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ORDER

Judge: Refshauge J

Date: 28 March 2012

Place: Canberra

THE COURT ORDERS THAT:

1. The application for bail is dismissed.

2. By indictment dated 3 October 2008, Brendan Michael McCarthy, the appellant, was charged with one count of engaging in sexual intercourse with his then former partner without her consent and knowing that she had not consented or being reckless as to whether she had consented. The offence was alleged to have occurred between 1 May 2006 and 16 June 2006.

3. Mr McCarthy pleaded not guilty to that charge and was tried by a judge and jury, commencing on 14 November 2011. On 21 November 2011, the jury returned a verdict of guilty. On 6 March 2012, Mr McCarthy was sentenced to three years imprisonment with a non parole period of 18 months. Mr McCarthy has commenced an appeal against his conviction. The Notice of Appeal was filed on 8 March 2012. Mr McCarthy now applies for bail pending his appeal.

4. Bail pending an appeal to the Court of Appeal from a trial on indictment is available as an incident of the power to stay proceedings. The power may be granted by a single judge under section 37J(1)(d) or (e) of the Supreme Court Act 1933 (ACT): see Sherd v The Queen (2011) 5 ACTLR 290.

5. The respondent initially objected that, in his application for bail, Mr McCarthy had only sought bail and had not also sought a stay or, perhaps, had not principally sought a stay and then incidentally applied for bail. Certainly the decision of the High Court in United Mexican States v Cabal (2001) 209 CLR 165 suggests that as the approach. Thus the court said (at 181; [38], [39]): [T]his court has jurisdiction to stay [an order of imprisonment] ... It also has jurisdiction to grant bail so as to make the stay order effective. ... 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.

6. Those comments would certainly imply that any application for bail must be associated with, and perhaps be ancillary to, an application for a stay, though, as their Honours point out, the grant of bail is necessary to “make the stay order effective”. In criminal proceedings where the appellant has been sentenced to imprisonment, bail is almost certainly the only, or at least by far the most important, reason why an appellant would seek a stay.

7. I am mindful of the fact that, in appeals from the Magistrates Court, Magistrates Court Act 1930 (ACT) s 216 statutorily stays any sentence upon the filing of a Notice of Appeal to this Court. It does not, however, automatically grant the appellant bail. It merely effects a change in the status of the appellant from sentenced prisoner to remandee; hence, the order ordinarily made on the filing of such an appeal, apparently required by s 216(2), is: “in consequence of s 216 of the Magistrates Court Act 1930 (ACT), I order that [the appellant] be remanded in custody pending the hearing and determination of the appeal”.

8. Notwithstanding this, I note that the High Court has heard and determined what, so far as I can tell, are applications for bail without also applications for a stay, even in cases which refer in the reasons for judgment in United Mexican States v Cabal. See, for example, Re Pinkstone’s applications (2003) 77 ALJR 1561 at 1563; [15]; Siminton v Australian Prudential Regulation Authority (2008) 82 ALJR 1478 at 1479-80; [10]-[11]; Tilley v The Queen (2008) 83 ALJR 233.

9. I do note, however, that High Court Rules 2004 (Cth) rr 8.07.1–8.07.03 also make provision for a grant of bail. Nothing said in United Mexican States v Cabal, or indeed in any of the other decisions, suggests that the test for granting a stay will be different from the test for granting bail, nor that the consideration of the two matters will be substantially different in such cases.

10. An important reason why a stay would need to be granted is if the sentence were to continue to run even though bail was granted. That would amount, in effect, to the sentence continuing to run, notwithstanding the grant of bail, as was held in Whan v McConaghy (1984) 153 CLR 631 and more recently in R v Hall [2004] NSWCCA 127 and George v O’Neill (2009) 24 NTLR 228. That, however, is not the position in this jurisdiction. Section 37Q of the Supreme Court Act provides that where a person who has been sentenced to imprisonment and has appealed to the Court of Appeal is released on bail, the time spent while released on bail does not count as part of the term of imprisonment.

11. It appears to me, therefore, that it is arguable that an application can be made to the Court of Appeal for bail without necessarily having to apply also for a stay. I do note that at least one other member of this Court has taken the view that an application or a stay must be made, at least at the same time of the application for bail. This has led registry staff to require an application for a stay to be made first or at the same time as an application for bail, although it appears that this was not complied with by the solicitors for Mr McCarthy. In this case, however, at the urging of the respondent’s counsel and with no opposition from Mr R Thomas, who appeared for Mr McCarthy, I permitted the application to be amended to provide for an application for a stay at the same time.

12. In Sherd v The Queen, I set out the considerations concerning such bail (at 299–301; [45]–[63]). It is partly regulated by s 9E of the Bail Act 1992 (ACT), which provides that where a person has been convicted of an offence and sentenced to a term of imprisonment and an appeal is pending in relation to the conviction, a court must not grant bail unless satisfied that special or exceptional circumstances exist in favour of granting bail.

13. The terms “special and exceptional circumstances”, however, are those used in United Mexican States v Cabal and other cases, both in the High Court and elsewhere, to identify the tests to be applied. The term cannot be precisely defined, though as I said in Re an Application for Bail by Massey [2008] ACTSC 145 at [8], it requires generally the applicant for bail to show some unusual or uncommon circumstances that would justify the grant of bail. They do not, of course, need to be unique.

14. In the context of bail pending an appeal to the Court of Appeal, I indicated in Sherd v The Queen (at 299; [47]) that the fact that a sentence of imprisonment imposed on the applicant will have been fully or substantially served before the appeal is heard, will ordinarily amount to such a circumstance. Similarly, the prospect that the appeal is “most likely to succeed”, in contrast to where there is merely a fairly arguable ground of appeal, may be relevant, in combination with another factor or by itself: see Re Clarkson [1986] VR 583 at 586).

15. Courts have, however, cautioned that the power to grant bail pending appeals should be exercised with extreme caution: see R v Giordano (1982) 31 SASR 241 at 242–3.

16. Mr McCarthy has appealed against the conviction on a number of grounds. Three relate to the trial judge’s decision to permit evidence to be admitted of uncharged acts, which appears to have been relationship evidence, and two related to the directions given by the trial judge to the jury about this evidence. There were other grounds relating to the trial judge’s directions and grounds that the trial judge erred in interfering with the jury’s freedom to deliberate without pressure and by failing to ensure that the jury’s verdict was unanimous. However, the only grounds said to have such prospects of success that bail should be granted were those relating to the decision to admit evidence of uncharged acts or relationship evidence.

17. A copy of the trial Judge’s reasons for ruling that the evidence I have referred to above was admissible is before me: Transcript of Proceedings, R v McCarthy (Unreported, SCC335/2008, Marshall J, 14 November 2011). The decision as to whether to admit the evidence was made at a pre-trial hearing under r 4752 of the Court Procedures Rules 2006 (ACT). At the end of the argument, his Honour said (at 16): I am satisfied that the evidence of previous misconduct, as I would call it, referred to in the application to adduce relationship evidence is admissible and relevant to establish the context in which the actual charged acts are alleged to have occurred going to relationship issues and providing a background to the matters the subject of the count. I am also satisfied that under section 137 that any direction I give will ensure that any prejudice that occurs will be outweighed by the probative value of the evidence. Of course if it became necessary to do so I will publish reasons at a later time, giving much fuller reasons for that ruling.

18. I assume that when the jury returned a guilty verdict and an appeal was commenced, the need for reasons became apparent and his Honour prepared and published them. I have read them: R v McCarthy (Unreported, Supreme Court of the ACT, Marshall J, 13 February 2012). It is true that they make no reference to the terms of s 137 of the Evidence Act 1995 (Cth), or indeed any other sections of that Act, but it is clear to me that they address the very issue in that section because they incorporate the direction given by his Honour, which he had considered would ensure that the prejudice would be outweighed by the probative value of the evidence.

19. A number of challenges were made to his Honour’s reasons. These included that the evidence was tendency evidence and that there was no compliance with the provisions of s 101 of the Evidence Act. In Conway v The Queen (2000) 98 FCR 204 at 233; [95], the Full Court of the Federal Court of Australia (then the appellate court from the ACT Supreme Court) held that relationship evidence was not tendency evidence. Whether that needs to be reconsidered and whether it should be on this appeal, that decision means that at least that on this point, the appeal does not enjoy such prospects of success as to justify bail.

20. Mr Thomas also submitted that his Honour had erred in the following ways: (a) his Honour had not in the ruling referred to the relevant provisions of the Evidence Act. Whilst that is true, his Honour did refer to s 137 of that Act in the order he made (see above at [16]), which was, of course, the order for which he was giving reasons; (b) his Honour did not refer to how the evidence sought to be adduced was relevant to a fact in issue. That was, in fact, addressed by counsel for the Crown at some length in the hearing. Whether it was adequate is not a matter for consideration on this application, save to say that it sought to link the circumstances of the offence to the nature of the relationship between Mr McCarthy and the complainant when they were in an intimate relationship. His Honour did record the basis in his reasons (at [3]–[4]) in terms which accurately summarised the submissions of the Crown. Again, whether these were adequate is not a matter which I can weigh on this application. They were certainly of a kind supported by authority, such as WFS v The Queen [2011] VSCA 347 at [38]; (c) his Honour relied on decisions of the Victorian courts which, at the relevant time, were not regulated by provisions similar or identical to those in the Evidence Act. It is true that his Honour referred to one case which was in that category, namely, R v Saddler (2008) 20 VR 69. In that case, however, the reference to relationship evidence was entirely a reference to the common law, as indeed was the leading case on which Mr Thomas very substantially relied, namely HML v The Queen (2008) 235 CLR 334. In any event, his Honour’s reliance was certainly more directly to WFS v The Queen, which was decided under the uniform evidence law and which was a clear basis to justify the admission of the evidence; (d) his Honour did not analyse the evidence as to its relevance and its admissibility. This challenge seemed to suggest that his Honour was required to address each incident of which there would be evidence and to subject it separately to the kind of analysis Mr Thomas said was required. Mr Thomas cited no authority for this approach. He did refer to R v Fletcher (2005) 156 A Crim R 308. There are two things to be said about that decision: (i) it was a case about tendency evidence, not relationship evidence; and (ii) it is true that Simpson J, with whom McClellan CJ at CL agreed, said (at 316; [34]) that “[i]n some cases precise identification of [the fact in issue] ... might be critical to the process”. However, her Honour continued (at 316–17; [34]): In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant. The appeal was dismissed. In addition, Mr Thomas was not able to point to any written or oral submission made to the learned trial Judge in which it was submitted that his Honour had to disaggregate the evidence and analyse it as alleged. No submissions were made as to separate parts of the evidence which would fall into different categories or need to be analysed differently.

21. While, of course, I am not making any comment on whether these or any other grounds may succeed at trial, my task is simply to assess whether there is such a strong case on appeal as to satisfy a grant of bail. None of the argued grounds reached that level as required by authority.

22. Mr McCarthy’s counsel also relied on the fact of the passage of time since the offences and today. In particular, it was noted that Mr McCarthy was summonsed to appear in the Magistrates Court on 31 March 2008 and if his appeal is heard in August 2012, as appears likely, it will have been four years and four months between his first appearance and the hearing of the appeal. He has, of course, not been in custody for that period. He was on bail prior to being sentenced and there appears to have been no problems with his bail during that time.

23. It is fair to say that Mr McCarthy has reason to express concern at this delay. It appears from the chronology annexed to his solicitor’s affidavit filed in support of this application that the trial was thrice postponed, twice because the pressure of business of this Court ­– which has been of such concern to this Court, the profession and no doubt to the public – simply meant that the trial could not proceed when it was listed. On the third occasion, the complainant could not attend because of medical reasons.

24. Sympathetic as I am to the delay prior to trial and the stress and disruption that are inevitable concomitants, I do not consider the pre-trial delay can (other than, possibly, in particular circumstances not presently relevant) constitute a special or exceptional circumstance justifying either a stay of proceedings or a grant of bail.

25. It is accepted that Mr McCarthy has grown up in Canberra with close ties to the community, with stable employment and family resident also in Canberra. These are matters that would support a grant of bail, but do not amount to special or exceptional circumstances, either alone or in combination with any of the matters that have been raised.

26. Having carefully considered the submissions made on Mr McCarthy’s behalf, I am satisfied that the application for bail has not been made out and the application should be dismissed. I shall so order.

27. Accordingly, I order that the application for bail be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 23 May 2012

Counsel for the Crown: Mr A Joseph, Mr J Lundy, Mr T Jackson

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: Mr R Thomas

Solicitor for the accused: Capon & Hubert Lawyers & Mediators

Date of hearing: 16, 19, 28 March 2012

Date of judgment: 28 March 2012

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