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[2012] NSWCCA 88
Court of Criminal Appeal (NSW)
2012-05-01
Hoeben JA, Hulme J, Schmidt J, Fullerton J
Original judgment source is linked above.
EX TEMPORE Judgment 1HOEBEN JA: I agree with the reasons of Justice Schmidt and with the observations of Justice Hulme. I also join in Justice Hulme's recommendation to the Department of Corrective Services that it provide reasonable assistance and facilities to allow the applicant to prepare his appeal. Otherwise I agree with the orders proposed by Justice Schmidt. The orders of the Court will be those proposed by Justice Schmidt. 2RS HULME J: I agree with the orders proposed by Schmidt J and substantially with her Honour's reasons. I would, however, add some remarks of my own. One of the matters referred to in s 32 of the Bail Act and which the Court is required to take into account in considering whether to grant bail is the interests of the applicant having regard to the needs of the person to be free to prepare for the person's appearance in Court or to obtain legal advice or both. Those needs are obviously greater in circumstances such as those we are informed exist here where the Legal Aid authorities have declined to assist the applicant in his appeal. Persons charged and persons convicted who have lodged an appeal are entitled to prepare their case or have their case adequately prepared for consideration by courts. 3Recently I had occasion to grant bail to someone who would not otherwise have received it because on the evidence in that case the Corrective Services Department was not providing reasonable facilities for the applicant to prepare his case. The applicant today makes a similar complaint. He subpoenaed from the Corrective Services Department his file and, although it has not been formally tendered, in anticipation of the hearing today I skimmed through the many hundreds of pages which were there. 4It is apparent that since December of last year the applicant has made a number of representations to the authorities for access to a legal library or cases contained therein and for time in which to prepare his appeal. Although in the documentation it is clear that to some degree the applicant's requests have received favourable treatment, it is by no means apparent that he has been provided with reasonable time and facilities. The limited evidence which the applicant put before the Court in this connection was not such as to inspire or require a response by the Corrective Services Department and accordingly I make no concluded judgment on the topic. However, what I have seen does tend to reinforce the impression I have derived in other cases that the Corrective Services Department do not provide what an outsider would regard as reasonable facilities for someone such as the applicant in the circumstances that he is in. 5The Department must realise that if the only way that an accused person or appellant can prepare his case is by being granted liberty then that is the course which the Court might have to take. 6As I have indicated, I express no concluded view in this case. I merely wish to record that what I have seen is a cause for concern and I would urge the Department to ensure that the applicant is provided with sufficient time and sufficient facilities in which to prepare his case. That is, of course, not a suggestion that the Department has to provide the applicant with whatever in those respects he may require. Clearly the custodial authorities have other matters which they must bear in mind. 7There is another matter to which I refer because it also has a bearing on the topic. The applicant has complained that he has been hampered in his preparation by frequent moves from one gaol to another. A study of his file suggests that the Corrective Services Department has not found the applicant an easy person to deal with. That said his custodial history shows that since 2007 he has been moved some eighteen times between one corrective institution and another and that since October of last year he has been moved six times. It is difficult to believe that this is an efficient use of gaol resources and certainly it adds support to his complaint that he has been unduly hampered in the preparation of his case. I find it hard to believe that the number of changes in his correctional services centre over the period can reasonably be justified. That said I have indicated that I agree that the appeal should be rejected. 8SCHMIDT J: The applicant seeks a review of a bail determination made by Fullerton J on 2 February 2012, under s 45(1)(b) of the Bail Act 1978. The Crown opposes bail being granted. The applicant appeared unrepresented before Fullerton J and on appeal, as he explained because he has been refused legal aid. 9The applicant was charged with three offences under s 61I of the Crimes Act 1900, of having sexual intercourse without consent, in July 2005. In 2007, he was tried by a jury before Conlon DCJ. He was acquitted of one count and convicted of the other two. The applicant was remanded in custody and on 1 November 2007 he was sentenced to two partly accumulated prison terms of 7 years and 6 years, with non-parole periods of 5 and 4 years respectively. His earliest release date is 29 June 2012, although on his case he is unlikely then to be released on parole. 10The applicant first filed a notice of intention to appeal on 8 September 2008. By a further notice filed on 14 October 2008 the appeal was abandoned. A further notice of intention to appeal was filed on 15 February 2011 and an application for leave to appeal was filed on 11 November 2011. Thirty one grounds of appeal were there advanced, including that:
The application must be refused 27In my view the application must be refused, the applicant not having met the onus which falls upon him to establish the existence of the necessary special or exceptional circumstances. 28Under s 32(1)(b)(ii) of the Bail Act, the needs of the applicant to be free to prepare for his appearance in court or to obtain legal advice is one of the matters to be taken into account in determining an application for bail. That incarceration has a negative effect on the applicant's ability to prepare for the hearing of his appeal may well be accepted. Of itself, however, this cannot establish that the special or exceptional circumstances which s 30AA requires be shown, exist. 29The applicant is an articulate, educated man. He has advanced lengthy, lucid submissions to support his bail application. When this is considered together with the steps which the applicant has taken to pursue his appeal and bail applications, it is not open to conclude that he has been so inhibited in putting his case, that thereby special or exceptional circumstances have been shown to exist. 30The other matters on which the applicant relied, such as his criminal history, his compliance with earlier bail conditions, the complainant's present whereabouts and his family circumstances, are all matters which would support a grant of bail, were this an ordinary bail application. These matters cannot, however, establish that special or exceptional circumstances exist. Nor has the applicant demonstrated that his appeal is likely to succeed. 31That the applicant has arguments to advance in respect of the various matters which he wishes to pursue, is apparent. The applicant submitted that the ground of appeal on which he is likely to succeed is that relating to the ex officio charge. That was a charge of which he was acquitted. Even so, he complained that as the result of the laying of that charge, the trial had been unfair. The applicant also identified other grounds likely to succeed to be that there was an unreasonable verdict and the failure to give directions in relation to delay in complaint and other matters, as well as a tainted police investigation. The applicant's written submissions are replete with authorities on which he wishes to rely to make out that and other grounds which he wishes to advance. Some of the grounds advanced may be arguable, but their merits will plainly require an examination of what in fact occurred at the trial. On the case advanced the applicant has not established that any of the grounds advanced are likely to succeed. 32In those circumstances it must be concluded that the necessary special or exceptional circumstances have not been shown to exist and the application must be refused.
33For these reasons, I would order that the application for bail be dismissed. 34I also indicate that I join in the recommendation which has been made to the Department.
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Miles
R