R v Rodriguez - [2020] NSWSC 1660

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rodriguez [2020] NSWSC 1660
Hearing dates: 5 November 2020; 11 and 13 November 2020 (written submissions)
Date of orders: 23 November 2020
Decision date: 23 November 2020
Jurisdiction: Common Law - Criminal
Before: Walton J
Decision:
The Court makes the followings orders:
(1) The Crown’s detention application is granted.
(2) The respondent’s bail is revoked and he is to be detained forthwith.

Catchwords:
BAIL – where a detention application is brought by the Crown following a grant of bail pending appeal – jurisdiction of the Supreme Court – whether special or exceptional circumstances have been established under s 22 of the Bail Act 2013 (NSW) – relevant principles – arguability test is only enlivened upon the Court being satisfied that an additional factor of substance has been established to support the finding of special or exceptional circumstances – youth – period in custody – delay – prior bail granted – proposed grounds of appeal – assessment of merits – detention application granted

Legislation Cited:
Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Rules (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103
El Khouli v R [2019] NSWCCA 146
El-Hilli and Melville v R [2015] NSWCCA 146
GBF v The Queen [2020] HCA 40
M v The Queen (1994) 181 CLR 487
Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4
Murray v R (1987) 11 NSWLR 12
Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
Obeid v R (No 2) [2016] NSWCCA 321
Pell v The Queen [2020] HCA 12
Peters v The Queen (1996) 71 ALJR 309
Petroulias v R [2010] NSWCCA 95
R v XHR [2012] NSWCCA 247
R v Ambury [2017] NSWCCA 115
R v Beserick (1993) 30 NSWLR 510
R v Brown (Unreported, Supreme Court of NSW, Walton J, 6 February 2019)
R v Hemsley (1988) 36 A Crim R 334
R v Henning (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990)
R v Kitchener (1993) 29 NSWLR 696
R v O'Meagher (1997) 101 A Crim R 196
R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
R v Thomas (Unreported, Supreme Court of NSW, Campbell J, 4 June 2014)
R v Tolmie (1995) 37 NSWLR 660
R v Vaziri [2016] NSWSC 1283
R v Velevski [1999] NSWCCA 96
R v Waters (1990) 9 Petty SR 4016
R v Williams [2018] NSWSC 994
R v Zorad [1979] 2 NSWLR 764
Roos v R [2019] NSWCCA 67
Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102
Stanford v R [2018] NSWCCA 249
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Wilson v R (1994) 34 NSWLR 1

Texts Cited:
Judicial Commission of NSW, “An introduction to the Bail Act 2013”, Judicial Officer’s Bulletin, Vol 26(1) (February 2014)

Category: Principal judgment
Parties: Regina (Applicant)
Christopher Rodriguez (Respondent)
Representation:
Counsel:
R Khalilizadeh (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Applicant)
Legal Aid NSW (Respondent)

File Number(s): 2019/162052; 2020/301806

Judgment

HIS HONOUR: The present proceeding concerns a detention application made with respect to Christopher Rodriguez (“the respondent”).

PROCEDURAL HISTORY

On 13 August 2020, the respondent was convicted on indictment in the District Court of New South Wales by a jury of two counts of sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900 (NSW).
On 19 August 2020, the respondent filed a Notice of Intention to Appeal.
On 7 October 2020, submissions were filed on behalf of the respondent on an application for appeals bail, pursuant to an intended appeal against conviction as to both counts, on the following grounds:

the verdict was unreasonable; and

the directions in respect of reasonable grounds for belief in consent gave rise to a miscarriage of justice.

On 9 October 2020 the trial judge, Armitage ADCJ, sentenced the respondent to an aggregate term of 3 years’ imprisonment, expiring on 8 October 2023. A non-parole period of 1 year and 6 months was imposed, commencing on 9 October 2020 and expiring on 8 April 2022.
On 9 October 2020, Armitage ADCJ heard the respondent’s application for appeals bail and granted conditional bail the same day.
There is no contention that the respondent has breached his bail. Rather, the applicant seeks detention in this Court for essentially the same reasons that bail was opposed in the District Court.
Nonetheless, s 75 of the Bail Act 2013 (NSW) provides that any bail application heard by a court “is to be dealt with as a new hearing”. The definition of “bail application”, pursuant to s 4 of the Bail Act, includes “a detention application”.
Hence, the issue in the present application is not whether the trial judge erred in granting bail, but rather, the question is whether the fresh detention application should be granted.

JURISDICTION TO THE SUPREME COURT

The jurisdiction of this Court in relation to bail applications is found in Pts 5 and 6 of the Bail Act. The power for the Court to hear a bail release application where there is an appeal pending in the New South Wales Court of Criminal Appeal (“the CCA”) is governed by ss 61, 62 and 66(1) in Pt 6 of the Bail Act.
The Crown initially placed reliance upon s 62 of the Bail Act in order to establish a jurisdictional footing for the present application, however, later shifted attention to s 66(2) of the Bail Act.
Given the conclusions I will reach in that matter as to the existence of jurisdiction under s 66(2), it is strictly unnecessary to consider the operation of s 62 beyond noting that the respondent has been convicted of the offences; proceedings on appeal against conviction are pending; and, it was common ground, the respondent has not yet made his first appearance before the CCA in relation to his appeal.
Before leaving the operation of s 62, in passing I note that there is some ambiguity as to the meaning of first appearance before the CCA. Section 4 of the Bail Act defines “first appearance” as “a first appearance of an accused person before a court or authorised justice in proceedings for an offence”. An “authorised justice” is defined as:

(a) a registrar of the Local Court or the Children’s Court, or
(b) an officer of the Department of Attorney General and Justice who is declared, by order of the Minister, whether by reference to his or her name or office, to be an authorised justice for the purposes of this Act, or
(c) a person, or member of a class of persons, declared by the regulations to be an authorised justice for the purposes of this Act

That definition does not appear to include the Registrar of the CCA. Thus, the first appearance of the matter before the Court may arguably not take place until there is an appearance before the justices constituting the Court, which may be the date of the actual hearing.
Before turning to s 66(2) of the Bail Act, it is useful to discuss the operation of s 66(1). As to the jurisdiction conferred by s 66(1), the relevant principles on the application were set out by this Court in R v Brown (Unreported, Supreme Court of NSW, Walton J, 6 February 2019) (“Brown”) at [16] and the CCA in El Khouli v R [2019] NSWCCA 146 (“El Khouli”) at [13]. In Brown, s 66(1) of the Bail Act was held as the source of the Court’s jurisdiction to hear the release application, by virtue of the prior refusal in the District Court in that matter. Additionally, it was there, as it is here, common ground that the offender was yet to make his first appearance in the CCA. El Khouli is further authority for the submission that this Court has jurisdiction to hear a release application by virtue of s 66(1), where there has been a previous District Court refusal. Further, in Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 (“Noufl”) (per Hamill J), it was held that a single judge of this Court does not have jurisdiction to hear an application under the Bail Act where there is an appeal pending before the CCA and there has been no prior refusal of bail, although, as I will discuss, his Honour’s attention, in my view, was directed to s 66(1) of the Bail Act.
However, those circumstances do no operate in the present context. As mentioned, in the present application, bail was granted by the trial judge after conviction on indictment. Consequently, the Crown application is brought by way of a detention application, following a bail decision being made previously in the District Court.
In this matter, the Crown contended that s 66(2) provided the Court with the jurisdiction to entertain the detention application, operating in the same manner as when jurisdiction is enlivened by s 66(1) to entertain a release application. The respondent did not cavil with that submission.
The Crown contended that, in considering the application of Pt 6 of the Bail Act, guidance can be gained from the Second Reading Speech for the legislation (of 9 May 2013) which relevantly contained the following passage:

Proposed section 61 provides the general rule that a court has power to hear a bail application for an offence if proceedings for the offence are pending before it. However, proposed section 62 provides that a court that convicts a person of an offence may still hear a bail application for the offence after an appeal is lodged against the conviction or sentence, up until the person makes their first appearance in the appeal proceedings. Division 3 sets out the powers of particular courts to hear bail applications. I will not set out these provisions in detail in order to expedite the passage of this legislation; however, I note that proposed section 66 allows the Supreme Court to hear a variation application or detention application where a bail decision has already been made by the District Court. This differs from the existing Act whereby decisions of the District Court can be reviewed only by the Court of Criminal Appeal.

The Crown submitted that, in light of the Second Reading Speech, the legislative intention was to confer in the Bail Act, by way of detention, this Court jurisdiction to entertain applications where a bail decision has already been made by the District Court, making specific reference to the hearing of a detention application in such circumstances.
The Crown also submitted, in considering the intention of the reforms by the Bail Act, in contrast to the Bail Act 1978 (NSW), it is useful to consider the observations of Christopher White, Policy Manager, Justice Policy, Department of Attorney General and Justice, in his article published by the Judicial Commission of NSW, “An introduction to the Bail Act 2013” (Judicial Officer’s Bulletin, Vol 26(1) (February 2014)). In particular, reference was made to an extract at page 4, which appears below:

Making a further bail application following a bail decision
There will no longer be a concept of review of a bail decision under the Act. Instead, if a previous decision has been made to refuse bail, a release application can be made. Alternatively, if a previous decision has been made to grant bail, a variation application can be made to alter the bail conditions, or a detention application can be made by the prosecution. These reforms are intended to do two things: firstly; to streamline and simplify the process for making applications, and secondly; to clarify the nature of the bail application being made and what is being sought.
While it does not incorporate a concept of review, the new Act has been drafted so as not to diminish the accused person or prosecution’s capacity to seek a redetermination of bail. The Act therefore provides courts with broadly equivalent powers to reconsider a bail decision made by another court, or an authorised justice, as provided in the existing Act. Part 6, Div 3 of the Act contains the relevant provisions and refers to the type of application that can be made in each court following a decision in another jurisdiction.
Section 66, for example, provides the Supreme Court with power to hear a release application if a decision to refuse bail has been made by another court, authorised justice or by police. It can also hear a variation application or detention application where a decision to grant bail has been made by the District or Local Courts, an authorised justice or police.

In that light, the Crown submitted that the provisions of the Bail Act do not limit the prosecution’s capacity to seek a redetermination of bail by the bringing of a detention application in another jurisdiction. Specifically, s 66 provides this Court with the power to hear not only release applications where a prior refusal has occurred, but additionally variation or detention applications where a decision to grant bail has been made by another court, here the District Court.
Even with the receipt of supplementary submissions, the Court has not heard full argument of the question of jurisdiction in this matter.
I accept the submissions advanced by Ms R Khalilizadeh, counsel for the respondent, that, whilst Noufl, El Khouli and Brown refer to jurisdiction in circumstances where there have been a prior refusal of bail and accordingly, those cases were not concerned with s 66(2) of the Bail Act (the passage in Noufl at [60] where reference is made to s 66 simpliciter is plainly intended to be a reference to s 66(1)).
A twofold distinction is drawn in s 66 of the Bail Act between subss (1) and (2) as follows:

Subs (1) concerns a release application, whereas subs (2) concerns a detention or variation application.

Subs (1) operates upon a refusal of bail by, inter alia, another court, whereas subs (2) operates if a bail decision has been made by, relevantly, the District Court.

There is no reason, in my view, to read down the clear words of subs (2) extending the operation of the provision to “a bail decision” (meaning, in the context of the provision, any bail decision), with the limitation in subs (1), namely, that the jurisdiction only operates where there has been a refusal of bail in, inter alia, another Court (other than this Court). The legislation plainly draws a distinction in this respect between subss (1) and (2); with any possible inconsistently being resolved by the provisions dealing with different subject matters – subs (1) with release applications and subs (2) with detention or variation applications.

SPECIAL OR EXCEPTIONAL CIRCUMSTANCES: RELEVANT PRINCIPLES

Pursuant to s 22(1), the applicant must establish that special or exceptional circumstances exist to justify the grant of bail: El-Hilli and Melville v R [2015] NSWCCA 146 (“El-Hilli”) at [11] (per Hamill J, with whom Simpson and Davies JJ agreed). The requirement to establish special or exceptional circumstances is at least as onerous as the requirement to show cause: El-Hilli at [11].
The relevant principles as to a determination under s 22 were set out in Brown at [19]-[35] and are adopted in this judgment.

General Principles

Where s 22 is engaged there are two stages. The applicant must first demonstrate special or exceptional circumstances. Subject to special or exceptional circumstances being found, the Court must then apply the unacceptable risk test and “do so by application of the exhaustive list of matters set out in s 18.” In El-Hilli, the Court observed (at [13]):

[13] … The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special or exceptional circumstances, it is likely that the same material will also succeed in satisfying the unacceptable risk test. However, that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act. A case may arise where a particular matter qualifies as a “special or exceptional circumstance” and yet the application of the unacceptable risk test results in the refusal of bail. Such a case is likely to be rare because the “unacceptable risk” factors are imported in the “special or exceptional circumstances” requirement by s 22(3).

Reference should also be made to El-Hilli at [28]-[29]. Hamill J observed:

[28] The list of factors in s 18 is specifically brought into s 22 by sub-s (3). However, those factors are subject to sub-s (1), that is, the requirement for special or exceptional circumstances. In a case where the appeal is from a conviction on indictment, the question is whether there are special or exceptional circumstances justifying the grant of bail.
[29] The language used in earlier cases cannot supplant the statutory language or the terms of the limitation created by s 22 (and s 30AA before it). “Special or exceptional circumstances” may exist in the combination of factors or in “the coincidence of a number of features”: cf the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20] when dealing with the requirement to establish “exceptional circumstances” in a murder case under the 1978 Act. It is not possible to determine or predict in advance what those features may be. Two features that frequently arise are (i) the merit of the appeal and (ii) the possibility that the applicant will have served their sentence or non-parole period, or a substantial part of it, before the appeal is determined.

Mention may also be made of the discussion by Hamill J in Noufl at [5], as to matters applicable for consideration in the assessment of special or exceptional circumstances for the purpose of s 22, as follows:

[5] … As a general proposition the matters informing the question whether special or exceptional circumstances are established include first, whether the proposed appeal or application for leave to appeal has reasonable prospects of success and second, whether it is likely that the sentence subject to the appeal will have expired or largely expired before the appeal has been heard. Other matters, more generally associated with an ordinary bail application, are also relevant to a consideration of an application governed by s 22. The “unacceptable risk” test and the criteria identified in s 18 of the Bail Act are imported into the provision by s 22(3).

Merits of the Appeal: Principles

Common Ground: Two Tier Test

The first of the considerations discussed in the extract from Noufl in the immediately preceding paragraph attracted particular attention in the present matter. It was common ground that where the merits of the appeal were relied upon to demonstrate special or exceptional circumstances then, if that factor was relied upon in isolation the relevant test in assessing a merits of the appeal was whether the appeal was “likely to succeed”. On the other hand, where that prospects of success of the appeal was “relied” upon in conjunction with other factors to demonstrate special or exceptional circumstances, then the test to be applied in assessing those prospects was “whether the proposed grounds of appeal are arguable or enjoyed reasonable prospects of success”.
That consensus reflected, in my view, the state of authority in relation to appeal bails which I outline below, namely, where the only factor relied upon to show special and exceptional circumstances is the merits of the appeal it may be necessary to establish the appeal is “likely” to succeed, but, in matters where a combination of factors is “relied” upon by a party seeking bail or a party resisting a detention application, the question becomes whether the appeal grounds are arguable or enjoyed reasonable prospects of success although the preferable formation, given the terms of s 18(1)(j) may be “reasonably arguable prospects of success” (I shall discuss below there was a dispute as to what a party relying upon grounds other than the merits of the appeal needed to establish in order to attract the latter test).
The parties referred to the former test as the “higher test” and the latter as the “lower test”. I shall refer to the distinction being a “likely to succeed test” (the “higher test”) and “the arguability test” (the “lower test”), respectively.

I will first explore authority establishing that dichotomy in the tests applied.
In R v Williams [2018] NSWSC 994 (“Williams”), Davies J gave consideration of a detention application made under s 22 (particularly by reference to reliance upon the prospects of success of appeal as a factor in demonstrating special or exceptional circumstances for the purposes of that provision), his Honour stated (at [11]-[13]):

[11] In Petroulias v R [2010] NSWCCA 95, Barr AJ said of the test for establishing special or exceptional circumstances under s 30AA of the Bail Act 1978 (NSW) (which was in relevantly identical terms to s 22(1)), that an applicant has to show much more than that the grounds seem arguable. His Honour made reference at [34] to R v Wilson (1994) 34 NSWLR 1 in which Kirby P (Sheller JA agreeing) said at [6] that the applicant must appear “most likely to succeed”.
[12] In R v Antoun [2005] NSWCCA 270 the Court (Simpson, Johnson & Rothman JJ) said:
[14] It was argued on behalf of the applicants that the grant of special leave is an indicator that the appeal to the High Court “is most likely to succeed” and that “there is a real prospect that the conviction might be set aside”. In our opinion this overstates the position. This Court has been reminded by the Crown that it has been said that bail pending appeal will be granted only where the ground of appeal is so strong that it is virtually “certain to succeed”, and obviously so: R v Wilson (1994) 34 NSWLR 1. We do not accept that s30AA is so limited.
[15] The judgment which has frequently been cited was, in fact, a minority position in Wilson. In Wilson, Kirby P, with whom Sheller JA agreed, said:
“... it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed.”

It is to be noted that, in that passage, Kirby P and Sheller JA seem to envisage that there may be grounds other than the merits of the appeal which would satisfy the s30AA test. Where the application is based only on the ground of the merits of the appeal, the passage has application but these remain open to the possibility that there are potentially other circumstances that might merit the grant of bail.

[13] In El-Hilli, Hamill J (Simpson and Davies JJ agreeing) said of these cases:
[24] … However, I should make it clear that I do not accept the suggestion that an applicant must establish that their appeal will either “inevitably succeed” or that success is “virtually inevitable”. Neither the statutory language, nor the case law, supports such a strict test. It was rejected by the Court (Simpson, Johnson and Rothman JJ) in R v Antoun.
[25] The comment made by the single Judge may have been based on a misunderstanding of a submission made in the Crown’s bail chronology in which the observations made by Hunt CJ at CL in R v Wilson were set out. As the Court pointed out in R v Antoun, those observations did not reflect the majority position. Kirby P (with whom Sheller JA agreed) in R v Wilson did not adopt the proposition that the appeals success must be “virtually inevitable”. His Honour referred to the need for there to be “something more than an arguable point” and suggested that the appeal “must be most likely to succeed”.
[26] In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulias v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is “most likely” to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v The Queen at 310-311; Marotta v The Queen at 266; R v Velovski [sic] [R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445] at [24]-[25].

In Brown, the Court observed (at [28]-[35]):

[28] First, a distinction appears to have been drawn on the authorities, when the grounds of appeal are advanced as a factor demonstrating special or exceptional circumstances, between cases where that factor was relied upon in isolation, and those where the applicant relied upon that factor in combination with other factors including whether the applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal.
[29] It is true that Barr AJ (with whom Hodgson JA and Rothman J agreed) in Petroulias v R [2010] NSWCCA 95 at [34] stated, that where the grounds of appeal are put forward as “the only or the principal factor” (emphasis added) demonstrating special or exceptional circumstances, an applicant must show more than that the grounds seem arguable (referring to the test in R v Wilson (1994) 34 NSWLR 1 at 6, requiring an appeal to be “most likely to succeed”).
[30] It may be observed, in that respect, Kirby J (with whom Sheller JA agreed) in R v Wilson, adopted the approach, for the purposes of s 30AA of the Bail Act 1978 (NSW) (repealed by s 100 of the Bail Act 2013, with effect from 20 May 2014), of assessing whether the applicant for bail had demonstrated special or exceptional circumstances by examining whether (potentially) grounds of appeal constituted a “most arguable point” or were “very likely to succeed” (at 6). His Honour did not specifically consider whether the combination of factors may have resulted in a less stringent test, but his discussion under the heading “Need for a powerful case of error in the trial to support bail” was undertaken after the rejection of all the other factors relied upon by the applicant to demonstrate special or exceptional circumstances.
[31] Hamill J later found in El-Hilli that such a requirement would only operate where the applicant relied “exclusively on the strength of the appeal” (at [26]). His Honour contrasted that situation with a bail application where the merit of the appeal was relied upon as only one part of a combination of factors said to demonstrate special or exceptional circumstances. Further, at [29], his Honour referred to special or exceptional circumstances being established by a combination of factors. In that context His Honour referred to two factors relied upon in that matter: the merit of the appeal and the period served in custody by the time of the hearing of an appeal, as being factors relied upon in combination to demonstrate special or exceptional circumstances.
[32] The application by Davies J of the test “most likely to succeed” in Williams, in considering whether the merits of the appeal warranted a finding of special or exceptional circumstances, arose in a context where the respondent resisted a detention application based solely on the strength of the Crown case (see at [25] and [38]).
[33] Secondly, where the ground of appeal is put forward in combination with other factors to demonstrate special or exceptional circumstances, the relevant criteria in assessing the merits of the appeal would appear to be whether the grounds relied upon by the applicant in the appeal were reasonably arguable or that there were reasonable prospects for the appeal.
[34] In El-Hilli, Hamill J stated that the applicable question, where the merits of the appeal are raised in combination with other factors to demonstrate special or exceptional circumstances, was “whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success” (at [26]) (both descriptors are used intermittently in the consideration of the merits of the appeal of the applicant in that case (see at [45])). Reference was made in support of that approach in Peters v The Queen (1996) ALJR 304 (“Peters”) (at 310–311); Marotta v The Queen (1999) 73 ALJR 265 (“Marotta”) (at 266) and R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445 (“Velevski”) (at [24]-[25]).
[35] Dawson J in Peters (in the context of application for special leave to the High Court of Australia), considered whether there were “reasonable prospects for success” of the appeal (at 310-311). Callinan J in Marotta, referred to “an arguable point, that may have real substance and which, if it succeeds, would probably justify a retrial” (at [18]). Barr J in Velevski, reiterated the approach in Marotta.

Recently, in the decision of Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102 (“Samandi”), the CCA (per Harrison, R A Hulme and Wright JJ) held that special or exceptional circumstances were found because the applicant’s sentence appeal had some reasonable prospects of success. This, taken in combination with the fact that a substantial portion of his non-parole period would expire before his appeal was listed and his custodial status was adversely affecting his ability to properly prepare for his appeal, as he was a litigant in person.
Further, I note that in R v Paul Campbell (a pseudonym) [2017] NSWSC 1844 (per Hamill J), the Court found that special or exceptional circumstances were established where a significant portion of a short sentence was likely to be served before any appeal would be heard.

Disputed Question: Combination of Factors

As earlier mentioned, there was, however, a dispute in this matter as to the application of the aforementioned principles, which turned upon whether or not the party seeking bail (or resisting a detention application), who relied upon a combination of factors including the merits of the appeal to demonstrate special and exceptional circumstances, must, in order to attract the arguability test in the assessment of the merits of an appeal first establish there is substance in the factors relied upon in addition to the merits of the appeal. I will next deal with that issue.
The issue arises in the present matter because the respondent did not rely upon the prospects of success of the appeal as the only or principal factor to establish special circumstances, but rather relied upon eight factors in combination (including the merits of the appeal) to establish special or exceptional circumstances. Hence, it was contended by the respondent, that the relevant test in considering the prospects of the success of the appeal was the arguability test.
The Crown contended that “mere reliance” upon a combination of factors is insufficient to establish a basis for the arguability test”. It was the Crown submission that the application of the test as to the merits of the appeal should occur after rejection (or acceptance, if such were the case) of all the other factors relied upon by the respondent to demonstrate special or exceptional circumstances. Here, if, after such consideration occurs, the only or principal factor that remains are the merits of the grounds of appeal, then the “likely to succeed” test should be applied.
The consideration of that issue will require a further examination of the line of authority dealing with appeals bail where the merits of appeal are relied upon by the party seeking bail.
In El-Hilli, Hamill J stated that the applicable question, where the merits of the appeal are raised in combination with other factors to demonstrate special or exceptional circumstances, was “whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success” (at [26]). Reference was made in support of that approach to Peters v The Queen (1996) 71 ALJR 309 at 310-311 and Marotta v The Queen (1999) 73 ALJR 265 at 266 (which involved the exercise of the High Court’s inherent jurisdiction but employed a test of similar stricture to that before the Court in El-Hilli); R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445 at [24]-[25] (referring to the operation of s 30AA, but the principles remain applicable to the operation of s 22). It is useful to briefly turn to those authorities.
In Peters v The Queen, Dawson J granted bail in circumstances where the applicant was due to be released upon a recognisance before the hearing of the special leave application and where the “application for special leave [was] clearly not hopeless and in my view there is a reasonable prospect that it will succeed”. That decision was not made, however, on the basis of the singular consideration of the merits of the appeal. The following additional factors were also noted by his Honour before reaching his decision:

The applicant was previously granted bail by the Victorian Court of Appeal on 19 October 1995, 10 days after the commencement of his term of imprisonment, pending applications for leave to appeal to that court against both the conviction and sentence.

Those applications were heard by the Court of Appeal between 13 and 15 August 1996 and dismissed on 11 November 1996.

On 28 November 1996, the applicant filed an application for special leave to appeal to the High Court. The Court was informed that application is unlikely to be listed for hearing before 14 February 1997.

The applicant is due to be released upon a recognisance on 15 February 1997. His Honour observed, in that respect, “there can be little doubt that an application for special leave heard on 14 February 1997 would in all practical respects be futile”. Thus, “[w]ere the applicant ultimately successful in this Court, the quashing of his conviction would be the only practical benefit”.

His Honour further held: “In my view the point which the applicant wishes to raise is of the kind which may attract the grant of special leave. On the material before me I certainly do not think that the applicant's case is unarguable”.

In Marotta v The Queen, Callinan J granted bail and, in doing so, observed (at [19]): “I emphasise that it is the combination of the matters to which I have referred and the facts of the cases before me that demonstrate sufficiently exceptional circumstances to warrant bail. A grant of special leave alone certainly would not do so”.
It is instructive to note the “combination of matters” that informed his Honour’s assessment:

1. special leave has been granted in all of the cases;
2. without in any way seeking to pre-judge the appeals, I am of the view that they raise an arguable point, which may have real substance and which, if it succeeds, would probably justify a retrial;
3. pending trial, the applicants were granted bail;
4. substantial parts of the custodial sentences are likely to have been served and possibly completed in one case by the time this Court's decisions are published;
5. all of the applicants are, save with respect to the duration of the periods likely to be served, in the same position;
6. if the applicants are acquitted, then the benefit of such acquittals would be hollow victories;
7. the appeals in these cases will not in the normal course be heard for some months yet: there is no reason why the appeals should be given priority over other pending criminal appeals, and it may be expected that the Court would reserve its decision for some time after the hearing;
8. it seems to have been accepted that a concession was made in the Court of Criminal Appeal that some evidence had been wrongly excluded, although it has been made clear to me by the respondent to these applications that it contends that that concession did not in any way affect, or should not have affected the correctness of the convictions and the decision of the Court of Criminal Appeal;
9. I am of the view that so long as it be clear that the full terms in actual time to be served in prison are served if the appeals are refused, the public interest in the fact of the convictions and their consequences will not be adversely affected, whereas, there is, in my opinion, no public benefit or interest in the incarceration of people who might turn out to have been wrongly convicted according to law;
10. although even if the applicants make out their legal points, they may still have to demonstrate that their cases do not call for the application of the proviso, their cases are not ones in which they simply contend that the verdicts were unsafe and unsatisfactory and on that account alone should be set aside;
11. there is a carefully reasoned dissenting judgment in the Court of Criminal Appeal;
12. there is no suggestion that these applicants are likely to abscond or offend whilst on bail; and
13. there is, and almost all penal legislation and executive policies relating to parole, work release, home detention, rehabilitation and the like recognise, a real distinction between custody in prison and the head sentence actually imposed: and accordingly it is not inappropriate to have regard to the non-custodial aspect of a sentence in considering an application for bail.

It may be observed, in both Peters v The Queen and Marotta v The Queen, the High Court had regard to a combination of factors that were held to be relevant and appropriate considerations in conjunction with the merits of the appeal.
In light of the submissions advanced by the parties, I also turn to principals to be distilled from Wilson v R (1994) 34 NSWLR 1. In Wilson v R, the Court of Appeal (per Kirby P, with Sheller JA agreeing) considered an application for bail in the context of an appeal yet to be lodged, which raised issues of jurisdiction and agitated the test of special or exceptional circumstances under the then s 30AA of the Bail Act 1978. In that matter, the applicant relied upon three grounds to establish special or exceptional circumstances, with the “most substantial basis upon which the application was put before the Court” being the “strong arguments which the applicant had that errors that occurred in the conduct of the trial”
Upon assessing the substance of each factor advanced by the applicant, the first two considerations (unrelated to the merits of the appeal) were considered inappropriate bases or reasons and, thus, lacked merit. This left only one final consideration, concerning the prospects of success on appeal in light of the ground of appeal, which Kirby P described as “the most substantial basis upon which the application was put before the Court” (at 5).
As to the prospects of success, Kirby P held: “The argument is available to the applicant. However, it is enough for me to say that I think it falls short of the special or exceptional circumstances that are required”: at 6. It should be noted, that consideration was not described as the primary or sole basis, but rather, in the resultant absence of other meritorious grounds, it was the most “substantial”.
Thus, notwithstanding the original application brought by the applicant contained three factors, in light if his Honour’s findings as to the merit of each ground, he applied the “likely to succeed” test to the prospects of success ground. That approach was informed by the authority of R v Waters, as his Honour continued (at 6):

In R v Waters (1990) 9 Petty SR 4016, Badgery-Parker J expressed the opinion that in an application for bail, where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed.
The applicant must be most likely to succeed. This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances. It is important to emphasise that that obstacle is not present in the Court of Criminal Appeal on the review of the merits of the appeal. But it is present before us today.
…
If, as I believe, the test is that stated by Badgery-Parker J in R v Waters I have to say that this is not a matter where a most arguable point, very likely to succeed, has been put before the Court. The matters relied on do not reach the level of demonstrating special or exceptional circumstances.
[Emphasis added.]

In R v Velevski, Barr J (with whom Spigelman CJ and Hulme J agreed) considered the judgment of Callinan J in Marotta and made the following observations with respect to the application of the arguability test at [23]-[24]:

[23] It is convenient to return to the judgment of Callinan J in Marotta v The Queen, not because one is here attempting to consider whether this case is like that case, but because it contains a useful collection of factors or components which in any particular case may well be brought to bear in answering the ultimate question whether, in the instant case, there exist the necessary special or exceptional circumstances warranting a grant of bail. It is also convenient to adopt this course because that is the course adopted by counsel for the applicant. The submission was that many of the features present in Marotta v The Queen were present in this case.
[24] Before I go to the features that are relied on, however, it is necessary to make some comments about the process of reasoning by which the Court is required to say whether the necessary special or exceptional circumstances do or do not exist. A number of component factors may exist. One of them will be the prospects of success of appeal. It can be taken that an asserted ground of appeal which is frivolous or obviously has no chance of success would be given no weight in considering whether special or exceptional circumstances exist. That is, I think, why it is necessary at least to demonstrate that there is an arguable ground of appeal. But one need say no more than that, I think, about the view that the Court entertaining a bail application need take about the apparent strength of the appeal.

In R v Velevski, Barr J accepted that the following factors, with reference to the factors as listed in Marotta v The Queen, were present on the application for bail before the Court (at [25]-[33]):

special leave had been granted, indicating the appeal “must be regarded as having some prospects of success”;

an arguable point had been raised which might have real substance and might justify a retrial;

pending trial the applicants were granted bail;

in the normal course the cases would not be heard for some months and the Court might be expected to reserve its decision after argument;

the tenth point was that the applicants, if they made out their case, would not have to contend with the proviso;

there was a carefully reasoned dissenting judgment in the Court of Criminal Appeal, namely, “the careful and detailed judgment of Kirby J” in Regina v Velevski [1999] NSWCCA 96 at [184]-[351];

there was no suggestion that the applicant was likely to abscond or offend whilst on bail; and

almost all penal legislation and executive policies relating to parole, work release, home detention, rehabilitation and the like recognise a real distinction between custody and prison and the head sentence actually imposed. Accordingly, it was not appropriate to have regard to a non-custodial aspect of a sentence in considering an application for bail.

Notwithstanding and accepting “the strength of all the matters put in favour of the application”, the Court held the applicant had not established special or exceptional circumstances justifying a grant of bail pending the applicant’s leave to the High Court of Australia. For present purposes, it is relevant to observe that Barr J applied the arguability test and in circumstances where the applicant had advanced relevant considerations of substance on the application.
In Petroulias v R [2010] NSWCCA 95 (“Petroulias”), the judgment of Barr AJ (with whom Hodgson and Rothman JJ agreed) is instructive as to the test to be undertaken by the Court with respect to special or exceptional circumstances. First, at the outset, his Honour identified the combination of factors advanced by the applicant as establishing special or exceptional circumstances, namely (at [15]):

1. The short period of bail sought and the imminence of the appeal to this Court.
2. The conditions the applicant is experiencing in custody and his consequent inability to prepare for the appeal.
3. His need to prepare for other imminent court hearings and his inability to do so under existing conditions.
4. His deteriorating health.
5. His prospects of success on appeal against conviction and sentence.

Next, his Honour turned to the contentions advanced by the applicant with respect to each basis, save for the prospects of success, and intimated that the contentions were either weak or not established by the material that informed his assessment of the same. Following that assessment, prior to considering the prospects of success on appeal, Barr AJ observed (at [34]):

[34] While I appreciate that the Court must look at the aggregate effect of all the matters relied on as constituting special or exceptional circumstances justifying the grant of bail, it is worth noting that, at least where the grounds of appeal are put forward as the only or the principal factor to demonstrate special or exceptional circumstances, an applicant has to show much more than that the grounds seem arguable. It was said in R v Wilson (1994) 34 NSWLR 1 that the applicant must appear “most likely to succeed” (at 6).
[Emphasis added.]

That observation, when read in light of Barr AJ’s consideration of four of the five bases relied upon by the applicant, indicates his reasoning for applying the “likely to succeed” test to the fifth factor relied upon by the applicant, namely, the prospects of success on appeal. As to that factor, Barr AJ held: “They do not strike me individually or collectively as rendering the applicant most likely to succeed” (at [42]).
For completeness, the conclusion of the Barr AJ appears below (at [55]-[56]):

[55] I have considered whether all the matters relied on by the applicant together constitute the necessary special or exceptional circumstances justifying a grant of bail. The applicant’s position is unusual in that apart from his concerns about his health he has an appeal and a fair number of court proceedings to deal with. I do not accept that his state of health is as bad as he contends. Most gaol inmates would not be taking part in complex litigation. However, most people confined to custody find their personal, work and other lives disrupted. Many have to endure the cessation of pursuits important to them. Of the various matters put forward by the applicant as needing to be done during the next six weeks, the preparation of this appeal seems unnecessary and attendance to the various other matters, especially those in the New Zealand Courts and the Federal Court, may be impossible of achievement within a short time.
[56] In my opinion the applicant has failed to show that special or exceptional circumstances exist justifying a grant of bail.

The approach of the Barr AJ in Petroulias, in that respect, mirrors that of Kirby P in Wilson v R. Notwithstanding the applicant’s reliance upon five bases in support of a finding of special or exceptional circumstances, Barr AJ did not apply the arguability test. First, his Honour considered the arguments advanced in addition to the prospects of success of appeal and reached a view, following a collective assessment, as to whether the contentions advanced by the applicant were of substance on the basis of the material before the Court. Secondly, in light of those findings, Barr AJ reached the view that the principal factor on the application advanced by the applicant concerned the prospects of success. Hence, only after that two-tiered consideration, the “likely to succeed” test was applied.

Submissions as to the Disputed Question

Returning the dispute in the present application, the Crown advanced three submissions as the appropriate application of the two tier test.
First, the arguability test is not applied by the mere reliance upon a combination of factors being advanced by the applicant. The lower test is “enlivened” upon the Court’s satisfaction as to the establishment of at least one of the bases relied upon by the applicant in addition to the prospects of success on appeal. In the absence of such a finding, notwithstanding the reliance upon a combination of factors, the prospects of the appeal are rendered essentially the only or principal factor to “demonstrate” special or exceptional circumstances. Hence, the test to be applied to the assessment of the merits of the appeal is that they are “likely to succeed”.
Secondly, in that light, the Crown submitted: the lower test as to the merit of the appeal is “appropriately reserved for matters where the Court is satisfied that there are a combination of factors which establish special or exceptional circumstances”. Reliance, in that respect, was placed upon the judgment of El-Hilli at [13] and [26]; Wilson v R; and Petroulias at [34].
Thirdly, and accordingly, the application of the test as to the merits of the appeal should occur after rejection (or acceptance if such were the case) of all other factors relied upon by the respondent to demonstrate special or exceptional circumstances.
In reply, the respondent contended:

The application of the higher test as opposed to the lower test is “not necessarily a hard and fast rule”. Reliance, in that respect, was placed upon the following passage of El-Hilli at [26]:
[26] In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulias v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is “most likely” to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v The Queen at 310-311; Marotta v The Queen at 266; R v Velevski at [24]-[25].

[Emphasis added by the respondent.]

As to the Crown’s reliance upon Wilson v R, the respondent contended there has been significant development in the approach taken by the courts since. The crux of that development is such that where a combination of factors are relied upon by a person, the appropriate test to apply is that the appeal is arguable or enjoys reasonable prospects of success.
As to the authorities that refer to the test to be applied, it was submitted by the respondent that they refer to the strength of the appeal being “advanced”, “relied upon”, “put forward” as part of a combination of factors, rather than “established” or “determined” to be part of a combination of factors. Reference, in that respect, was made to El Khouli at [21]-[26] and the language used, therein, in a discussion of authority. Reliance was also placed on the following passages of Brown at [28] and [33]:

[28] First, a distinction appears to have been drawn on the authorities, when the grounds of appeal are advanced as a factor demonstrating special or exceptional circumstances, between cases where that factor was relied upon in isolation, and those where the applicant relied upon that factor in combination with other factors including whether the applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal.
…
[33] Secondly, where the ground of appeal is put forward in combination with other factors to demonstrate special or exceptional circumstances, the relevant criteria in assessing the merits of the appeal would appear to be whether the grounds relied upon by the applicant in the appeal were reasonably arguable or that there were reasonable prospects for the appeal.

Further, it was submitted, the only way in which the appropriate test as to merits on the appeal may be determined is by reference to what is relied upon by the person seeking bail.
The respondent contended that the Crown’s submissions invite the Court to:

(a) First, determine whether special and exceptional circumstances exist by virtue of a combination of factors, or the sole factor of the strength of the appeal; then
(b) Second, apply the appropriate ‘test’, being either the ‘higher’ or ‘lower’ test, depending on the finding made above at (a).

If that summary of the Crown’s contention was accepted as accurate, it was submitted that such an approach is erroneous for the following reasons:

In order to be satisfied as to “whether special and exceptional circumstances exist by virtue of a combination of factors, or the sole factor of the strength of the appeal”, the Court would need to embark upon an assessment of the merits of the appeal in accordance with one of the two applicable tests.

The Court cannot reach a conclusion with respect to “whether special and exceptional circumstances exist by virtue of a combination of factors, or the sole factor of the strength of the appeal”, without first applying the appropriate test as to merit in the appeal.

I interpose to observe that submission must be rejected as it has not accurately captured or responded to the Crown’s contention, namely, “the application of the test as to the merits of the appeal should occur after rejection (or acceptance if such were the case) of all other factors relied upon by the respondent to demonstrate special or exceptional circumstances”. The consideration as to the prospect of success of the appeal is a subsequent step.
As to the arguability test being “appropriately reserved” for when the Court is satisfied that there are a combination of factors which establish special or exceptional circumstances, it was submitted by the respondent, that there is no basis in authority for restricting the Court’s determination in that way. On the contrary, the respondent submitted that the application of the “likely to succeed” test is appropriately reserved for matters where the merits of the appeal are advanced as the only factor in establishing special or exceptional circumstances. The establishment of special or exceptional circumstances in any case, in and of itself, is already a high threshold for an offender to meet.

Conclusion: Disputed Question – Test to be applied in Assessing Merits of the Appeal Ground

Whilst the language employed in a number of the authorities used expressions such as “advanced”, “relied upon” or “put forward” to introduce the reliance upon the prospects of the appeal as part of a combination of factors, a careful analysis of the line of authority referred to above ultimately supports the position contended for by the Crown in that respect.
As illustrated in the above discussion of the authorities, it is clear that, when the factors relied upon in conjunction with the prospects of the appeal to demonstrate special or exceptional circumstances for the purposes of s 22 of the Bail Act are found to have little weight or lack substance, the arguability test is not enlivened with respect to Court’s assessment of the merits of the appeal. To consider the language employed in the judgments concerning appeals bail devoid from broader context in which each application is considered, provides a false impression of the tests applied in those matters. Generally speaking, the authorities demonstrate that where there is one other factor relied upon in combination with the prospects of success of the appeal, which factor is also found to have merit or substance to demonstrate special or exceptional circumstances, then the arguability test should be applied to the consideration of the merits of the appeal as part of the overall determination as to whether special or exceptional circumstances exist.
Further, it may be observed, a strict application of the respondent’s position would produce the odd result that the Court’s determination as to whether or not the arguability test was to be applied was determined by the mere reliance by a party upon additional or other factors, in conjunction with the prospects of success on appeal, irrespective of their substance.
Hence, I accept, with respect, the conclusion reached by Hamill J in El-Hilli at [26] and reject the contentions of the respondent in this respect.

FACTORS RELIED UPON TO ESTABLISH SPECIAL OR EXCEPTIONAL CIRCUMSTANCES

The respondent relied on the following matters, in combination with its contentions vis-à-vis the prospects of success on appeal, to establish special or exceptional circumstances:

the respondent’s demonstrated compliance with bail and attendance at court when required, even after conviction, with no evidence whatsoever of there being a risk of flight;

the respondent’s demonstrated strength of his community ties;

the respondent’s limited record;

the respondent’s lack of risk as it relates to any further offending or compromising any prospective trial;

the strict bail conditions already in place;

the respondent’s youth; and

the time spent in custody before determination of the appeal as compared to the non-parole period imposed.

Consistently with the aforementioned principles, prior to turning to my assessment as to the merits of the appeal, I will consider each of the factors relied upon by the respondent, after a brief summary of the Crown’s general submission on those factors.
With the exception of the respondent’s youth, the Crown advanced a global submission that the balance of the considerations relied upon by the respondent were properly characterised as unacceptable risk submissions and did not assist the respondent in demonstrating special or exceptional circumstances. The Crown contended that in and of themselves, those considerations would never amount to special or exceptional circumstances or finding that would contribute to a ground of special or exceptional circumstances in the absence of some other feature or factor to combine them with.
The Crown contended, with respect to the present application, that the principal factor relied upon to demonstrate special or exceptional circumstances was the prospects of success on appeal. As such submissions were primarily advanced with respect to the prospects of success, with the Crown contending that the applicable test is “likely to succeed” and that, on that basis, the respondent could not establish special or exceptional circumstances.
The factors relied upon by the respondent to demonstrate special or exceptional circumstances are reviewed below seriatim, although this approach is conducted for convenience of analysis, the Court being mindful that the respondent relied upon these factors in combination with each other, including arguments as to the merits of the appeal.

The respondent’s demonstrated compliance with bail and attendance at court when required, even after conviction, with no evidence whatsoever of there being a risk of flight

The respondent was on bail:

before the trial;

during the trial;

after the trial, before sentence, for a period of approximately eight weeks;

since the date of sentence, being a period of approximately four weeks; and

since the date of the detention application being filed in this Court, being a period of approximately three weeks as at the filing of the respondent’s submissions on this application (a portion of the aforementioned four week period since sentence).

Counsel for the respondent submitted:

The respondent has always attended court when required, even after conviction and with the prospect of an inevitable custodial sentence being imposed upon him. In the crucial times when one might except an accused or offender to be a flight risk, there has never been an attempt to flee nor avoid court and court-imposed obligations. This has been so even in light of the applicant having put the respondent on notice of a detention application to this Court. As a result, there have been multiple tests of the respondent’s commitment to his bail conditions and attendance at Court. This commitment has not wavered. The bail conditions imposed upon the respondent thus far has achieved the primary purpose of bail; securing the attendance of a person before court when required.

As to the respondent’s reliance upon compliance, the Crown contended there is nothing special or exceptional about compliance with the law. The high likelihood that the applicant will answer bail has regularly been assumed but found not to be sufficient to constitute special or exceptional circumstances; reference, in support of that submission, was made to the observations of Basten JA in Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103 (“Cassaniti”) at [19].

The respondent contended that compliance with conditions of bail “cannot be dismissed as simply an expectation of compliance with the law”. Reference, in that respect, was made to a judgment of Garling J in R v Vaziri [2016] NSWSC 1283 at [52]. In that matter, Garling J observed that one of the matters considered part of special and exceptional circumstances in that case was:

At all times up until the imposition of the final sentence, the applicant was granted bail, and complied with all of his bail conditions. This time on bail included the applicant travelling overseas and returning in order to comply with the requirements to appear at Court. At all times the applicant has appeared at Court when required.

The respondent submitted that this factor “is only strengthened in favour of the respondent, given the timeline of events incentivising flight”.
Whilst the respondent has established a firm basis to demonstrate that the respondent is likely to comply with bail, that does not overcome the consideration alluded to by Basten JA in Cassaniti by his Honour’s reliance upon the judgment of Brennan J in Chamberlain v The Queen (No 1) (1983) 153 CLR 514 as follows (at [19]):

[19] As appears from these authorities, the high likelihood that the applicant will answer bail has regularly been assumed, perhaps as a necessary precondition to bail, but found not to be sufficient to constitute special or exceptional circumstances. The principle identified by Brennan J in Chamberlain (No. 1) as underlying the test was expressed as follows at p 519:
“To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately. … The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.”

A similar consideration arose in R v Thomas (Unreported, Supreme Court of NSW, Campbell J, 4 June 2014), Campbell J made the following observation:

…it is very important to bear in mind that the reason underpinning the special rule in relation to appeals bail is that when a person has been sentenced after a conviction normal legal process has been followed.
The granting of appeals bail may give rise to the impression that the conviction based upon the person’s plea of guilty and the sentence imposed by the sentencing court is somehow provisional until the application has exhausted all of his rights to appeal offered by the legal system.
One must be careful not to give that impression.

That is not to say that the fact of the respondent having been previously granted bail is not relevant to the consideration of whether there are special or exceptional circumstances in the case of appeals bail.
The decisions in both Marotta v The Queen and R v Velevski arose in the context of an application for appeals bail pending appeal to the High Court. In both judgments, the circumstances of the applicants having been previously granted bail “pending trial” was relied upon by the applicant as a factor in determining whether special or exceptional circumstances had been established. It may be noted, in R v Velevski, Barr J simply confirmed, in the course of his consideration of the application, that such a factor existed; his Honour did not suggest any weight had been given to it, whereas in Marotta v The Queen, Callinan J expressly identified the factor as one of the “reasons for my decision” (at [18]), but emphasised that it was “the combination which I have referred and the facts of the cases before me that demonstrate sufficiently exceptional circumstances to warrant bail” (at [19]). The emphasis upon the collective effect of the factors referred to by Callinan J, reflects the necessary caution to be taken, as mentioned above, when considering the individual weight to be given to such factors as opposed the combined effect. Nonetheless, when read in conjunction with the High Court’s observations in Chamberlain v The Queen (No 1), in and of itself, the previous grant of bail pending appeal would not normally attract great weight.
In the present matter, the fact of the applicant having been previously granted bail is of some, but not substantial, weight. The significance of this factor will ultimately have to await collective assessment of the factors found to be of substance. As to the issue of compliance with bail, consistent with authority, is given very little weight.

The respondent’s demonstrated strength of his community ties

The respondent resides with his parents and grandparents, who are supportive and pro-social. The respondent has the support of other members of his family who provided letters to the Court in his sentencing proceedings. He has the strong support of his mother, who gave sworn evidence in the sentence proceedings and whose evidence was tested in cross-examination.
As this consideration falls squarely within the parameters of the assessment under s 18, I accept the submission advanced by the Solicitor Advocate for the Crown, Ms A Weir, that this factor is of little weight to the Court’s determination under s 22. I accept the observations of Hamill J in El-Hilli at [28]:

[28] The list of factors in s 18 is specifically brought into s 22 by sub-s (3). However, those factors are subject to sub-s (1), that is, the requirement for special or exceptional circumstances. In a case where the appeal is from a conviction on indictment, the question is whether there are special or exceptional circumstances justifying the grant of bail.

The respondent’s limited record

The respondent has a limited record and has never served a custodial sentence. The respondent’s record consists only of two driving matters. The respondent submitted that the Court would accept that he is not a serial offender, nor the type of offender who would pose any risk to the community while on bail pending appeal.
This factor attracts similar observations as the previous factor, save that the fact the applicant faces his first time in custody is a matter which may contribute to any weight attached to the respondent’s youth in considering whether special or exceptional circumstances have been established.

The respondent’s lack of risk as it relates to any further offending or compromising any prospective trial

There is no evidence that the respondent is a risk of further offending or compromising any prospective trial, in terms of disposing of or tainting evidence. The respondent has been assessed as a low risk of re-offending by psychologist Clair Baker.
As was observed by Hamill J in El-Hilli, with respect to the considerations under s 18, which are brought in to s 22 by subs (3), “those factors are subject to sub-s (1), that is, the requirement for special or exceptional circumstances” at [28]. In the circumstances of the present matter, in and of itself this factor attracts little weight but must await further consideration in light of the combination of factors relied upon by the respondent.

The strict bail conditions already in place

The respondent’s current conditions are as follows:

To be of good behaviour;

To reside at his home address (102 Wentworth Ave, Pagewood NSW 2035);

To report to Mascot Police Station daily between 6am-10pm;

To comply with a curfew from 10pm-6am;

An enforcement condition: to present himself at the front door of his premises to confirm compliance with his curfew;

To not have contact, including via a third party, with the complainant;

To surrender his passport (now surrendered);

To not approach any international point of departure; and

Prosecute his appeal by cooperating with his legal representatives.

It was submitted by the respondent that the bail proposal for which the applicant is subject to is “comprehensive and strict”. Whilst such a submission will have some weight with respect to the question of risk, in the context of the Court’s present determination under s 22, the stringency of the current bail conditions carries little weight.

The respondent’s youth and the time spent in custody before determination of the appeal as compared to the non-parole period imposed

In light of the way in which submissions were advanced by the respondent, in this respect, I shall consider the respondent’s youth together with the time spent in custody before determination of the appeal (when compared to the non-parole period imposed) together.
The respondent is relatively young, namely, 21 years old. Counsel for the respondent contended that the fact of his youth “is relevant insofar as the impact of any incarceration upon him before the appeal is heard”. That contention was supported by the following submissions:

Should the appeal be successful and the respondent ultimately acquitted of the offences, a man of relatively youth and inexperience would have been exposed to a custodial setting, including exposure to criminal inmates.

The impact of that exposure upon a young man is irremediable on appeal, even in the case of an appeal determined in his favour.

The respondent accepted the applicant’s submission that there are dates available for hearing in May 2021. It follows, however, that should the respondent’s bail be revoked, the respondent would likely spend approximately 6-7 months of his 18 month non-parole period in custody, being one-third of the non-parole period.

The Crown submitted that serving a period of 6 months from a non-parole period of 18 months does not equate with a finding that the non-parole period would be “substantially expired” as at the time of the hearing of the appeal consistently with authorities in which that factor was taken into account in considering whether special or exceptional circumstances had been established. Reference, in that respect, was made to El-Hilli and Samandi.
In El-Hilli, Hamill J provided the following summary of authorities addressing the consideration of “substantial” in the context of the amount of sentence served:

[18] In R v O’Neill Mathews J said that “one of the matters which has long been treated as constituting special circumstances under this section is the circumstances of the applicant who will, by the time his appeal is heard and disposed of, already have served a substantial portion of his sentence.” In that case, an identical question of principle (the proper test of dangerousness in unlawful and dangerous act manslaughter) was pending before the High Court: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. This meant that Mr O’Neill’s appeal would inevitably be delayed, probably beyond his release date. That combination of circumstances persuaded Gleeson CJ, Hunt CJ and CL and Mathews J that there were special or exceptional circumstances justifying the grant of bail.
[19] In Robinson v R, Gaudron J took the view that the fact that the non-parole period of a sentence might expire before the appeal decision was not sufficient by itself to constitute “exceptional circumstances such as to invoke the inherent jurisdiction of this court”. In that case, “no question arises as to the need for liberty pending appeal so as to prepare the appeal and, on any view, a substantial amount of the sentence would remain to be served in custody or on parole”. The application was heard in 1991 and the sentence was not due to expire until 1995, although there was some likelihood of conditional release in 1992.
[20] In Peters v The Queen Dawson J granted bail when the applicant was due to be released before the hearing of the special leave application and where the “application for special leave [was] clearly not hopeless and in my view there is a reasonable prospect that it will succeed”.
[21] In Marotta v The Queen Callinan J granted bail for the following stated reasons:
…
4. Substantial parts of the custodial sentences are likely to have been served and possibly completed in one case by the time this Court's decisions are published.

In El-Hilli, Hamill J held (at [54]):

[54] It is also the case that a substantial part of Ms Melville’s non-parole period will have expired by the time the appeal is disposed of. Because the sentence is less than three years, she is entitled to be released at the conclusion of her non-parole period: s 50(1) Crimes (Sentencing Procedure) Act 1999. In the course of argument and in consultation with the list Judge and Registrar of the Court of Criminal Appeal, it became clear that the Court was in a position to hear the appeals on 30 July 2015 or 11-12 August 2015. In the end the case was listed for hearing on 12 August 2015. That alleviates this concern to some degree although, given the amount of material, there is little doubt that the Court hearing the appeal will need to reserve its decision for some time after 12 August 2015.

Further, in the context of ss 17 and 22(3), he observed (at [59(h)]):

(h) As to length of time she will be in custody if bail is refused, if the appeal is heard in late early August, she will have spent a total of around seven to eight months in custody pending the hearing of the appeal. At this point she has spent just under six months in custody. Refusal of bail will result in her spending a further two months in custody pending the hearing of the appeal.

Hamill J held (at [61]):

[61] After anxious consideration, and taking the various matters relied on by Ms Melville at their highest, I am not satisfied that there are special or exceptional circumstances justifying the grant of bail in Ms Melville’s case. If the anticipated delay in hearing the appeal were longer I may have taken a different view, given the proximity of her release date. However, the appeal can be heard in the next two months and has been listed on 12 August 2015. If the Court seized of all of the material considers that there is merit in her appeal and if there is likely to be a lengthy delay in delivering the judgment, the question of bail could be revisited at that time.

In Samandi, the Court, relevantly, observed (at [33]-[34]):

[33] Mr Samandi also raises the question of his ability properly to prepare for his appeal in his present custodial situation. As difficult and unfortunate as may be the position in which he finds himself even, or perhaps particularly, as an unrepresented party, these are matters that confront all inmates in his position. We do not consider that these difficulties or his custodial situation are matters that qualify as special or exceptional circumstances standing alone. However, for the reasons above, they should be taken as part of the combination of factors to be matters of at least some significance.
[34] In summary, we are of the view that Mr Samandi has established that there are special or exceptional circumstances that justify his release. That is because it cannot be said that his sentence appeal is not reasonably arguable or that there are not at least some reasonable prospects of success, taken in combination with the fact that Mr Samandi’s appeal is listed for hearing on 14 August 2020, his non-parole period expires on 22 November 2020 and his custodial status is adversely affecting his ability as an unrepresented litigant properly to prepare for his appeal.

I accept the submission advanced by the Crown that the relevant consideration in this respect is whether the non-parole period to which the respondent was sentenced and is now the subject of an appeal will have expired or substantially expired before the hearing of the appeal.
During oral submissions, the respondent properly conceded (having regard to that stated principle) that the timing of the appeal and delay therein were not in and of themselves exceptional. It was conceded that a delay amounting to one-third of his non-parole is not the majority of the non-parole period imposed upon him. However, counsel for the respondent contended that the significance of the period in custody is “amplified by virtue of his youth and also by virtue of his being someone who has never been in custody before”. In that light, the time spent in custody, it was contended, is substantial.
It was agreed that the appeal brought by the respondent would most likely be heard in May 2021. By that time, the respondent will have spent, in the absence of bail, 6 months in custody pending the hearing of his appeal. At the time of this judgment, the respondent has spent no time in custody, having been granted bail pending appeal immediately following the imposition of sentence on 9 October 2020.
I do not consider those circumstances constitute special or exceptional circumstances either in terms of the period of time the respondent will spend in custody until his appeal or in consequence of the period of delay from the hearing of the detention application and the hearing of the appeal. Counsel for the respondent contended that the fact the respondent was young and had not been in custody before added an additional dimension to the consideration to the factor of his period in custody until the hearing of his appeal. However, neither the respondent’s relative youth or the fact of his first incarceration result in the period of his custody prior to his appeal hearing being substantial or significant as described in the above authorities.

Conclusion: Factors other than the Prospects of the Appeal

Overall, I do not consider that the combination of the period in custody or delay before the appeal hearing, the youth of the respondent and this first occasion of his imprisonment properly result in a conclusion that the respondent has demonstrated either singularly or by the combination of those factors (or all factors relied upon by the respondent other than the prospects of success of the appeal), the existence of special or exceptional circumstances.
That conclusion is not diminished by virtue of the fact the respondent has received bail until the date of this judgment.
That is not the end of the Court’s assessment as to whether special or exceptional circumstances have been established as the merits of the appeal is a factor substantially relied upon by the respondent in combination with the above factors. That conclusion does have implications for the assessment of that factor.

ASSESSMENT OF MERIT OF PROPOSED APPEAL

In light of the Court’s findings with respect to the other factors brought by the respondent, in turning to consider the merit of the proposed appeal, the relevant consideration in the evaluation of the application is whether the appeal is likely to succeed. The respondent does not need to establish that the appeal will inevitably succeed: El-Hilli at [24].
In Obeid v R (No 2) [2016] NSWCCA 321 at [17], the Court of Criminal Appeal (per Bathurst CJ, Hoeben CJ at CL and R A Hulme J) observed that it is inappropriate for the Court to say much in detail about an offender’s prospects of success on appeal when determining a bail release application when the hearing of such appeal is pending. This is because the argument on such an application can never be as fully developed as it will be, and the Court is confined to reaching only a broad overall view of an offender’s apparent prospects. See also R v Ambury [2017] NSWCCA 115 at [36].
In R v Paul Campbell (a pseudonym), Hamill J observed that it is a notoriously difficult thing for a judge sitting in the bail court to make a determination as to the merit of a proposed appeal, noting for one that the Court will not have the benefit of submissions that will be made on behalf of the Crown.
Upon the grounds of appeal set out in the submissions of the respondent (noting an appeal is yet to be filed), in order for the respondent to succeed on his conviction appeal, he must establish either:

It is useful to set out the specific context in which the relevant principles arise in Pell (at [37]-[39]):

[37] … the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
[38] It should be understood that when the joint reasons in M v R spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

An unreasonable verdict ground is to be determined by the CCA upon a consideration of the whole of the evidence in the case. As Davies J stated, in Williams at [24]), “[w]hether a verdict is unreasonable is a matter to be determined by the Court of Criminal Appeal on a consideration of the whole of the evidence in the case. It is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal”.
His Honour continued by discussing the difficulty of assessing this ground without recourse to the full record of the trial and made the following observations (at [25]):

[25] I did not have the full record of the trial; extracts only were provided. In any event, as I have said, it would not be appropriate for me to assess all of that evidence to determine if the jury’s verdict was unreasonable. In most cases where the question of bail is being considered pending an appeal based on an unreasonable verdict ground, the judge hearing the bail application will not be able to do other than to say that the appellant has an arguable case that the verdict was unreasonable. That is because, unless the evidence is all one way or there is no or insufficient evidence to support a finding, the bail judge will not have a sufficient grasp of the factual detail to consider whether the jury ought to have had the sort of doubt that would have resulted in a not guilty verdict: M at 494.

I also note the observations of Hamill J in El-Hilli (at [34]), however imperfect a foundation for an assessment of the merits of the appeal, an assessment must be made of the grounds in order to properly deal with the applicant’s reliance on the merits of the appeal to demonstrate special or exceptional circumstances, albeit one which does not pre-judge the argument the applicant intends to advance to the Court of Criminal Appeal (see Wilson at [6]) or purport to constitute something in the nature of the hearing of the appeal proper.
In the present matter, the Court does not have the benefit of the full record of the trial or the benefit of hearing the evidence given by witnesses at the trial. The jury had that benefit and reached the conclusion it did, namely, two convictions. The Court has only a selection of extracts from the transcript relating to the closing addresses and summing up, as well as a summary form of aspects or partial extracts of the evidence set out in the bundles provided by the parties. This Court does not have the benefit of reading and/or hearing the complete evidence of the complainant in the context of examination-in-chief and cross-examination, the entirety of the controlled call and the evidence of all other witnesses called in the proceedings.
On the limited material before the Court, I do not consider that it is likely that the respondent will succeed in the appeal hearing as to ground 1, having regard to the aforementioned principles attaching to appeals bails and principles applicable in a criminal appeal where an attack is made upon a jury verdict as being unreasonable.
I have closely examined the respondent’s contentions on this point including the draft submissions prepared for the appeal but there are features pointing to the strength of the Crown case on the appeal as follows:

There is no dispute that the respondent had sexual intercourse with the complainant by means of digital and penile penetration at night in a park.

The respondent and complainant were not dating at the time, things were different between them and the respondent was aware of this fact before engaging in sexual intercourse.

The complainant conceded the following:

First, during cross-examination, the complainant accepted that she said the phrase. She gave evidence that it was intended as a joke but also accepted that she could not account for when she said the phrase. The jury may form a view the phrase was intended to be humorous, including in that context, the fact that the respondent may have been desirous of intimacy.

Second, she accepted that she had come to sit on the respondent’s lap. However, she gave evidence that she was placed there by the respondent “apparently without opposition” (quoting the draft submissions).

Third, the complainant did not deny that she moaned at some stage during the intercourse.

It is true that some of those concessions arose in cross examination, but they may have also contributed to views by the jury as to the credit of the complainant.

Overall, the jury had the opportunity to evaluate the complainant’s explanations for certain conduct which included, inter alia, that she said the phrase as a joke, that the respondent put her on his lap (without opposition), and that she never kissed him back and she was trying to avoid the kisses.

The jury also had the opportunity to evaluate, on the Crown’s case, circumstances including on the night of offending, the complainant had stated they were no longer in a relationship, an absence of consent in light of the evidence, which included, inter alia: she had said “no” and “stop” to the respondent multiple times; she had questioned the respondent, “why would you do that”; and made immediate complaint to her friend and various family members about the offences. The intercourse in count 2 apparently stopped because the complainant was able to free her hands and move away.

Whilst the draft submissions referred to “conspicuous omissions” by the complainant in the controlled call, that submission was advanced in these proceedings with no reference to whether or not those omissions were in fact put to the complainant at the trial and whether or not she gave evidence denying the same.

The Crown convincingly contended that these are suggestive of the complainant’s lack of consent and the respondent knew she was not consenting (to which may be added the respondent’s statement to his friends after the sexual intercourse).

Second Ground of Appeal: The directions in respect of reasonable grounds for belief in consent gave rise to a miscarriage of justice

Submissions of the Respondent

With respect to the second ground of appeal, the respondent submitted that a miscarriage of justice arose from the directions given with respect to s 61HE(3)(c) of the Crimes Act, for the reasons set out in the draft submissions, which are set out below.
Section 61HE(3)(c) is the relevant provision for the purposes of this ground. Section 61HE concerns consent in relation to sexual offences, including offences under s 61I. Subsection (3) is extracted below:

(3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if—
(a) the person knows that the alleged victim does not consent to the sexual activity, or
(b) the person is reckless as to whether the alleged victim consents to the sexual activity, or
(c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

At the outset of submissions, it was accepted that r 4 of the Criminal Appeal Rules (NSW) is attracted by this ground. That rule is extracted below:

4 Exclusion of certain matters as grounds for appeal etc
No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

As to the application of the rule, the respondent submitted: “[t]his rule is not insurmountable nor an impediment to a ground that otherwise enjoys reasonable prospects of success”. The respondent contended that the ground of appeal as articulated by counsel briefed on the appeal, as appears in the draft submissions at paras 39-49, is one where leave would most likely be granted by an appellate court.
Turning to the draft submissions, with respect to this second ground, the following was submitted:

40. The Crown case as to consent was run on two potential bases: either that the accused knew that the complainant was not consenting to sexual intercourse, or, the accused had no reasonable grounds for believing that the complainant was consenting to sexual intercourse.
41. Given the jury’s verdicts, it is clear that they concluded beyond reasonable doubt that the complainant had not consented to intercourse but this conclusion would not have required the jury to have accepted as reliable the whole of the complainant’s evidence about what occurred in the lead up to intercourse including, in particular, the extent to which she might have given the appellant to understand that she was not consenting or the extent to which what happened, had or might have conveyed that message.
42. In order to prove the second basis for knowledge as to lack of consent, the Crown was required to prove beyond reasonable doubt that there were no reasonable grounds for the accused to believe that the complainant consented. The belief is that of the accused at the time, and not of the hypothetical reasonable person in the position of the accused at the time. This requires a careful distinction that must be drawn to the jury’s attention.

The draft submission indicates that the bases for the second ground are as follows:

43. The trial judge’s directions in respect of reasonable grounds for a belief in consent did not make it clear that belief in consent was not a reasonable person test. It is not contended that authority of this Court compels of such a direction, albeit that it is ordinarily given, however coupled with an absence of direction identifying discretely those factors which were capable at law of underpinning a reasonable, meaning rational belief in consent, it is submitted the directions gave rise to miscarriage.
44. In Pemble Barwick CJ said (at 117-118):
…the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.”

45. There can be no doubt that the trial judge’s summation was focused upon fairness to the parties, however in the absence of any assistance as to what “reasonable” grounds meant, or did not mean, and no direction as to the possible use of the certain facts as underpinning such a belief as a matter of law, the jury may well have deliberated upon the basis that reasonable grounds required an evaluation as to whether the appellant’s belief was reasonable.
46. In Lazarus v R [2016] NSWCCA 52, Fullerton J stated:
“…properly understood, s 61HA(3)(c) does impose an objective test, in the sense that (ignoring the onus of proof) the grounds which might lead to a belief of consent must be objectively reasonable. However, this is not the equivalent of the trial judge’s direction that it was for the jury to “consider whether such a belief [that the complainant was consenting] was a reasonable one”. The latter formulation implies that the jury should ask what a reasonable person might have concluded about consent, rather than what the accused himself might have believed in all the circumstances in which he found himself and then test that belief by asking whether there might have been reasonable grounds for it. In many such contested cases, perhaps all, there might be a reasonable possibility of the existence of reasonable grounds for believing (mistakenly) that the complainant consented and other reasonable grounds suggesting otherwise. A reasonable person might conclude one way or the other but the statutory test is whether the Crown has proved the accused “has no reasonable grounds for believing” that there was consent.”

[Footnotes omitted.]

The draft submissions also set a lengthy extract of the directions provided by the trial judge in the summing-up:

…you may decide, on the basis of the evidence led in the trial and relied on by the accused, that he might have believed that the complainant was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the accused honestly held it, and, if so, whether the Crown has proved beyond reasonable doubt that there were no reasonable grounds for the accused that the complainant consented to the sexual intercourse with him.
Therefore, the Crown must prove beyond reasonable doubt one of two facts, before you can find the accused guilty: either (a) that the accused did not honestly believe that the complainant was consenting; or (b) that, if he did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented to the sexual intercourse. Here, I remind you that the Crown does not say in this case that the accused did not have such an honest belief; and it says that if he did, there were no reasonable grounds for it.
It is for the Crown to prove that the accused had a guilty state of mind. It must eliminate any reasonable possibility that the accused did honestly believe, on reasonable grounds, that the complainant was consenting. Unless you find beyond reasonable doubt that the Crown has eliminated any such reasonable possibility, then you would have to find that this third element of the offence is not made out, and return a verdict of not guilty of this charge.
In determining whether the Crown has proved that the accused knew that the complainant was not consenting to intercourse with him, you must take into account what steps were actually taken by the accused to ascertain whether the complainant was consenting to intercourse. Here, the Crown says that either the accused knew that the complainant was not consenting to sexual intercourse with him, or that, if he did not, he had no reasonable grounds for believing that she was consenting. The Crown does not say that if the accused did not know the complainant was not consenting, he had no honest belief that she was. But it says that if he had such an honest belief, there were no reasonable grounds for it.
The accused says that the complainant did consent to sexual intercourse, but then and if contrary to his submissions she did not, then he honestly believed that she was consenting to sexual intercourse with him, and that there were reasonable grounds for this belief.
You must remember, however, that it is not for the accused to prove this. It is for the Crown to prove beyond reasonable doubt that the accused knew that the complainant did not consent, or that if he did not, the accused had no reasonable grounds for believing that she was consenting. Now, ladies and gentlemen, that is the end of this sheet.

Reference was also made to the trial judge’s summary of the defence case, with the following passage being extracted: “The accused says that you would accept that the complainant was consenting, and that this is what the accused believed; and that the basis for that belief was entirely reasonable”.
Finally, to conclude submissions with respect to ground 2, the following submissions appeared:

49. It cannot be known whether the jury found that the appellant held out no belief in consent as distinct from concluding as a consequence of the impugned directions that it was not reasonable to think that she was consenting. The jury may well have deliberated upon the basis that reasonable grounds required an evaluation as to whether the appellant’s belief was reasonable. The absence of any further direction or clarification resulted in a miscarriage of justice.

Reliance, in that respect, was placed upon the authority of GBF v The Queen [2020] HCA 40, an example in which an appeal based upon an impugned statement was allowed.

Crown Submissions

The Crown advanced the following submissions.
First, in terms of the second ground of appeal, the respondent relies on the failure of the trial judge to provide a direction to the jury, which he was not bound at law to provide. Counsel were provided with the opportunity at the time to seek any correction or additional directions to the jury. Counsel for the offender did not raise any issue after the completion of the trial judge’s summing-up.
Secondly, this ground of the appeal must be considered against the background of there being no complaint made about these directions at trial. The offender will require leave to raise this ground of appeal: see r 4 of the Criminal Appeal Rules. The absence of any objection indicates that in the atmosphere of the trial, the directions given were complete and did not give rise to a miscarriage of justice.
In support of those submissions, the Crown set out the submissions made by the parties with respect to s 61HE(3)(c), to which I now turn.

At trial, the Solicitor Advocate for the Crown, on 10 August 2020 gave the closing address to the jury. During the course of that address, the Crown indicated the following:

…I'm going to address you about the support for the complainant's account that you can find in other evidence that you have heard. This is important in relation to the second element that the complainant was not consenting and also to the third element that the accused knew she was not consenting, or he had no reasonable grounds for believing that she was.
… When he did those things, members of the jury, he did so knowing that [the complainant] was not consenting; or you might find that he had no reasonable grounds for a belief that she was.

After the closing address, defence Counsel for the offender asked the Crown to clarify with the jury that the two grounds relied upon were (a) actual knowledge and (c) that there were no reasonable grounds for believing that the complainant was consenting.
An exchange occurred between the legal representatives and his Honour, during the course of which defence Counsel for the offender indicated there was “two grounds that can make up that version of element, to do with consent being (3)(c) in the legislation, there’s two bases, that the accused did not honestly believe that [s]he was consenting, or that if he did have the honest believe [sic] there was no reasonable grounds for believing and the Crown doesn’t rely on the first”.
Following discussions, the following clarification was made to the jury:

[CROWN:] Lastly, and this is not a correction but I just want to make it abundantly clear what it is that the Crown relies on, in terms of the third element that you have to be satisfied for. The third element that the Crown relies on we do so that the accused knew that [the complainant] was not consenting, or that he had no reasonable grounds for a belief that she was. So I’m just going to say that again: Either he did these things knowing that [the complainant] was not consenting, or that he had no reasonable grounds for a belief that she was. Thank you, your Honour.
HIS HONOUR: Your happy with that, Ms Khalilizadeh?
KHALILIZADEH: Yes.

Defence Counsel, in their closing made the following submissions:

… And what you would accept, members of the jury is that she was consenting and that's what he believed, and the basis for that belief was entirely reasonable. … Members of the jury, you'd be satisfied that that was an honest answer and it was a reasonable answer in the circumstances, and it was a reasonable basis or a reasonable ground for his belief that she was not only consenting to sexual intercourse but was suggesting it.
… Members of the jury, you would accept that he did say those words, that she did not give him a kiss anywhere in response, and again this is another entirely reasonable ground for his belief that she was consenting to the sexual intercourse.
… Mr Rodriguez thought, based on her words and her actions, that this was just like the previous times and that she was consenting. Mr Rodriguez believed she was consenting and the belief for that was entirely reasonable.

After some discussion, defence Counsel made the following correction:

I also need to make a correction to something that I said to you that was very important. The correction that I need to make is only one word, but it’s a very important word. I’m not going to repeat what I said, but in the form that you need to know and take down.
It is for the Crown to prove beyond reasonable doubt that she was not consenting, and that he knew she was not consenting, or that he had no reasonable grounds to believe that she was consenting. Nothing further, your Honour.

In the summing-up, his Honour said the following:

the Crown does not say that if the accused did not know that the complainant was not consenting, he had no honest belief that she was. But it says that if he had such an honest belief, there were no reasonable grounds for it.

In light of those submissions as to the steps taken with respect to closing submissions and the directions to the jury in the summing-up, the Crown contended “it was clear that it was not the offender’s belief that was challenged, and it was not open for the jury to deliberate upon the basis that reasonable grounds required an evaluation as to whether the offender’s belief was reasonable”.
During the course of oral submissions, the Crown mentioned to the Court the recent decision of the High Court in GBF v The Queen. In that matter, there was an impugned statement by the trial judge, essentially, addressing the issue of the accused not giving evidence and his right to silence. The appeal was allowed and the matter was sent back. Reference made to [19] and [25], which are extracted below:

[19] … in circumstances in which it was incumbent on the appellant to demonstrate that the impugned statement had occasioned a miscarriage of justice, the failure of either counsel to seek a redirection was against a conclusion that the integrity of the trial had been compromised.
…
[25] This is not to suggest that the trial judge’s charge is not shaped by the way in which the trial is conducted and the issues that are live for the jury’s determination. The fact that defence counsel does not seek a direction may support a conclusion that in the context of the trial the direction was not required. The fact that defence counsel does not seek a redirection may support a conclusion that in the context of the charge as a whole a challenged statement does not bear the interpretation sought to be placed upon it on appeal.
[Footnotes omitted]

Returning to the present matter, as to the context in which the purported impugned statement arose in the trial, the Crown submitted: “It was settled between counsel prior to the giving of the directions. But it was not a direction that was sought and so it was not an omission by the trial judge, and after the summing-up there was no further direction sought by either counsel”.

Consideration: Merits of Ground 2 vis-à-vis Appeals Bail

As r 4 applies to the grounds of appeal, it is convenient to refer to the principles to be applied which were summarised in Roos v R [2019] NSWCCA 67 by Gleeson JA (with whom Harrison and Davies JJ agreed) at [71]-[74]:

[71] Rule 4 of the Criminal Appeal Rules (NSW) provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing.
[72] Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodinaand Morabito v R(1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4.
[73] Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] – [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing).
[74] It is also to be kept in mind, as Mason P said in Picken v R at [22], that:
The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge.”

The direction provided by the trial judge with respect to sexual assault is modelled off the suggested direction — “sexual intercourse without consent (s 61I) where the offence was allegedly committed on and after 1 January 2008” as printed in the Criminal Trial Court Bench Book at [5-1566]. In delivering that direction, the trial judge addressed each of the elements of the offence to be made out beyond reasonable doubt before entering a verdict of guilty.
Whilst I note the respondent had not sought any amendment or addition to the direction, either at the time or following the completion of the summing-up, that absence has not in and of itself prevented a ground of appeal based upon an impugned direction being upheld: see example, GBF and Lazarus v R [2016] NSWCCA 52.
The Court is required to consider whether the impugned direction had an impact upon the jury’s deliberations so as to result in a “substantial miscarriage of justice”: GBH at [27].
The starting point for that consideration is the purported impugned direction. In the present matter, the respondent contended that the trial judge failed to give adequate direction with respect to the Crown’s case that “the accused had no reasonable grounds for believing that the complainant was consenting to sexual intercourse”, namely, by the absence of any guidance as to what “reasonable” meant. By that submission the respondent did not cavil with the balance of the direction given by the trial judge, nor did the respondent identify any particular passage of his Honour’s direction as erroneous.
Thus, the circumstances of this case may be immediately distinguished from the circumstances in GBF, as the respondent is not seeking to establish the directions given contained error or were misleading. By the draft submissions, the respondent contends that the trial judge could have provided further guidance and in failing to do so fell into error “the jury may well have deliberated upon the basis that reasonable grounds required an evaluation as to whether the appellant’s belief was reasonable”. Reliance, in that respect, was placed upon Lazarus v R at [156].
In Lazarus v R, the Court of Criminal Appeal concluded that the directions of the trial judge as to how the jury were to approach their consideration of the appellant’s state of mind were in error: at [158]. The specific impugned statement appeared at [145] and is extracted below:

17. Stated briefly, and in no way intending to capture all of what the accused said in his evidence, the accused’s position is that the penile-anal intercourse he had with [the complainant] was consensual and that her consent was evidenced by her actions. If you consider that [the complainant’s] actions caused a belief in the mind of the accused that she was consenting to penile-anal intercourse with him and you consider that such a belief was a reasonable one, then the third element would not have been proven.
[Emphasis added.]

The argument successfully advanced by the appellant was that “the impugned direction wrongly directed the jury that the third element of the offence would not be proved unless the appellant had satisfied them by his evidence that he believed in the complainant’s consent and only then if the jury were satisfied that his belief was reasonable” at [150].
Fullerton J observed: “it remained incumbent on the trial judge to direct the jury that it was for the Crown to negative any reasonable possibility that the appellant believed (even if wrongly) that she was consenting. It was also incumbent on the trial judge to direct the jury that, in considering whether there were reasonable grounds for that belief as the statutory test requires” (at [157]).
There are available considerations as to why Lazarus v R may be distinguished from the present matter. In Lazarus v R, the appellant accepted that the balance of the trial judge’s directions were directions were unassailable, save for the directions with respect to the third element of the offence. Whereas, on the present application, the respondent does not develop any submissions suggesting anything but the correctness of the directions, save for a contention that they are partially lacking in the absence of guidance as to the meaning of “reasonable grounds”.
Both parties also advanced submissions as to GBF. In GBF, the trial judge gave the usual direction with respect to the presumption of innocence and the right to silence drawn from the joint reasons in Azzopardi v The Queen (2001) 205 CLR 50 at [51] (per Gaudron, Gummow, Kirby and Hayne JJ). The impugned statement arose late during the context of the trial judge reminding the jury of the complainant’s evidence. The impugned statement appears below (at [12]):

"Now, as I said before, there is no corroboration here. In cases such as this where sexual misconduct is alleged by the complainant, you should approach her evidence with great care and with caution. You should scrutinise it carefully, and you need to be satisfied of its accuracy and reliability beyond reasonable doubt before you can convict. Human experience in the Courts is that complainants in such matters sometimes, for all sorts of reasons, and sometimes for no reason, tell a false story which is very easy to fabricate and very difficult to refute. But, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier. It is a matter for you in assessing her credibility, but you have got to consider all of the matters that Defence addressed to you about in relation to her credit." (emphasis added)
[Original emphasis.]

The High Court held that the impugned statement contradicted the earlier direction, which was correct, and that in those circumstances a irregularity arose amounting to a miscarriage of justice (at [26]-[27]):

[26] Here, the impugned statement contradicted the directions given earlier on the onus of proof and the exercise of the right to silence. Its effect was to invite the jury to engage in the same false process of reasoning as the impugned passage did in Azzopardi. The Court of Appeal was wrong to hold that this was not an irregularity amounting to a miscarriage of justice.
[27] The respondent did not submit that, in the event that this Court determined that the impugned statement occasioned a miscarriage of justice, the appeal should be dismissed under the proviso. This was appropriate. The fact that neither counsel sought a redirection did not warrant a conclusion that the jury acted on the correct directions of law and ignored the incorrect, contradictory instruction. Whether, as the appellant argued, the impugned statement was an irregularity of a kind that is beyond the reach of the proviso need not be addressed. It suffices to observe that in these circumstances, in which the impugned statement had the capacity to affect the jury's assessment of the credibility and reliability of the complainant's evidence, it was not open to find that no substantial miscarriage of justice had actually occurred.
[Footnotes omitted.]

Both GBF and Lazarus v R are examples in which a specific comment or direction was made by a trial judge, which was held to have the capacity to mislead the jury as to the approach to be taken during deliberations and, accordingly, resulted in a miscarriage of justice. The crux of the submissions advanced by the respondent is that the jury’s deliberations would have been better assisted with an additional direction as to what constituted a “reasonable ground”.
In my view, upon the limited argument developed on this application, and having regard to the above considerations; I do not consider ground 2 is likely to succeed.
Further, as to grounds 1 and 2, if required to do so, I would conclude there must be doubts as to whether either of the grounds can be said to have reasonably arguable prospects of success.

CONCLUSION: SPECIAL OR EXCEPTIONAL CIRCUMSTANCES

Having regard to all factors relied upon by the respondent to demonstrate special or exceptional circumstances, whether taken singularly or in combination, I consider the respondent has not established special or exceptional circumstances for the purposes of s 22(1) of the Bail Act. In that light, it is unnecessary to consider the bail concern and unacceptable risk raised by the Crown.

ORDER

The Court makes the followings orders:

The Crown’s detention application is granted.

The respondent’s bail is revoked and he is to be detained forthwith.

**********

Amendments

21 December 2021 - Publication restriction no longer required

Decision last updated: 21 December 2021

Medium Neutral Citation:	R v Rodriguez [2020] NSWSC 1660
Hearing dates:	5 November 2020; 11 and 13 November 2020 (written submissions)
Date of orders:	23 November 2020
Decision date:	23 November 2020
Jurisdiction:	Common Law - Criminal
Before:	Walton J
Decision:	The Court makes the followings orders: (1) The Crown’s detention application is granted. (2) The respondent’s bail is revoked and he is to be detained forthwith.
Catchwords:	BAIL – where a detention application is brought by the Crown following a grant of bail pending appeal – jurisdiction of the Supreme Court – whether special or exceptional circumstances have been established under s 22 of the Bail Act 2013 (NSW) – relevant principles – arguability test is only enlivened upon the Court being satisfied that an additional factor of substance has been established to support the finding of special or exceptional circumstances – youth – period in custody – delay – prior bail granted – proposed grounds of appeal – assessment of merits – detention application granted
Legislation Cited:	Bail Act 1978 (NSW) Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Rules (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4 Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103 El Khouli v R [2019] NSWCCA 146 El-Hilli and Melville v R [2015] NSWCCA 146 GBF v The Queen [2020] HCA 40 M v The Queen (1994) 181 CLR 487 Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4 Murray v R (1987) 11 NSWLR 12 Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 Obeid v R (No 2) [2016] NSWCCA 321 Pell v The Queen [2020] HCA 12 Peters v The Queen (1996) 71 ALJR 309 Petroulias v R [2010] NSWCCA 95 R v XHR [2012] NSWCCA 247 R v Ambury [2017] NSWCCA 115 R v Beserick (1993) 30 NSWLR 510 R v Brown (Unreported, Supreme Court of NSW, Walton J, 6 February 2019) R v Hemsley (1988) 36 A Crim R 334 R v Henning (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990) R v Kitchener (1993) 29 NSWLR 696 R v O'Meagher (1997) 101 A Crim R 196 R v Paul Campbell (a pseudonym) [2017] NSWSC 1844 R v Thomas (Unreported, Supreme Court of NSW, Campbell J, 4 June 2014) R v Tolmie (1995) 37 NSWLR 660 R v Vaziri [2016] NSWSC 1283 R v Velevski [1999] NSWCCA 96 R v Waters (1990) 9 Petty SR 4016 R v Williams [2018] NSWSC 994 R v Zorad [1979] 2 NSWLR 764 Roos v R [2019] NSWCCA 67 Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102 Stanford v R [2018] NSWCCA 249 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Wilson v R (1994) 34 NSWLR 1
Texts Cited:	Judicial Commission of NSW, “An introduction to the Bail Act 2013”, Judicial Officer’s Bulletin, Vol 26(1) (February 2014)
Category:	Principal judgment
Parties:	Regina (Applicant) Christopher Rodriguez (Respondent)
Representation:	Counsel: R Khalilizadeh (Respondent) Solicitors: Office of the Director of Public Prosecutions (NSW) (Applicant) Legal Aid NSW (Respondent)
File Number(s):	2019/162052; 2020/301806