was due to the complexity of the appeal and the unavailability of the trial transcripts. The court found that the appellant had established special or exceptional circumstances and granted conditional bail. The court considered that the risk of flight and the risk of interference with witnesses were not significant, given the appellant's ties to the community and the unlikelihood of witnesses being influenced.

The court granted the appellant conditional bail pending the hearing of the appeal. The conditions included that the appellant reside at a specified address, report to a police station on a regular basis, surrender any travel documents, and refrain from contacting any witnesses. The court also ordered that the appellant provide a surety and that a bond be entered into in the sum of $50,000.

The final orders of the court were that the appellant be granted conditional bail pending the hearing of the appeal, subject to the conditions outlined above. The court noted that the appellant had a right to a fair trial and that the granting of bail was not an admission of guilt. The court also noted that the appellant's right to a speedy trial would be protected and that the appeal would be heard as soon as possible.

Orders