Carnaby v R [2021] NSWCCA 203 | Case summary

The application for bail

As we have said, the applicant was convicted of 15 counts of "dishonestly obtain financial advantage by deception" contrary to s 192E(1)(b) of the Crimes Act, and four counts of "recruit person to engage in criminal activity" contrary to s 351A(1) of the Crimes Act.
Before making a bail decision, the Court must assess any bail concerns set out in s 17(2) of the Bail Act. Bail is to be refused if the Court is satisfied, on the basis of an assessment of the bail concerns, that there is an unacceptable risk: s 19(1). The list of matters which must be considered in assessing bail concerns is set out at s 18(1). This list includes the following matter: 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division - … (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success … .
There is, however, an additional hurdle which the applicant must overcome in the present application. Section 22 of the Bail Act provides a general limitation on the Court's power to release the applicant in the present circumstances: 22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision - (a) an offence for which an appeal is pending in the Court of Criminal Appeal against - (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment … (3) Subject to subsection (1), Division 2 (Unacceptable risk test - all offences) applies to a bail decision made by a court under this section.
In El-Hilli and Melville v R [2015] NSWCCA 146, Hamill J (Simpson JA and Davies J agreeing) explained: "[13] … where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special and exceptional circumstances exist justifying the [decision to grant bail]'. Then the Court must apply the 'unacceptable risk test' and do so by application of the exhaustive list of matters set out in s 18."
Hamill J made the following observations regarding the requirement for special and exceptional circumstances: "[29] … '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."
The applicant identified the matters which, he submitted, demonstrate "special or exceptional circumstances" here. Those matters were: 1. he has been incarcerated since 22 May 2020; 2. the legal resources which he is able to access in prison are not adequate for him to prosecute his appeal; 3. he was denied natural justice and due process by the trial judge which forced him into self-representation, and the same injustice will be repeated if he is not granted bail; 4. he was on bail throughout the trial, complied with all the terms of his bail conditions and voluntarily presented himself to Court for sentencing, notwithstanding that the trial judge had indicated that a custodial sentence was inevitable. In addition, the Crown's application for detention upon conviction pending sentencing was refused; 5. he suffers from poor health, which restricts him from moving about the prison to access material to prepare for his appeal.
We have concluded that those matters, considered both individually and collectively, do not amount to "special and exceptional circumstances" justifying the grant of bail.
As to the first matter, the applicant has served only 15 months of his sentence. By the time his appeal is heard on 3 November 2021, he will have served less than 18 months of that sentence. That is not a substantial part of the applicant's 9-year sentence, or even of the 5-year 5-month non-parole period.
As to the second matter, while the need for a person to be free to prepare for appearance in court is a relevant consideration when assessing bail concerns (Bail Act, s 18(1)(l)), "special or exceptional circumstances" have not been shown here. The applicant has not demonstrated that any limitations on the resources available to him warrant the description "special or exceptional circumstances". Whilst the applicant complains about some restrictions upon his ability to conduct legal research in prison, the applicant's access to legal resources has not been demonstrated to be so restricted as to amount to a special or exceptional circumstance justifying the grant of bail.
As to the third matter, the Court in considering a bail application is confined to a broad overall view of an applicant's apparent prospects. As this Court observed in Obeid v R (No 2) [2016] NSWCCA 321: "[17] It is inappropriate for this Court to say much in detail about an applicant's prospects of success on appeal when determining a bail release application pending the hearing of such appeal. That is for two reasons. First, the argument before this Court on such an application can never be as fully developed as it might be. Secondly and consequently, this Court is confined to reaching only a broad overall view of an applicant's apparent prospects."
The applicant relies on 16 grounds in his appeal, including a ground that the verdicts of conviction on each of the counts were unsafe, unreasonable and inconsistent. Where an appeal is based on such grounds, there are further limits on the extent to which a Court can determine the prospects of that appeal. As Davies J said in R v Williams [2018] NSWSC 994: "[25] … 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 [v The Queen (1994) 184 CLR 487] at 494."
Many of the applicant's grounds of appeal appear speculative at best. We are prepared to assume that the applicant has some reasonably arguable grounds of appeal, however, our necessarily limited assessment of the applicant's prospects of succeeding on his appeal is that none of the grounds of appeal are strong. It is inappropriate for present purposes to say more.
As to the fourth matter, neither the applicant's previous compliance with bail conditions nor the trial judge's refusal to grant the Crown's detention application after conviction but prior to sentencing, amounts to "special or exceptional" circumstances. These are considerations relevant to the assessment of bail concerns for the purpose of considering whether there is an unacceptable risk: Bail Act, s 19(1).
As to the fifth matter, while the applicant has tendered medical records indicating that he suffers from a number of health problems, beyond asserting that he has difficulty walking to the library and sitting for lengthy periods, he has not explained how these health problems affect or compromise his ability to prepare for his appeal. The medical records do not refer to him suffering any restrictions in this regard.
The sentencing judge took the applicant's age and ill health into account on sentence and made a finding of special circumstances. However, the sentencing judge also observed that the medical evidence indicated that the applicant's opportunities for treatment and management of his conditions in custody would not differ from those available in the wider community. There is no material before us which persuasively suggests that the applicant's conditions are such that Justice Health cannot treat them adequately. We are not satisfied that the applicant's health constitutes a special and exceptional circumstance justifying bail.
Considering the matters raised by the applicant collectively, we have concluded that he has not demonstrated that "special and exceptional circumstances" exist justifying a decision to grant bail. It is therefore unnecessary to go on and consider the "unacceptable risk test" by application of the list of matters set out in s 18 of the Bail Act.
For those reasons, on 23 August 2021 the Court made the following orders: 1. The release application is dismissed. 2. Bail is refused.

Carnaby v R

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

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