R v JC

The proper approach to s 22 of the Bail Act

There is some dispute between the parties as to the proper approach to s 22 of the Bail Act. Rather, the Crown submits that I should follow the approach of Walton J in R v Rodriguez [2020] NSWSC 1660 ('Rodriguez'), whereas the applicant submits that his Honour's approach to the assessment of special or exceptional circumstances was not consistent with the Court of Criminal Appeal decision in El-Hilli, to which I have already referred.
Perhaps the real point of distinction between the parties is the test that should be applied in considering the applicant's prospects of success on appeal. In Rodriguez, his Honour assessed each of the factors relied upon by the applicant and, following that, the strength of the appeal. His Honour did not consider that any of the individual factors relied upon by the applicant would provide any basis for a finding of special or exceptional circumstances. In his Honour's view, that left only a consideration of the applicant's prospects of success on appeal. His Honour decided that, in circumstances in which the only factor available to the applicant for the purposes of establishing special or exceptional circumstances was the grounds of appeal, the proper approach was to consider whether the appeal was likely to succeed.
The applicant submits that the approach adopted by his Honour in Rodriguez, that is, by assessing each factor on an individual basis and then coming to the last factor (being an assessment of the strength of the appeal) was in error, although I do not apprehend that the applicant goes so far as to submit that if the only factor relied upon by the applicant was the strength of the appeal, then the standard imposed by his Honour being "likely to succeed" was in error.
The point made by the applicant is that he relies on a combination of factors which includes his prospects on appeal. The applicant submits that, whilst it is a matter for the Court what weight it should give to each factor, the Court does not consider each factor in isolation, accepting or rejecting each factor, and then determining what test should be applied in respect of the prospects of appeal.
The applicant submits that it is only necessary for the applicant to establish that special or exceptional circumstances exist, leaving it to the Court to give such weight as it thinks fit to each of the factors. That may involve the Court giving no weight to certain factors or it may involve the Court giving significant weight to certain factors and little weight to other factors. The applicant submits that I should not treat this application as one in which it is necessary for the applicant to establish that each of the factors he relies upon constitutes special or exceptional circumstances prior to considering the prospects on appeal.
Again, in El-Hilli, Hamill J observed at [26]-[27]: [26] In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulious v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is "most likely" to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v R at 310-311; Marotta v R at 266; R v Velovski at [24]-[25]. [27] This approach also accords with the language of s 18(1)(j) of the Bail Act 2013 which provides: 18(1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division: (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success.
Having regard to El-Hilli, I accept that where the merit of the appeal is relevant as a part of a combination of factors (rather than as the sole factor), the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success. It is again notable that in El-Hilli, when considering the combination of factors that may be relevant in assessing special or exceptional circumstances, Hamill J observed that two features which frequently arise are: (1) the merit of the appeal; and (2) the possibility that the applicant will have served a substantial part of their sentence or non-parole period before the appeal is determined. As I have already indicated, the applicant relies on both of these factors, as well as a number of other factors in pursuing this application.
I hasten to add that the legislature has not sought to limit or prescribe what may constitute special or exceptional circumstances for the purposes of s 22 of the Bail Act. Each case must depend on its own facts and circumstances. The task is necessarily evaluative, particularly in circumstances in which an applicant puts forward a combination of factors (as in this case).
In my view, the task of the Court in determining whether special or exceptional circumstances exists - in a case where the applicant puts forward a combination of factors - is for the Court to consider the factors and give such weight to the factors as it considers fit, perhaps placing particular weight on some of the factors and little weight on the other factors. In this regard, I accept the submission of the applicant that it is not for the Court to simply dismiss an individual factor as being irrelevant (unless of course the Court is satisfied that it could not have any weight) when considering whether special or exceptional circumstances exist.
This is best demonstrated by one of the factors relied upon by the applicant, being hardship to the applicant's partner and the need for the applicant to be at liberty to care for his partner. At least in my experience, that is a factor often raised in bail applications but the extent of the hardship often varies and in some cases the extent of the hardship is really that the fact of the applicant's imprisonment means he is no longer around to help around the house or complete the ordinary chores. That may be considered a hardship but the extent to which weight might be placed on such a factor might be limited.
On the other hand, in some cases (and the applicant submits this is one) the hardship to the applicant's family might be severe, particularly when the person at home suffers from a disability or has suffered an injury and requires full-time care. I will come back to this factor relied upon by the applicant shortly.

Circumstances of offending

In 2013, the applicant and a person who I will name only as "AS" were married. Their daughter was born in March 2015.
In 2016, both the applicant and AS commenced a relationship with another lady, who I will refer to as "BH", which has been referred to as a polyamorous triad relationship. BH moved in with the applicant and AS.
AS left the premises where they were living in November 2017. BH followed in January 2018.
Subsequent to them both moving out, AS revealed to her counsellor that certain incidents had occurred during her relationship with the applicant. Following a report to the police, the applicant was arrested and charged with counts 1 and 2. Then, during a police search on 10 May 2018, a hard drive was located at the applicant's home on which child abuse material was located.
Without detailing all of the background to the charges against the applicant, the Crown alleged that the applicant had a sexual interest in children and he acted upon this interest in engaging in role play with both AS and BH. They called him "daddy" and are said to have played the role of his daughter when he demanded. It is alleged this conduct continued after the birth of the child.
Count 1 was an allegation that the applicant and AS had engaged in consensual intercourse while AS was breastfeeding the child when the child was around two years old. His Honour found the applicant not guilty by direction.
Count 2 involved an allegation that, during intercourse between the applicant and AS, the applicant ejaculated on the child at the conclusion of such intercourse. The Crown relied on the evidence of AS that this was not the first occasion on which this had occurred as tendency evidence to support count 2.
In respect of count 3, the Crown alleged that there was child abuse material on a hard drive that was found in the home in which the applicant lived alone, that is, after AS and BH had moved out. The Crown alleged, and the trial judge accepted, that the applicant was in possession of that child abuse material.
During an ERISP interview after being arrested, the applicant denied all of the conduct constituting counts 1, 2 and 3.
His case at trial was that he did not have a sexual interest in children or incest and that the conduct relied upon for counts 1 and 2 did not occur. He said he was not aware that the hard drive had any child abuse material stored on it.
He also gave evidence, and adduced evidence through AS, that AS had a sexual interest in incestuous intercourse with children.
Critical to the outcome at trial was the evidence of AS and BH. As I understand it, only AS was present during the acts which were said to constitute count 2. BH gave evidence which was said to have corroborated the evidence of AS. BH also gave evidence to support tendency evidence including that she had observed child abuse material on the applicant's computer at some stage prior to the events leading to count 2 and count 3.
The trial judge accepted in general terms the evidence of both AS and BH. In particular, the trial judge found that BH presented as a credible witness. Importantly for the purposes of this application, and indeed the applicant's appeal, BH specifically denied any interest in what I can only describe as incestuous role play or playing the role of a daddy and a child in sexual activities. Plainly, the trial judge accepted her evidence on this issue.
Although the applicant complains of a lack of reasons as to why his Honour did not accept the applicant's evidence, it is plain that his Honour accepted the evidence of AS and BH and did not accept the evidence of the applicant. They were in stark contrast.
The applicant seeks leave to appeal both on conviction and sentence. The applicant raises six grounds of appeal. I have received amended submissions of the applicant on the conviction appeal. The grounds of appeal are: Ground 1: a miscarriage of justice was occasioned when the trial judge did not direct himself that the evidence of AS may have been unreliable because she was reasonably suspected of being criminally concerned in the events giving rise to the proceeding, in accordance with s. 165(1)(d) of the Evidence Act. Ground 2: a miscarriage of justice was occasioned because the trial judge did not direct himself in accordance with R v Murray (1987) 11 NSWLR 12. Ground 3: the trial judge erred in failing to apply the Liberato direction; or alternatively, failing to give reasons exposing how he applied the direction, as required by ss. 133(2) and 133(3) of the Criminal Procedure Act 1986. Ground 4: The learned trial judge erred in determining the verdicts by reversing the onus of proof. Ground 5: The verdicts in respect of Counts 2 and 3 are unreasonable and cannot be supported by the evidence. Ground 6: There was a miscarriage of justice in that there is a significant possibility the Court would have reached a different verdict had the Court been aware of evidence of witness BH's sexual interest in 'age play' and in calling her sexual partner 'Daddy.'
As is often said, it is difficult to assess the strength of an appeal on an application such as this. That is necessarily because the Court is not provided with all of the evidence and does not have an opportunity, for example, to review the entire transcript. The Court is very much reliant upon the judgment and the submissions of the parties which provide a general summary as to the evidence.
As part of the appeal, the applicant seeks to rely on fresh evidence. The fresh evidence is in the nature of material posted online by the witness BH on a website known as fetlife.com. The applicant submits that the material posted on that website suggests that the witness BH was not being truthful when she gave evidence in denying any interest in the relevant sexual conduct, which I have described as incestuous sexual conduct or daddy/child type conduct.
The applicant submits that if this evidence had been available, there was a significant possibility that there would have been a different verdict, bearing in mind the fact that, on the applicant's case, the trial judge accepted the evidence of BH and, indeed, accepted BH's evidence as to there being earlier child abuse material found on the applicant's computer, which was then used as part of the tendency evidence.
I will deal briefly with each of the proposed grounds of appeal as part of making my assessment as to the prospects on appeal. Of course, anything I say is merely a view formed based on the somewhat limited information available to me at this time.
The first three grounds of appeal involve the trial judge erring in not making appropriate directions or giving warnings to himself. Ground one is that a miscarriage of justice was occasioned when the trial judge did not direct himself that the evidence of AS may have been unreliable because she was reasonably suspected of being criminally concerned in the events giving rise to the proceedings in accordance with s 165(1)(d) of the Evidence Act 1995 (NSW). At the time that the applicant is said to have ejaculated on the child, he was engaged in consensual intercourse with AS. I understand the effect of the submission and argument on appeal to be that the trial judge erred in failing to warn himself of the need for caution in determining whether to accept AS's evidence in such circumstances.
The Crown submits that leave is unlikely to be granted on this ground because the applicant's counsel at trial deliberately did not seek such a warning and, even if his Honour should have given himself such a warning, a fair reading of the judgment suggested that his Honour carefully considered the evidence in that regard.
The applicant emphasises that AS was reasonably suspected to be criminally concerned in the events and her evidence was of a kind which may be considered unreliable, such that the warning under section 165 was required. This is particularly so in circumstances where AS was given a certificate under section 128 of the Evidence Act.
However, as the Crown submits, the Crown did raise with the trial judge whether a 165(1)(d) direction should be given; his Honour declined to do so and the applicant's counsel did not demur when given an opportunity thereafter.
The second ground of appeal is that the trial judge failed to give himself a Murray [1] direction. Again, there is a requirement for leave pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules. The applicant submits that although AS was not a complainant, she was the principal witness and his Honour should have directed himself that he should carefully examine her evidence, treat it with caution and ensure that he was satisfied of it beyond reasonable doubt.
The Crown submits that neither the Crown nor the applicant's Counsel suggested that his Honour should be giving a Murray direction at the trial, such that it seems unlikely that leave on this ground would be granted or that the applicant could establish that a miscarriage of justice occurred.
The third ground is that the trial judge erred in failing to apply the Liberato [2] direction, alternatively failed to give reasons as to how he applied the Liberato direction as required under ss 133(2) and 133(3) of the Criminal Procedure Act 1986 (NSW). As I understand that ground, it has been refined. The applicant accepts that his Honour did give a Liberato direction, although the applicant maintains that his Honour did not expose his reasoning in rejecting the evidence of the applicant. There may be some merit in what the applicant says in terms of reasoning, although it seems clear from the judgment that as the trial judge had accepted the evidence of both AS and BH, the evidence of the applicant could not stand.
For example, his Honour rejected the applicant's evidence that both AS and BH used the name "daddy" as a pet name for him and rejected the applicant's claim that he did not hold any sexual fantasies, beyond having an interest in "hippy" and "gothic" women. His Honour also rejected the applicant's evidence that he was not aware of the child abuse material on the hard drive.
It is difficult to assess the strength of the first three grounds of appeal. In circumstances in which trial counsel did not seek such directions at trial, there must always be a doubt as to the applicant's prospects of succeeding on such grounds. Further, it is apparent that the trial judge did give himself a Liberato direction and I am uncertain as to the strength of the applicant's contention that his Honour did not disclose adequate reasoning for his rejection of the applicant's evidence.
I make a similar comment in respect of ground 4. That is, that the trial judge erred in determining the verdicts by reversing the onus of proof. That is not apparent from my reading of the judgment.
Ground five is that the verdicts are unreasonable and cannot be supported by the evidence. As is well known, the question to be addressed is whether the Court thinks that upon the whole of the evidence, it was open, in this case to the trial judge, to be satisfied beyond reasonable doubt that the accused was guilty. [3]
The applicant submits that the nature and quality of AS's evidence on count two was not sufficient to support a conviction. The applicant raises various criticisms of AS's evidence. Having said that, of course, the tribunal of fact (being the trial judge) accepted AS's evidence. I accept the submission of the Crown that it would be difficult based on the limited evidence before me, to form any view as to the strength or prospects of success on establishing that the verdict was unreasonable.
However, at least on one view, the fresh evidence on which the applicant seeks to rely may be particularly significant. On my reading of his Honour's judgment, his Honour accepted the evidence of BH as credible. His Honour accepted BH's denials of having an involvement or interest in the type of sex to which I have already referred in this judgment.
BH's evidence was particularly critical in terms of the tendency evidence. I have been provided with a number of screen shots said to be of an online account run by BH and photographs of BH. The Crown submits that the applicant has not established that it was BH's account or that the photographs or screenshots are of BH.
However, the Crown provided a letter from the relevant police officer in support of its position on special and exceptional circumstances. Whilst I do not rely on that letter in terms of the police officer's opinion as to whether bail should be granted, I am entitled to rely on the content of the letter in terms of matters of fact. Contrary to the Crown's submission, the police accept that the material provided by the applicant for the purposes of this application does come from an account or site operated by BH and that the photographs are of BH.
Those photographs are somewhat disturbing in nature, but that is not really the point. The point is that there are photographs of BH shown with a dummy in her mouth and another photograph where the word "daddy" is written across her thigh close to her genital area.
The applicant submits that these photographs support his evidence to the effect that it was BH who had an interest in the subject matter and that BH's denials of having any such interest should not be accepted.
Whilst the police officer tends to suggest they may not be significant, at least from my perspective I am not so sure about that.
In my view, the matters raised by the applicant on appeal could not be said to be unarguable or hopeless. Indeed, the Crown does not make that submission. The Crown's only submission, as I understand it, is that I would not be satisfied on the appropriate test. The appropriate test, according to the Crown, is whether the appeal is "likely to succeed." As I have already indicated, I do not accept that in a case involving a combination of factors, that is the appropriate standard.
I am satisfied, having regard to matters raised by the applicant and the grounds of appeal, that the appeal is reasonably arguable.
The applicant relies on a combination of factors. As I have already indicated, I must give such weight to the factors as I deem appropriate for the purposes of determining whether the applicant has established special or exceptional circumstances.
The applicant is serving a term of imprisonment with a non-parole period of 2 years and 7 months. He will be eligible for release to parole on 22 January 2025. There appears to be no dispute between the parties that having regard to the current state of preparedness for the Court of Criminal Appeal and the fact that the applicant has been in custody since November 2022, it may be that the applicant would remain in custody pending determination of the appeal for perhaps 18 months (particularly allowing for some time for the Court of Criminal Appeal to deliver judgment in what will be a complex matter). In other words, the applicant may not receive a determination on his appeal until some date in 2024.
That period would constitute a significant portion of the time which he is due to spend in custody before he is granted parole; it could be up to two thirds of that period. As was again observed in El-Hilli at [18] (citing R v George Patrick O'Neill, Court of Criminal Appeal (NSW), Mathews J, 13 May 1992, unrep): "…one of the matters which has long been treated as constituting special circumstances under this section is the circumstances of the applicant who will, by the time his appeal is heard and disposed of, already have served a substantial portion of his sentence."
In my view, the applicant's prospects on appeal and the fact that he will spend a substantial part of the non-parole period in custody before the appeal is determined are matters of significant weight in considering whether special or exceptional circumstances have been established.
I consider that the other matters relied upon by the applicant are of less weight, but still matters which have some relevance as part of a combination of factors. The applicant's partner underwent a hip operation in mid-2022. She has not recovered from the operation as she may have expected; she would be relying on the applicant for care should he not be in custody. I have received a significant amount of medical evidence about the nature and extent of her condition. I accept that she is suffering hardship because the applicant is in custody, although I note that the hip operation took place six months ago.
I accept that the hardship to the applicant's partner, as set out in her own affidavit and as referred to in the medical evidence, is a relevant factor, although I would give it less weight.
Similarly, I consider that the Court needs to be somewhat cautious in accepting the proposition that strict bail conditions should be given significant weight for the purposes of establishing special or exceptional circumstances.
There is no doubt that strict bail conditions are a factor which are often considered for the purposes of whether the applicant has shown cause in accordance with s 16A of the Bail Act in different circumstances. However, that is not a special or exceptional circumstances test.
Having said that, the fact that the applicant was on bail and complied with bail for a period of over four years whilst awaiting determination of the charges against him is a factor to which some weight should be given.
Consistent with El-Hilli, I adopt the approach of considering all of the factors raised by the applicant and giving such weight as to the factors I consider appropriate. In this matter, I have concluded that all of the factors relied upon by the applicant must be given some weight, that is, I have not excluded any as being irrelevant.
As such, in my view, the applicant has demonstrated that special or exceptional circumstances exist which justify the bail decision within the meaning of s 22 of the Bail Act through the combination of factors that I have already outlined.
Having established special or exceptional circumstances, I must then go on to consider whether bail should be granted, having regard to the unacceptable risk test.
As I have already indicated, the Crown does not raise any bail concerns and does not suggest that the applicant would pose an unacceptable risk if special or exceptional circumstances are established.
Having said that, of course, I must be so satisfied. I am so satisfied, subject to the imposition of appropriate bail conditions, particularly having regard to the nature of the offending.
In the circumstances, I propose to grant bail on the following conditions: 1. The applicant is to be of good behaviour. 2. The applicant is to live at [redacted] with his partner [redacted] and nowhere else. 3. The applicant must remain at those premises between 9.00pm and 7.00am except in the event of a medical emergency. 4. The applicant is to report to Eastwood Police Station each day between the hours of 8.00am and 6.00pm. 5. The applicant is not to be alone with any child, including his partner's child, unless in the company of an adult. Travel and Passport Conditions 1. I note that the Applicant's passport has been surrendered and is not to apply for a passport. 2. The Applicant is not to approach within 2 kilometres of any point of departure of the Commonwealth of Australia or New South Wales. Sureties 1. One acceptable person, being [redacted], is to deposit $50,000 cash and is to agree to forfeit this amount if bail is breached. 2. One acceptable person, being [redacted], is to deposit the $20,000 cash and is to agree to forfeit this amount if bail is breached. Drug and Alcohol Abstention Conditions 1. The applicant is not to drink alcohol or enter any premises in which alcohol is sold, other than a licensed restaurant. 2. The applicant is not to take any illegal or prescription drugs other than a drug prescribed to for the applicant by a medical practitioner. Witness Protection Conditions 1. The Applicant is not to approach or make contact in any way, personally electronically, by mail or in any way with the witnesses BH or AS or any other prosecution witness who the prosecution may advise. 2. The Applicant if he sees the persons AS or BH in the street is to go the other way and is not to make any contact with them, other than through a legal representative. Conditions Restricting Access to Technology 1. The applicant is to not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the Officer in Charge within 24 hours of taking or resuming possession of any such device. 2. The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Discord, Zoom, WeChat or Telegram. 3. The applicant is not to use social media including Facebook, Instagram or similar sites. Enforcement Conditions 1. Enforcement Condition: The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy. 2. Enforcement Condition: The applicant is to undertake any testing at the direction of any police officer to confirm compliance with the drug/alcohol abstention condition. Such direction may only be given by a police officer who believes on reasonable grounds that the applicant may have consumed drugs/alcohol in breach of the bail acknowledgment. Such testing may only be non-invasive and carried out with respect given to the applicant's privacy. 3. The applicant shall present his phone for inspection at the Eastwood Police Station every 7 days so that the Police, if they wish to, may inspect the contents of the phone.

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (6)

Cited By (1)