Owen James Salmon v Regina

Judgment 1THE COURT: Mr Salmon (whom we shall refer to as the applicant) seeks a review of a bail determination made by Hall J in the Supreme Court on 7 th January 2011. This application was first listed before R A Hulme J on 27 th January 2011. On that date, Hulme J determined that he did not have jurisdiction, as a single judge, to review the decision of Hall J. This was because of the terms of s 45(3) of the Bail Act 1978 . The Court of Criminal Appeal may review any decision in relation to bail, in relation to an order made by the Supreme Court (s 45(1)(b)). However s 45(3) prevents a judge of the Court of Criminal Appeal, sitting alone, from reviewing a decision of a judge of the Court unless the Rules made under the Supreme Court Act 1970 so provide. There are no rules that permit such a review. Consequently, the review application was listed for hearing before this court and was heard on Wednesday 23 rd February 2011. The applicant was self-represented. Ms Gouda appeared for the respondent. The Crown opposed bail. Our decision was reserved until 10am Friday 25 th February 2011. 2On 15 th December 2009, a jury had found the applicant guilty of three offences: larceny (Count 1), assault (Count 2) and robbery (Count 3). Each offence had been committed on 12 th March 2009. The facts found by the sentencing judge (Ainslie-Wallace DCJ) indicated that, after a financial dispute between the applicant and his victim, the applicant visited her office. While he was there he stole her computer modem and router. These were the facts supporting Count 1. At about 12:00pm the same day, the applicant returned to the victim's office and physically assaulted her. Those facts comprised the assault in Count 2. 3The applicant then reached over to the victim's computer, pulled the cords out and grabbed the computer. The victim tried to stop him taking the computer. The offender swung himself and the victim around and shoved her to cause her to release her hold on the computer, eventually pushing her, whereupon she lost her grip. The offender made off with the computer down the stairs. The victim followed, whereupon the applicant raised his arm, clenched his fist as if to punch her, put his face close to hers and said to her, "You're dead", at which time she ceased following him. These facts made up Count 3 in the indictment. 4The applicant was remanded in custody following conviction on 15 th December 2009. A Notice of Intention to Appeal against conviction was filed on 19 th January 2010. Pending sentencing, the applicant applied for bail in the Supreme Court. The application was heard by R S Hulme J on 3 rd February 2010. On that date, his Honour dismissed the application. 5The applicant was sentenced by her Honour Judge Ainslie-Wallace on 19 th March 2010, as follows: (1)Larceny: fixed term of imprisonment for one month, to date from 14 th December 2009 and to expire on 13 th January 2010. (2)Assault: fixed term of imprisonment for three months, to date from 14 th January 2010 and to expire on 13 th April 2010. (3)Robbery: non-parole period of one year to date from 14 th March 2010 and to expire on 13 th March 2011, with a balance of nine months, to expire on 13 th December 2011. 6Thus it will be seen that, in practical terms, the sentencing judge imposed an overall non-parole period, by way of accumulation and concurrence, of fifteen months. 7A Notice of Intention to Appeal against conviction and a Notice of Intention to Apply for Leave to Appeal against sentence were filed on 25 th March 2010. An extension of time was granted for the filing of notices, grounds and submissions, and these were filed on 28 th October 2010. 8The matter was originally listed for hearing in the Court of Criminal Appeal on 14 th December 2010. However, on 2 nd December 2010 the hearing date was vacated on the applicant's application. A further hearing date of 2 nd March 2011 was also vacated on the applicant's application. The appeal is now listed for hearing on 27 th May 2011. As appears from the sentencing details, the applicant is to be released to parole on 13 th March 2011, that is in a little over two weeks' time. 9The present application for a review is a hearing de novo ( Petroulias v R [2010] NSWCCA 95 at [13]; R v Hamill (1986) 25 A Crim R 316). 10Although the present review is a hearing de novo, it is not inappropriate to note the basis on which the application for bail was refused by Hall J in his carefully considered and detailed decision of 7 th January 2011. His Honour said, at [41]:- What must be established are grounds of appeal that are certain to succeed, and ones which can be seen from themselves and the material put forward, without any detailed argument, to be certain of success. That test, his Honour said, had not been met in the bail application he heard. 11The reason for such a stringent test derives from the terms of s 30AA of the Bail Act 1978 . This provides: Notwithstanding anything in this Act, if: (a) an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence passed on conviction on indictment, or (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a), bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail. 12The accepted principle derived from the use of the expression "special or exceptional circumstances" in the legislation is well settled ( Wilson v R (1994) 34 NSWLR 1) and was correctly identified by Hall J in the decision under review. See also R v Southgate (1960) 78 WN (NSW) 444 and (more recently) Director of Public Prosecutions v SKA [2009] NSWCA 51. 13The grounds of appeal in the notice filed in October 2010 identified two grounds against conviction. The first was that the trial miscarried as a result of hearsay evidence being admitted. The second was that the trial miscarried as a result of the trial advocate putting to the jury that the appellant had lied in relation to twelve matters, none of which had been put to him in cross-examination. 14The grounds of appeal against sentence were, first, that the trial judge had not had regard to the fact that the offending conduct could have been dealt with in the Local Court, where a lower maximum penalty would have applied. Secondly, that the learned judge erred in failing to reflect her finding as to the low objective seriousness of the robbery in the sentence. Thirdly, that the principles of totality were offended by the sentencing judge partially accumulating the sentences and for effectively "double punishing" the offender for the assault charge. The fourth ground was that the sentence was manifestly excessive. 15It is appropriate to note that in the proceedings before Hall J, his Honour pointed out that there had been an earlier application for bail following conviction. This had been dealt with by Price J in the Supreme Court. In relation to this application, Price J had refused bail on 7 th December 2010, precisely on the basis that the grounds of appeal against conviction did not constitute special or exception circumstances such as to justify bail. Similarly, his Honour considered that the grounds in the severity appeal could not enable it to be said that the appeal was virtually certain to succeed. 16Further, Hall J said that in the hearing before him, there were now fifteen grounds of appeal against conviction. These were set out in a draft document handed to him. Six sentencing grounds were contended for in oral submissions. There was a degree of overlap between the old and new grounds. It was on the basis of these more comprehensive grounds, at least in numerical terms, that the applicant had submitted to Hall J that special or exceptional circumstances were established. His Honour concluded that in order to satisfy s 30AA, the matters which were contained in the supplementary grounds of appeal could not constitute special circumstances unless there was material from which a judge could assess, firstly, that there was a cogent basis to support the grounds, and secondly, that it was almost certain to result in a successful appeal, based on those grounds. 17As we have said, Hall J examined the extensive material relied on by the applicant but did not consider that any of the material satisfied the statutory test. 18It is fair to say that we have been provided with precisely the same material given to Hall J. That material, however, has itself been supplemented by other material. It will be convenient to list the material we now hold, it forming the entire basis of the applicant's submissions. (1)53 page bundle of submissions, including draft grounds of appeal against conviction and sentence (this material was originally before Hall J) (2)41 page bundle of material in support of review submissions (new) (3)Bail chronology and attachments (these were prepared by the respondent for the purposes of an earlier bail application) (4)Case law relied upon in conviction appeal (dealing with Crown misconduct) (new) (5)List of special or exceptional circumstances relied on by the applicant (new) (6)Ground 11 details and argument (new) 19It will be convenient at this stage to set out the draft grounds of appeal against both appeal and sentence as they were formulated before this court. It should be emphasised that they are draft grounds only at this stage. They represent the applicant's current thinking and no doubt may enlarge or diminish as his appeal is further prepared.