R v Robert Flaherty - [2016] NSWDC 121

District Court

New South Wales

Medium Neutral Citation: R v Robert Flaherty [2016] NSWDC 121
Hearing dates: 26 February 2016
Date of orders: 26 February 2016
Decision date: 26 February 2016
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
1. Under s 11 of the Bail Act 2013 bail is granted to the offender on the same conditions as were fixed at the conclusion of the trial. I confirm that there are no reporting conditions. An additional condition is that the appeal anticipated in the notice of intention to appeal is to be prosecuted with due diligence.
2. I make an order that the matter be referred to the Registrar at the Court of Criminal Appeal at the next call-over on 3 March 2016.
3. I excuse Mr Flaherty from having to appear at the call-over provided he is legally represented.

Catchwords: CRIMINAL LAW – procedure – bail – after conviction pending appeal – special or exceptional circumstances – particular cases – authorities suggest you lower threshold on prospects of success
Legislation Cited: Bail Act 2013 (NSW)
Cases Cited: El-Hilly and Melville v R [2015] NSWCCA 146
R v Jiao (No 3) [2014] NSWDC 354
United Mexican States v Cabal (2002) 209 CLR 165
Category: Procedural and other rulings
Parties: Regina (Crown)
Robert Flaherty (Offender)
Representation:
Counsel:
Ms D Daleo (Crown Prosecutor)
Ms L Rowan (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Benetatos White (Offender)

File Number(s): 2013/201461
Publication restriction: None

Judgment

Mr Flaherty was found guilty last year by a jury of two serious offences committed some decades ago against a teenage boy. He was then a Catholic Priest and the boy was a parishioner and an altar boy.
He had pleaded guilty to other offences against two other boys.
I sentenced Mr Flaherty yesterday. I fixed a sentence of two years and three weeks and I fixed a non-parole period of six months. I directed that the sentence commence not yesterday but today. The reason for that direction is that Ms Rowan who appears for him indicated that she would be making a release application under the Bail Act 2013. She has pursued that release application this afternoon. I have a very full list today. I have just heard Ms Rowan and Ms Daleo as Crown Prosecutor on the merits of the release application.
It is suggested that the leading current authority is El-Hilly and Melville v R [2015] NSWCCA 146. I think that is right. Hamill J delivered a judgment in which Simpson J, as her Honour then was, and Davies J agreed. With respect, his Honour carefully and helpfully analysed the relevant legislation. This case, like El-Hilly and Melville, involved s 22 of the Bail Act 2013. This case falls within that section because there is an appeal pending in the Court of Criminal Appeal against the conviction which I imposed after the jury verdict and the sentence which I delivered yesterday. The section provides that I am not to grant bail “unless it is…

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 Robert Flaherty

Details

AGLC: R v Robert Flaherty [2016] NSWDC 121
Case: [2016] NSWDC 121
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the matter of the criminal proceedings against Robert Flaherty, the dispute before the court concerned his eligibility for bail pending the outcome of an appeal against his conviction. Flaherty had been convicted and sentenced, and he sought bail under the Bail Act 2013 while his appeal was being prepared. The legal issues the court needed to address involved whether special or exceptional circumstances existed that would warrant the granting of bail after conviction, despite the general rule against such bail. The court had to determine if there were grounds to lower the threshold on the prospects of success in the appeal, as suggested by various authorities.

The court considered the principles guiding the grant of bail after conviction, which typically require strong evidence of special or exceptional circumstances. In this case, the court examined whether the anticipated appeal had a realistic prospect of success, and if the delay in finalising the appeal would cause substantial injustice to the appellant. The authorities cited indicated that in particular cases, the threshold for granting bail could be lowered if the appeal had a substantial prospect of success and the delay in finalising the appeal proceedings would result in significant injustice. The court also noted the importance of the appeal being prosecuted with due diligence.

After careful consideration of the evidence and legal arguments presented, the court concluded that special or exceptional circumstances did exist in this case, justifying the grant of bail. The appeal had a substantial prospect of success, and the delay in finalising the appeal proceedings would cause substantial injustice to Flaherty. The court granted bail on the same conditions as those fixed at the conclusion of the trial, with an additional condition that the appeal be prosecuted with due diligence. The matter was referred to the Registrar at the Court of Criminal Appeal, and Flaherty was excused from appearing at the call-over provided he was legally represented.

Orders

Orders of the court

1. Under s 11 of the Bail Act 2013 bail is granted to the offender on the same conditions as were fixed at the conclusion of the trial. I confirm that there are no reporting conditions. An additional condition is that the appeal anticipated in the notice of intention to appeal is to be prosecuted with due diligence.

2. I make an order that the matter be referred to the Registrar at the Court of Criminal Appeal at the next call-over on 3 March 2016.

3. I excuse Mr Flaherty from having to appear at the call-over provided he is legally represented.

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 Robert Flaherty [2016] NSWDC 121
Hearing dates:	26 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	1. Under s 11 of the Bail Act 2013 bail is granted to the offender on the same conditions as were fixed at the conclusion of the trial. I confirm that there are no reporting conditions. An additional condition is that the appeal anticipated in the notice of intention to appeal is to be prosecuted with due diligence. 2. I make an order that the matter be referred to the Registrar at the Court of Criminal Appeal at the next call-over on 3 March 2016. 3. I excuse Mr Flaherty from having to appear at the call-over provided he is legally represented.
Catchwords:	CRIMINAL LAW – procedure – bail – after conviction pending appeal – special or exceptional circumstances – particular cases – authorities suggest you lower threshold on prospects of success
Legislation Cited:	Bail Act 2013 (NSW)
Cases Cited:	El-Hilly and Melville v R [2015] NSWCCA 146 R v Jiao (No 3) [2014] NSWDC 354 United Mexican States v Cabal (2002) 209 CLR 165
Category:	Procedural and other rulings
Parties:	Regina (Crown) Robert Flaherty (Offender)
Representation:	Counsel: Ms D Daleo (Crown Prosecutor) Ms L Rowan (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Benetatos White (Offender)
File Number(s):	2013/201461
Publication restriction:	None