THE COURT: On 26 November 2019, the applicant was found guilty by a jury of one count of attempting to pervert the course of justice contrary to s 43(1) of the Crimes Act 1914 (Cth). Later, on 17 December 2020 he was sentenced by his Honour Judge Wilson SC in the District Court sitting in Sydney. He has filed an application for leave to appeal against his conviction; the Crown has filed an appeal against the sentence imposed, a term of imprisonment of 3 years and 4 months with a non-parole period ("NPP") of 1 year and 8 months, which commenced on 11 May 2020. The appeals are to be heard jointly before the Court on 7 April 2021.
The applicant has also filed a Notice of Intention to File an Application for Leave to Appeal Against Sentence, but has taken that aspect of the matter no further.
With his conviction appeal pending, the applicant made a release application to this Court. At the conclusion of the hearing on 26 February 2021 the Court made an order dismissing the application. Our reasons for that order were reserved until today.
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The Background to the Application
The Crown's case against the applicant at trial arose from a dispute between the Australian Taxation Office ("the ATO") and three companies, Chemical Trustee Limited, Derrin Brothers Property Limited, and Bywater Investments Limited ("the companies"), which resulted in proceedings before the Federal Court. The ATO contended that each of the three companies had derived income from share investment activities in Australia, but had failed to declare any income, or pay the tax that might have been assessed on declared income. Although the companies were incorporated internationally, the ATO argued that management and control of the companies was actually conducted in Australia by the applicant, who was the beneficial owner of all three companies.
In the Federal Court proceedings the companies called Peter Borgas, a solicitor admitted to practice in the United Kingdom and based in Switzerland. Mr Borgas gave evidence that he was a director of the companies and the beneficial owner of each. He deposed that he and not the applicant controlled the companies.
The Crown's case against the applicant at his subsequent criminal trial in the District Court was that he and not Mr Borgas was the beneficial owner of the companies, and he had procured Borgas to give false evidence before the Federal Court, coaching him in the evidence to be given to the court in the taxation related proceedings.
The Crown argued that the applicant caused Borgas to falsely depose that:
1. he made decisions for each of the companies, on the advice of the applicant, rather than at the applicant's direction;
2. that he was the beneficial owner of each of the companies;
3. that he was also the beneficial owner of the parent companies of the three companies, the parent companies being JA Investments Limited and MH Investments Limited, both of which were incorporated in the Cayman Islands;
4. that he and not the applicant controlled and managed the companies; and
5. that the applicant had given Borgas an inducement to give false testimony.
After the return of the guilty verdict and in factual findings on sentence, the trial judge found that each of the assertions summarised at [7(1) - (4)] above had been proved beyond reasonable doubt, but not the fifth.
The imposition of sentence was delayed by over a year principally, it appears, because of the listing arrangements in the District Court following the COVID-19 pandemic, and due to concerns in what were then the early days of the pandemic that the applicant, a man in his seventies, could be placed at risk if incarcerated. The applicant was at liberty subject to bail for much of that time.
The application for leave to appeal the conviction was filed by the applicant on 28 July 2020, before sentence was imposed. The hearing of the appeal was fixed before this Court on 26 February 2021. Sentence was imposed on 17 December 2020 and, within days of the imposition of sentence, the Crown filed its appeal, arguing that the sentence is manifestly inadequate.
The Court sought to join the two appeals for hearing on the allocated date, but the applicant was not able to meet the Crown appeal by the hearing date and, accordingly, the hearing of the substantive matters was vacated. It is now listed on 7 April 2021.
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The Application for Bail
This Court has jurisdiction to hear the release application pursuant to s 61 of the Bail Act 2013 (NSW), as proceedings are pending in this jurisdiction. The applicant accepts, however, that he must meet the hurdle presented by s 22 of the Bail Act.
In support of his application for bail, and to address s 22, the applicant relies upon a combination of features. He submits that his application for leave to appeal against his conviction is, at least, reasonably arguable; and, if he is not admitted to bail he will have served a significant portion of his NPP prior to that application being determined.
The applicant relies upon two affidavits sworn by his solicitor, Andrew Christopher. In his first affidavit of 11 February 2021, Mr Christopher deposes that, since the applicant entered custody after sentence was passed in December 2021, he has been moved between correctional facilities from time to time, being housed in a maximum security prison on occasion. The applicant has told Mr Christopher that he is fearful for his safety. He is also concerned about limitations on access to health and dental treatment. The applicant has a number of medical conditions, including back pain, hypertension, sleep apnoea, asthma and glaucoma, and has told Mr Christopher that he has not always received medical treatment when he requested it. Further, he has not received any dental treatment.
The nature of the applicant's health and periodontal conditions is evidenced by medical reports that were before the sentencing court, or which have been provided to this Court.
The applicant is willing to abide by comprehensive bail conditions in the nature of those he was previously subject to, and intends to reside with his wife at an address in Chatswood if admitted to bail. His wife is prepared to act as a surety, and can deposit a substantial sum of monies, in an amount up to $500,000. He submits that he does not pose an unacceptable risk within the meaning of s 19 of the Bail Act.
Mr Christopher has produced a copy of the written submissions filed on behalf of the applicant with respect to the application for leave to appeal against conviction. The submissions develop two grounds, each of which advance multiple "particulars" or sub-grounds. In summary, the grounds argue for error in the decision of the trial judge to admit evidence which the applicant contends was improperly obtained; and error in the directions to the jury concerning a criminally involved witness, Peter Borgas.
In his second affidavit, of 25 February 2021, Mr Christopher deposed that the applicant had told him that he has not seen a doctor or a dentist since entering custody. The applicant remains concerned that the treatment he has received for his eye condition is inadequate.
Mr Christopher produced further correspondence from doctors who had treated the applicant in the community. The applicant's general practitioner expressed her concern that her patient was not receiving adequate medication in custody, and did not have the use of a machine directed to assist him with his sleep apnoea. The doctor's information in this regard had been provided by the applicant's wife. A periodontal report from March 2020 noted that the applicant's dental condition was stable, and should be checked bi-annually. The ophthalmologist who has been treating the applicant since about 2012, reported that regular monitoring of the glaucoma from which he suffers is essential to eye health. The applicant was due to be reviewed in February 2021, but that did not occur because of his incarceration.
It is argued that these features amount to special or exceptional circumstances such that, the applicant posing no relevant risk, bail should be allowed.
The Crown opposes the grant of bail.
The Crown provided a copy of its written submissions in response to the application for leave to appeal against conviction, and a statement of the grounds of its appeal against the asserted inadequacy of the sentence imposed upon the applicant in the District Court.
The Crown also relied upon an affidavit of Jeremy Tucker sworn on 18 February 2021, and an affidavit from Kelly Clifford-O'Sullivan affirmed on 22 February 2021. Mr Tucker is Director of Strategy and Policy with Corrective Services NSW ("CSNSW"). He has provided information concerning the measures put in place by CSNSW to mitigate against the spread of COVID-19 within the prison system, measures which have been to date completely successful. No inmate of a correctional facility has contracted COVID-19 since the pandemic arrived in Australia a year ago.
Ms Clifford-O'Sullivan, the solicitor with the carriage of the matter on behalf of the Crown, has provided information as to the delay in the finalisation of the sentence proceedings in the District Court, and an overall chronology of the proceedings.
In answer to Mr Christopher's most recent affidavit, served upon the Crown with insufficient time for a formal response to be secured, the Crown Prosecutor advised the Court, with the consent of the applicant, of the outcome of inquiries made of Justice Health concerning the applicant's access to medical treatment in custody.
The applicant is presently being held at the Long Bay complex, where he has daily access to a nurse, and access to a doctor when required. Justice Health have confirmed that inmates requiring access to a "CPAP machine" used to treat sleep apnoea can use the machine in custody. The applicant is receiving all necessary medication for his medical conditions, including necessary glaucoma medication.
The Crown disputes that the application for leave to appeal against conviction is meritorious, and submits that none of the features relied upon by the applicant, either singly or in combination, constitute "special or exceptional circumstances" such that the Court should make a grant of bail.
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Consideration
The Court's general power to grant bail in this matter is limited by the operation of s 22(1) of the Bail Act. It (relevantly) provides:
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,
Thus, bail can only be granted to the applicant if it is established that "special or exceptional circumstances" exist that justify such a decision. It has been held that s 22 poses a "significant hurdle" to any grant of bail: El-Hilli and Melville v R [2015] NSWCCA 146. In R v Williams [2020] NSWCCA 348 the rationale for the statutory hurdle was explained thus by Campbell J, with the agreement of Simpson AJA and Bellew J:
In Re. Clarkson [1986] VR 583 at 584, the Full Court of the Supreme Court of Victoria wrote of "the difficulty of persuading the court that the circumstances put forward as special or exceptional are strong enough to overcome the powerful considerations of a general character which militate against the grant of bail pending appeal".
Some of those "considerations of a general character" were addressed by the High Court of Australia in United Mexican States v Cabal (2001) 209 CLR 165;[2001] HCA 60 at [39] - [40]. The Justices said of a grant of appeals bail:
In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher [1986] 1 Qd R 303 at [310], to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:
makes the conviction appear contingent until confirmed;
places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
encourages unmeritorious appeals;
undermines respect for the judicial system in having a "recently sentenced man walking free";
undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances.
Obviously, after conviction and sentence, the presumption of innocence has been rebutted and the general right to be at liberty has been abrogated by the passing of sentence" (at [9]).
It was the applicant's case that special or exceptional circumstances are found in the combination of features he relied upon to that end; that is:
1. He has at least arguable prospects in bringing his application for leave to appeal against conviction;
2. The issues in the appeal are complex and are likely to require a significant period to be considered and determined, leading to likely delay after the matter is heard on 7 April 2021;
3. Because of the likely delay in judgment being delivered the applicant will serve a significant portion of the NPP before his appeal can be determined;
4. His need for health and dental care is not being adequately addressed by custodial authorities; and
5. There are no unacceptable risks in a grant of bail to the applicant.
Where an applicant relies upon the likely success of a proposed appeal in combination with other features, "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": El Khouli v R [2019] NSWCCA 146 at [27] per Hoeben CJ at CJ, with whom Walton J and Wilson J agreed.
Ground 1 of the application for leave to appeal against conviction relates to the question of the admissibility of documents which had their origins with taxation authorities in the Cayman Islands, and which had been provided to the ATO pursuant to a treaty between Australia and the Cayman Islands. The ATO sought the documents in the context of its case in the Federal Court against the applicant, and they were placed in evidence in the Federal Court proceedings.
The applicant contends that the trial judge was in error in admitting the documents, after having concluded that there was no evidence that they had been illegally or improperly obtained.
Ground 2 relates to the evidence of Peter Borgas and the directions given to the jury concerning it. The jury was directed as to the need for caution in relation to the evidence of a criminally involved witness, and a further warning was given to its members pursuant to s 165 of the Evidence Act 1995 (NSW) as to the potential unreliability of the witness' evidence, but the applicant argues that these directions were inadequate.
Those grounds will be considered by this Court on 7 April 2021. Since it is neither possible nor desirable in the context of the release application to come to any considered view as to the merits of the proposed appeal, we have proceeded on the basis that the application is an arguable one, as the applicant submits. Equally no doubt, there is an argument that can be made against the application. Consideration of the merits of those arguments should be left to the Court constituted to hear the application.
The applicant further relies upon the question of delay. He submits that there has already been some delay in these proceedings, both in the imposition of sentence, and in hearing the appeal. Whilst the delay in this Court is of short duration, a matter of five weeks or so, the issues in the appeal are so complex that it is unlikely that judgment will be given quickly by the Court. It is submitted that there is a real risk that the applicant will serve a significant portion of the NPP whilst awaiting judgment, a feature that should attract considerable weight having regard to the overall length of the NPP imposed in the District Court, and in the context of an elderly man of former good character with a number of health issues.
Proceeding on the assumption (for present purposes) that the application for leave to appeal against conviction is arguable, we were not persuaded that special or exceptional circumstances exist to justify a grant of bail, even when taken with the other matters advanced in support of the release application.
Accepting that delay can be perceived subjectively, such delay as has occurred in this matter is very limited and not such as to militate in favour of a grant of bail. The substantive hearing of both the applicant's conviction appeal and the Crown's inadequacy appeal will take place in this Court in only a little over five weeks. There is no realistic prospect that the NPP imposed upon the applicant will expire, or come close to its expiration. Although senior counsel for the applicant argued that delay in delivering judgment is almost certain, that submission overlooks the capacity of the Court to act swiftly where necessary.
This Court is always astute to consider the expiration dates of any short term sentence, and the need in such cases for the expeditious determination of an appeal. Past matters where the Court has made orders immediately, or very soon after the hearing of an appeal, for the very reason that speed is essential to prevent injustice, can be readily identified. There is no reason to conclude that judgment in the applicant's case will not be given in a timely manner appropriate to the circumstances.
Setting aside issues of risk assessment under Division 2 of Part 3 of the Bail Act, the other feature relied upon by the applicant is his poor health and need for particular treatment. Other than the applicant's assertions to Mr Christopher, and the assertions of the applicant's wife to his general practitioner, however, there is no evidence upon which to base a conclusion that Justice Health is incapable of addressing the applicant's legitimate need for medical and dental treatment.
Whilst it may be accepted that there could be a distinction to be drawn between the best health care that significant financial resources can secure, and that available to the average individual in the community or in custody, that does not mean that the medical treatment available to persons in custody is inadequate. In the absence of clear evidence of it, we do not conclude that Justice Health is unable to or will not discharge its statutory functions to administer appropriate medical and dental treatment to the applicant, including meeting its duty to protect prisoners from infection with COVID-19.
As was observed by Johnson J in R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152, at [125] - [126], with the concurrence of Macfarlan JA and Garling J:
Justice Health is a statutory health corporation, with functions including the provision of health services to offenders and persons in custody: s.236A Crimes (Administration of Sentences) Act. The Chief Executive Officer of Justice Health has a statutory right to have free and unfettered access at all times to correctional centres, medical records and offenders to ensure that statutory provisions relating to Justice Health are being complied with: s.236B Crimes (Administration of Sentences) Act.
Accordingly, the Court should approach an appeal such as this upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Respondent whilst in custody.
The applicant's health and dental issues are of a kind that afflict many older citizens in particular. There is no reason to conclude that those conditions cannot be managed in a custodial setting.
In our conclusion, the matters relied upon by the applicant are not special or exceptional, and do not answer the limitation placed on a grant of bail posed by s 22. Considerations of risk and the applicant's asserted capacity to comply with conditions of bail cannot overcome the hurdle posed by s 22 of the Bail Act.
We refused the application for bail on that basis.
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Decision last updated: 05 March 2021