At the hearing of an application for an extension of time to appeal against the applicant's conviction, and for bail pending the hearing of the appeal if an extension of time was granted, the Court made the following orders, with reasons to be provided at a later date:
(1) Leave is granted to file the notice of appeal after the expiry of the filing period.
(2) The Court directs that there be a hearing before the Registrar after 11 March 2024.
(3) Grant leave for the bail application dated 28 February 2024 to be renewed on today's date, filed in court and be returnable instanter.
(4) Conditional bail granted on the following conditions:
The applicant is to be of good behaviour; and
The applicant is to appear in court when required to do so.
These are the Court's reasons for those orders.
The applicant pleaded guilty in the Local Court to one count of maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The applicant was convicted and sentenced by Judge Haesler SC to imprisonment for 6 years 9 months commencing 20 December 2022 and expiring 19 September 2029 with a non-parole period of 3 years 4 months expiring 19 April 2026.
The underlying offences that resulted in the offence against s 66EA were offences contrary to s 81 of the Crimes Act as it then was. At the time of the alleged offending ss 79-81 of the Crimes Act appeared in Div 10 of Pt 3 of that Act under the heading "Unnatural offences". The offences were as follows:
79 Buggery and bestiality
Whosoever commits the abominable crime of buggery, or bestiality, with mankind, or with any animal, shall be liable to penal servitude for fourteen years.
80 Attempt &c to commit buggery
Whosoever attempts to commit the said abominable crime, or assaults any person with intent to commit the same with or without the consent of such person, shall be liable to penal servitude for five years.
81 Indecent assault on male
Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.
On 12 February 2024 this Court held in Lam v R [2024] NSWCCA 6 that the offence in s 81 was incapable of being committed by a female.
In those circumstances, the applicant now seeks leave to appeal against her conviction. She needs leave because the time for filing an appeal expired some time ago.
The sole ground of appeal is this:
A miscarriage of justice occurred because the applicant, a woman, was convicted of a charge which was founded on charges for which she could never lawfully be convicted.
The applicant also seeks bail pending the outcome of the hearing of her appeal if leave is granted to appeal out of time. Section 61 of the Bail Act 2013 (NSW) provides that a court may hear a bail application for an offence if proceedings for the offence are pending in the court. The applicant accepts that there may be some doubt about whether there are "proceedings… pending in the court" where leave has not been granted for the bringing of the appeal. The Crown accepts that the jurisdiction of this Court is enlivened to consider an application for bail pursuant to s 61 if leave to appeal is granted. Section 59 provides that a reference to "proceedings for an offence pending in a court" is a reference to substantive proceedings pending in the court.
Both parties accept that for this Court to have jurisdiction to grant bail to the applicant, leave would need to be granted to file the applicant's appeal out of time.
The Court raised with counsel for the applicant whether the applicant intended to seek leave to withdraw her plea of guilty to the offence. Counsel for the applicant said that consideration was being given to that matter, and what evidence might be necessary to support such an application. Nevertheless, the applicant sought, in the meantime, that an extension of time be granted for an appeal as a result of the decision in Lam because, while Lam stated the law, there was a miscarriage of justice in the applicant being convicted for an offence which did not apply to a female. On any application to withdraw a plea after conviction, the test is also whether a miscarriage of justice will occur if the plea is not permitted to be withdrawn: White v R [2022] NSWCCA 241 at [24] and [58]; Garcia-Godos v R; MH v R [2023] NSWCCA 145 at [57] and [73].
The Crown drew attention to what was said in Meissner v The Queen (1995) 184 CLR 132 at 141-142 in relation to a court acting on the basis of a guilty plea, even if in truth the person is not guilty of the offence, but did not oppose the grant of leave to extend the time for an appeal, whilst reserving its position to argue against a miscarriage of justice at the final hearing of the appeal.
In those circumstances, the Court considered that leave should be granted to extend time for the applicant to appeal against her conviction.
Since the bail application was filed in this Court prior to any grant of leave to extend time for an appeal, this Court did not have jurisdiction to consider the application. The Court considered that leave should be granted for the bail application to be renewed from the time leave to extend time was granted. It was then necessary to consider whether bail should be granted.
Section 22 of the Bail Act 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,
(b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).
(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.
(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 R v Smith [2023] NSWSC 36 Yehia J summarised the principles associated with s 22 of the Bail Act. Having set out the provisions of s 22, her Honour said:
[25] Accordingly, bail can only be granted if an applicant establishes that there are "special or exceptional circumstances" that justify a decision to grant bail: see R v Moore [2015] NSWSC 1262 at [3].
[26] First, in cases involving show cause offences, the requirement to establish "special and exceptional circumstances" applies rather than the requirement that the applicant show cause why their detention is not justified as per ss 16A and 16B of the Bail Act. This suggests that the requirement to establish "special and exceptional circumstances" is at least as onerous as the requirement to show cause. It is well established that s 22 poses a "significant hurdle" to any grant of bail: see El-Hilli and Melville v R [2015] NSWCCA 146 at [11] (El-Hilli and Meville); Gould v R (Cth) [2021] NSWCCA 27 at [29]. Second, the unacceptable risk test continues to apply to a bail decision made under s 22.
[27] What must be shown is that there is some situation which is out of the ordinary, or unusual in some respect, which the applicant can point to as being special or exceptional. Harrison J considered the requirement for exceptional circumstances in R v Naizmand [2016] NSWSC 836, at [8], as follows:
"The expression 'exceptional circumstances' is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what I looked for are circumstances that are, or that appear to be, an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics."
[28] In Director of Public Prosecutions (NSW) v Van Gestal [2022] NSWSC 973, Garling J observed that the phrase "special or exceptional circumstances" is to be found in different places in the Bail Act. His Honour concluded that there is no reason that the phrase means different things in different parts of the Act. In Bobbi v R [2021] NSWCCA 44, Hamill J (with whom McFarlan JA and Walton J agreed) said that there was "…. no fetter on the things that might constitute 'special or exceptional circumstances'".
[29] In R v Watson [2017] ACTSC 311, Penfold J, referring to the meaning of the words "special or exceptional circumstances", said, at [42]:
"The words do not mean 'unique or unprecedented or very rare'. It must, however, be something which distinguishes the applicant's case from others, to take it out of the usual or ordinary case. An application must establish that there are some unusual or uncommon circumstances which must favour the granting of bail."
[30] The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case-by-case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence, and features which emphasise that the applicant is otherwise a person who will answer bail: see R v Khayat (No 11) [2019] NSWSC 1320 at [14].
[31] Where the grounds of appeal are put forward as the only or principal factor to demonstrate "special or exceptional circumstances", an applicant has to show much more than that the grounds seem arguable; it may be necessary for the respondent to establish that the appeal is most likely to succeed: see Travascus v R [2020] NSWCCA 323 at [15]; El Khouli at [27]; R v Williams [2018] NSWSC 994 at [25] and [38]; El-Hilli and Melville at [11]; and Petroulias v R [2010] NSWCCA 95 at [34].
[32] If, however, the merit of the appeal is put forward as part of a combination of 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: see El-Hilli and Melville at [29]; El Khouli at [27].
In Obeid v R (No 2) [2016] NSWCCA 321, the Court (Bathurst CJ, Hoeben CJ at CL and R A Hulme J) said:
[10] The significance and operation of s 22 was considered by this Court in El-Hilli and Melville v R [2015] NSWCCA 146. Hamill J, with the concurrence of Simpson J (as her Honour then was) and Davies J, stated the following propositions:
"[13] … First, where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special and [sic - or] 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. The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special and [sic] 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)."
[11] Hamill J also reviewed a number of earlier decisions concerned with the meaning of the expression "special or exceptional circumstances" (many in a somewhat different statutory context). He concluded:
"[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 [of the Bail Act 1978 (NSW)] 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."
The Crown quite properly accepted that even if the test is "most likely" to succeed, it would be open for this Court to conclude from what was said in Lam that the applicant is more likely than not to succeed. In the light of Lam, the applicant's appeal would be most likely to succeed.
In relation to the "unacceptable risk test", the Crown did not seek to be heard, but submitted that the most appropriate course would be for the applicant to be returned to the conditions of her previous bail, pending resolution of the appeal proceedings.
It is clear from the sentencing judge's judgment that, apart from the offending which led to her conviction, the applicant has been an upstanding citizen, generous with her time including fundraising for community committee activities. The offending occurred between 1977 and 1979.
Although the Crown proposed that the applicant should be placed on the bail conditions she was on prior to her conviction and sentence, that would only be necessary if there were bail concerns and the court considered that there was an unacceptable risk associated with one or more of those bail concerns.
The bail conditions imposed upon her after arrest were principally designed to protect the victim and his family. There is no evidence before the Court pointing to any bail concerns, in particular, of any attempt to contact the victim or his family. It follows, therefore, that there is no unacceptable risk if the applicant is released to bail.
Having regard to the matters in s 18 of the Bail Act, the Court considered that the applicant should be released to bail on conditions only that she be of good behaviour, and that she appear before this Court or the District Court whenever she is required to do so.
[2]
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Decision last updated: 15 March 2024