HIS HONOUR: Before the Court is an application for bail by the applicant, whom I will call for the present purposes, John Gray, a name, being a pseudonym given to him in his District Court proceedings. The reason a pseudonym was granted was, amongst other reasons, because of the nature of the crime and the fact that the applicant was, at the time, a juvenile and was a juvenile at the time of the offending or alleged offending.
The applicant faced a number of charges. The two relevant charges are a charge for which he was convicted, being a sexual offence against a person under the age of ten and in fact, of five years of age. A further charge was laid at the time of the trial and prosecuted. That charge was a charge relating to a quite different offence, as I read it, being an offence relating to exposure and, or indecency in relation to the same victim.
The jury convicted, as earlier stated, the applicant of the sexual intercourse charge, which involved the use of a vibrator and acquitted the applicant of the other charge. Haesler DCJ's, in what are not unusual for his Honour, excellent remarks on sentence, make clear at paragraph 8 that the not guilty verdict indicates that the jury may have accepted as a possibility that the victim had seen her brother without him deliberately exposing her to any act of a sexual nature.
I deal with the charge on which he was acquitted for this reason; it seems on looking as briefly as I have for the purpose of the bail application at the issues that are before the Court, there doesn't seem to be an obvious inconsistency between the guilty charge on one offence and the not guilty charge on the other. Having said that, the ground of appeal, while it raises inconsistency, raises inconsistency on the basis that it is part of a much broader argument relating to the capacity of the victim to give a truthful and thorough explanation of all that happened and a reasonable possibility that it did not happen, particularly in light of certain medical evidence that was adduced during the course of the trial.
The Court, as presently constituted, in the course of a judgment previously dealt with the issue of an unreasonable verdict in certain circumstances where there were inconsistent or different verdicts arising from different charges: Darby v R [2016] NSWCCA 164. In some respects, the nature of the different verdicts is a factor that must be weighed in dealing with the unreasonableness of the verdict that is allegedly the result of the jury trial.
Having said all of that, I am not satisfied that the grounds of appeal of themselves would amount to a special or exceptional circumstance and it is probably necessary for me to deal with the basis upon which bail may or may not be granted. As earlier stated, that is in other proceedings, the function of the Court, in dealing with a bail application ordinarily is to deal with a bail application starting with the presumption that persons who are on remand are entitled to their liberty, subject to the satisfaction of the Court that there is not an unacceptable risk of the nature that is described in s 18 in relation to the concerns in s 17 of the Bail Act 2013 (NSW).
Those concerns are a failure to appear, the commission of a serious offence, the endangerment of the safety of a victim, individuals or the community or interference with witnesses or evidence. Let me deal with those almost in reverse order.
The trial has been held; the witness has given evidence. Presumably, given the nature of the offence, the evidence was recorded and probably played as a recording during the course of the trial. As a consequence, it is almost impossible to interfere with a witness or evidence. That evidence would be available in any subsequent trial, in any event. Likewise, there is no risk of endangerment of the safety of the victims, individuals or the community arising from any benefit that may be gained on the appeal. I will come back to that issue in a moment.
As to the failure to appear, as has been pointed out in submissions, the applicant was on bail, granted by Johnson J in the Supreme Court, for approximately twenty months without any major incident. It is also pointed out there was a technical breach of bail conditions, which was a failure to attend on one day in circumstances where the grandmother, who is listening via telephone to this application, brought the applicant to the police station the next day and apologised, saying she had forgotten about the reporting requirement. Obviously, that also involves a situation that the young person also had forgotten about it. But, be that as it may, Haesler DCJ described it as a technical breach and frankly, I accept that description.
I then come to the issue of the commission of a serious offence and in that regard, the endangerment of the safety of a victim or the victim, individuals or the community that are described as concerns in s 17. The expert evidence that this Court has heard over many years relating to offences of this kind suggests that in the scheme of things, if there is to be subsequent offending, it is likely to occur in relation to the same person or a person of the same age within the same family relationship, if there be a family relationship.
The question, therefore, is whether that amounts to a risk that is unacceptable and whether the risk of failure to appear is unacceptable; both of which must be assessed on the basis that appropriate or strict conditions can be applied governing the conduct of the applicant between now and the appeal.
What I haven't said so far is the basis of the appeal and, or the grant of bail. As earlier stated, the applicant was convicted by a jury. Prima facie, that jury verdict is correct. The applicant has filed an appeal, which I have already mentioned, is based amongst other things on the unreasonableness of the verdict, given the tender age of the victim and some issues raised in relation to the victim's evidence. It is unnecessary for me to make any comment on that. In order to come to a view in relation to those matters one would have to read the entirety of the evidence and I have not had the capacity to do that. I accept, without really evaluating the situation because I haven't had the opportunity to read all of the evidence, that the appeal is arguable.
That, of course, is not the test. Once a person is convicted of an offence, whether by a jury or a Judge on indictment, the provisions of s 22 of the Bail Act apply. The provisions of s 22 of the Bail Act require the Court to be satisfied; that is the applicant must establish that special or exceptional circumstances exist that justify the bail decision for an offence pending an appeal to the Court of Criminal Appeal against the conviction on indictment and/or the sentence. There is no appeal against sentence in this case.
The use of the term "special or exceptional" circumstances in s 22 seems to be a reiteration of tests that previously applied under the repealed Bail Act and applied, for example, in relation to what we now call show cause offences which often require special or exceptional circumstances under then s 9D of the Bail Act 1978 (NSW). Nevertheless, that is a term that is well-known in the authorities associated with grants or refusals of bail. It was dealt with by McClellan CJ at CL (as his Honour then was) and dealt with by various other Judges. In R v Brown [2013] NSWCCA 178, I dealt with the meaning of "exceptional circumstances" in the term "special or exceptional circumstances" and reiterated a comment that I had made in another judgment that is unreported, being R v Daron John Wright (Supreme Court (NSW), Rothman J, 7 June 2005, unrep).
In Daron John Wright's application, I said this in paragraphs [22]-[24]:
"[22] The use of the term 'special and exceptional circumstances' would require that the circumstances be both special and exceptional. The use of the term 'exceptional circumstances' means that the circumstances need to be exceptional but not necessarily special. 'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial.
[23] Macquarie Dictionary defines the word 'exceptional' as:
'1. forming an exception or unusual instance; unusual; extraordinary.
2. exceptionally good, as of a performance or product.
3. exceptionally skilled, talented or clever.'
[24] The Oxford English Dictionary defines the word 'exceptional' as:
'Of the nature of or forming an exception; out of the ordinary course; unusual, special.'"
So, the use by the legislature of the term "special" or "exceptional" may ultimately not add very much to the use by itself of the term "special" or the use by itself of the term "exceptional". What I did say in the judgment in Brown, to which earlier reference has been made, is that the need to satisfy the Court of special or exceptional circumstances does not constitute a prohibition on the granting of bail. I cited the judgment of McClellan CJ at CL in R v Pirini (Supreme Court (NSW), 8 September 2009, unrep), the approach of Price J, as his Honour then was in R v Medich [2010] NSWSC 1488 and the approach of the Court of Appeal in R v Chehab [2013] NSWCCA 62 at paragraph [6], which states as follows:
"[6] What constitutes, or might constitute, exceptional circumstances is a question of fact to be determined referable to considerations personal to the applicant for bail or the circumstances of the particular case. Where the preconditions to the operation of s 9D(1) are met, the applicant for bail (in this case the respondent to the bail review) has the evidential burden of establishing circumstances sufficiently exceptional to warrant bail being granted."
It is fair to say that the effect of the judgments, to which I have referred and recited in the reported judgment in Michael John Brown, to which reference has already been made, is that one can have exceptional circumstances either as a result of the combination of the circumstances that one would otherwise consider as a result of the requirements in s 17 and s 18 or one could have exceptional circumstances arising from some extraneous or particular matter which applies particularly to the applicant that is before the Court.
I start from the premise that a sentence has been imposed lawfully. By "lawfully," I mean in accordance with the law. The sentence is certainly not a heavy one. The non-parole period concludes in October 2020. We are now into April 2020 and we are in strange times. It is unclear to what extent there will be delay in the Court of Criminal Appeal, although I know from sitting and from the meetings of Judges, that matters are being sought to be expedited. Not all matters are able to be expedited because, without any criticism, parties to appeals are entitled to a reasonable opportunity to prepare and to present the case that they expect to put. That is a fundamental rule of natural justice and it is not always easy for either an appellant, if it be the Crown or an applicant for leave, if it be an applicant, or an appellant if it be a point of law or indeed, the respondent, to be in a position to run an appeal on an expedited basis even though the Court may wish for its convenience to do so.
It is likely that this matter will be heard not before June 2020. It may well be extended beyond that time. The likelihood is also that the current crisis associated with the pandemic will last until at least July or August of 2020. I am not sure I should be quoted on that, but the issues are strange and they are certainly exceptional. The fact is that if the applicant has an arguable case on appeal, and I accept he does, and the case has a reasonable prospect of success, he will have served most, if not all of his non-parole period before the appeal decision could be determined.
There are reasons that the Crown has pointed out and with which the Court is more than familiar that it is problematic for a person to be released from custody and then if the appeal is unsuccessful, custody reimposed. That is less of a problem when one is referring to a juvenile facility than adult imprisonment because the conditions that usually apply at a juvenile facility are generally less stringent and less of an alteration.
In this case the applicant proposes house arrest with his grandmother. His grandmother, on all accounts, is a responsible woman who will, I am sure, supervise the applicant. Haesler DCJ was certainly impressed with the grandmother and her support. They, that is the grandmother and the applicant, will be living by themselves without any access to any child under the age of sixteen. As a consequence of that, it seems to me that the circumstances, predominantly the circumstance that almost all of the non-parole period will have been served by the time any appeal could be heard and determined is such that bail is capable of being granted. Moreover, given the comments I have made about the risk, it seems to me that any unacceptable risk can be appropriately ameliorated by the imposition of strict conditions.
I draw attention to the fact that the applicant is a young person of Aboriginal descent. His ties to the community are, as we recently heard from the High Court as strong as one's ties to land ever could be and I do not consider, given the history of the applicant on bail, that there is a serious and unacceptable risk of flight, nor, given the conditions that are proposed to be imposed, are there serious safety concerns for any victim, individual or members of the community or a likelihood that the applicant will commit a serious offence. As such, bail will be granted.
I make it clear that the provisions of the legislation, and if it were not for the legislation the orders of the Court, would require non-publication of the applicant's name or anything that would identify him from these proceedings. In the matter of R v [REDACTED], known for the purpose of these published reasons as Gray, his date of birth is [REDACTED]; for the charge of sexual intercourse with a child under the age of ten in contravention of s 66A(1) of the Crimes Act said to have been committed between 30 October 2017 and 19 November 2017, conditional bail is granted.
FOR BAIL CONDITIONS SEE COURT FILE
[2]
Amendments
14 April 2020 - [1] - Anonymised name amended.
[23] - DOB redacted.
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Decision last updated: 14 April 2020