Mr Flaherty was found guilty last year by a jury of two serious offences committed some decades ago against a teenage boy. He was then a Catholic Priest and the boy was a parishioner and an altar boy.
He had pleaded guilty to other offences against two other boys.
I sentenced Mr Flaherty yesterday. I fixed a sentence of two years and three weeks and I fixed a non-parole period of six months. I directed that the sentence commence not yesterday but today. The reason for that direction is that Ms Rowan who appears for him indicated that she would be making a release application under the Bail Act 2013. She has pursued that release application this afternoon. I have a very full list today. I have just heard Ms Rowan and Ms Daleo as Crown Prosecutor on the merits of the release application.
It is suggested that the leading current authority is El-Hilly and Melville v R [2015] NSWCCA 146. I think that is right. Hamill J delivered a judgment in which Simpson J, as her Honour then was, and Davies J agreed. With respect, his Honour carefully and helpfully analysed the relevant legislation. This case, like El-Hilly and Melville, involved s 22 of the Bail Act 2013. This case falls within that section because there is an appeal pending in the Court of Criminal Appeal against the conviction which I imposed after the jury verdict and the sentence which I delivered yesterday. The section provides that I am not to grant bail "unless it is established that special or exceptional circumstances exist that justify that bail decision".
Ms Rowan argued that there are such special or exceptional circumstances and Ms Daleo argued that there are not. The section also provides that what I will refer to in a shorthand way as the unacceptable risk test also applies. I did not require Ms Rowan to address me on that because it seems to me that Mr Flaherty who is aged 72 and in very poor health does not pose any unacceptable risk. Ms Daleo did not want to submit otherwise and both agreed that the issue turned on the special or exceptional circumstances which are said to exist to justify the bail decision.
Hamill J canvassed the question which has been discussed in the past by the authorities about bail pending an appeal. An obvious issue is the prospects of the success of the appeal. This in turn leads to a further question, how good must those prospects be. Hamill J resolved that issue to my mind, speaking for the Court of Criminal Appeal, when his Honour said at [26] that 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."
That is a far lower threshold than ones previously suggested such as success being "virtually inevitable" or that the appeal is "most likely to succeed". Hamill J went on to say at [29] that two features frequently arise on these applications. They are:
"The merit of the appeal and … the possibility that the applicant will have served their sentence or non-parole period, or a substantial part of it, before the appeal is determined."
Ms Rowan indicated that inquiries suggest that if notice of appeal is lodged at this stage (there is only a notice of intention to appeal so far), then the appeal would get a call-over during which a hearing date would be fixed and that date might be some three months or so later. The non-parole period which I fixed yesterday expires on 25 August 2016. That would mean that the earliest likely date for the appeal to be heard and determined would be late May or early June. However getting the appeal on that soon would not be guaranteed. There is a question of transcript to be obtained and there could be a delay of a further six to eight weeks. Ms Rowan said there is a real possibility the hearing date could be not until July, August or September. The last month would be beyond the non-parole period.
A second factor is her client's health. As I said in my remarks on sentence yesterday, Mr Flaherty has very poor health. Indeed his treating specialist physician has given him a prognosis of six to twelve months. Significantly that prognosis was offered in September last year.
As to the merits of the appeal, Ms Rowan agitated the possibility of what used to be called an "unsafe and unsatisfactory ground". She referred to various issues which occurred during the trial including directions, tendency and coincidence evidence and a ruling about a judge alone trial. She offered nothing by way of argument as to where any error might be there.
However she said there was a second point about the trial. I remember it and it has been pointed out by her in her sentence submissions. There were issues during the trial about her client's health. He was not able to turn up on one or two days. I recall that at one stage evidence had to be obtained from one of his treating doctors about his ability to come and continue the trial. Later tests reveal that he is likely to be suffering from some form of dementia. Ms Rowan raises the question of whether in the circumstances there might have been a fitness for trial issue that arose. Of course if such an issue arose the judge would be required to embark on a fitness hearing. I do not think that there would be any question here of the bona fides of such an application, given Mr Flaherty's health record.
There is some merit to my mind in that issue. I cannot determine how meritorious it is because I simply have not had time to review the evidence.
Ms Rowan argued that there would be a sentence appeal. One ground would be that the sentence is manifestly excessive because of the starting point of four years. I do not myself regard that as a ground having reasonable prospects of success. The two offences where I fixed 4 years as a starting point but then reduced it to two years were particularly serious examples of the crime that I am sentencing Mr Flaherty for. Indeed, as Ms Daleo pointed out, my jump from four years to two years could be regarded as very lenient.
There are other issues about whether I had canvassed the authorities regarding remissions. Again I do not think that is an arguable point.
Ms Rowan moved on to firmer ground regarding the health of her client. She reminded me of the grave concern that doctors and psychologists have expressed about his health and the impact of a gaol sentence. One of the opinions comes from his treating specialist. There is also the question of his prognosis. On one view of things, although a prognosis of course is not a prediction, it could occur that Mr Flaherty does not survive until the end of his non-parole period.
Ms Rowan argued that minds could differ about whether or not this is a case where her client should have gone to gaol. Her argument yesterday was that the sentence should be a prison sentence but that it should be suspended because of his circumstances. I disagreed with her and rejected that argument.
Ms Daleo says that that is sufficient and puts an end to it - the fact that minds may differ does not point to error. The fact that a Court of Criminal Appeal judge may err on the side of not sending Mr Flaherty to gaol is not demonstrable of error. However this is where, I say with respect, the relatively low threshold proposed in El-Hilly and Melville becomes relevant - the proposed grounds of appeal "are arguable or enjoy reasonable prospects of success."
I myself considered seriously whether or not I should sentence Mr Flaherty to fulltime imprisonment. I felt comfortable in reaching the conclusion that he had to go to gaol and that he had to serve a period of time in gaol fulltime. However it is open to argument that that was in error. There is a good deal of medical material concerning his fitness and health and there is the prognosis and there is the psychological report about the impact of gaol.
In addition there is the very real prospect that Mr Flaherty may not survive the non-parole period. One additional point made by Ms Rowan was to point to the evidence of her client's dementia and the question of him being in a position to provide instructions for an appeal. I do not place great weight on that submission because an appeal requires less input than does a trial. But nevertheless there is some force in the argument.
Ms Daleo on the other hand reminded me of what the High Court had said in United Mexican States v Cabal (2002) 209 CLR 165. That emphasised the serious interference with the due administration of justice involved in ordering a sentence of imprisonment - as I did yesterday - but then to stay the order. I set out the considerations in my judgment in R v Jiao (No 3) [2014] NSWDC 354 at [8]. I think there is a good deal of force in that submission.
On the one hand I could refuse the release application and encourage Ms Rowan and her client to consider whether it could be pursued in the Court of Criminal Appeal. On the other hand I am obliged to give this application serious consideration and determine it on its merits.
I have determined to permit the release application. I do so because to my mind the merits of the appeal, as pointed out by Ms Rowan, are at the very least arguable. I am not sure that any of them may enjoy reasonable prospects of success. But there is the point about the capacity of her client during the trial. I make no comment about the merits of that point, but I do confirm that I remember the issue arising. Then there is her point about whether I was in error to send her client to fulltime imprisonment given his health and age and prognosis. That might be regarded as erroneous. Both carry enough merit to be described as arguable.
For those reasons I propose to grant the application.
DALEO: Your Honour on the issue of bail then pending the appeal.
HIS HONOUR: What's the order that I make?
DALEO: Your Honour I understand there are a series of existing conditions which the Crown would ask to stay.
HIS HONOUR: What is the order that I make it will be conditional I expect but what's the order?
DALEO: That the offender be granted bail your Honour.
HIS HONOUR: Where? What section?
ROWAN: Well pursuant to s 62.
HIS HONOUR: Here it is no s 8 - what is s 62. Yes I remember we talked about that yesterday. No that's hearing - isn't it s 8?
DALEO: I'll call up the Bail Act.
HIS HONOUR: The following decisions can be made under this Act in respect of a person accused of an offence, a decision to release the person without bail, decision to suspend submission to grant bail for the offence.
ROWAN: Thank you your Honour. Well it's either your Honour s 9 or s 10, sorry s 9. S9 is the decision to release without bail, actually that's not going--
HIS HONOUR: No.
ROWAN: S 11 decision to grant bail or refuse bail, so your Honour would be granting bail pursuant to s 11.
HIS HONOUR: All right do you agree Ms Daleo?
DALEO: Is your Honour asking if I agree it's s 11?
HIS HONOUR: Yes that's what I'm asking whether that's the power that I have to order, make the order that Ms Rowan has--
DALEO: Yes your Honour, your Honour can grant bail.
HIS HONOUR: I'll come back to conditions, all right this is the first order.
Under s 11 of the Bail Act 2013 I grant bail to the offender.
HIS HONOUR: All right now conditions.
DALEO: Your Honour there were a series of pre-existing terms.
HIS HONOUR: Yes have you got it in writing?
DALEO: I have one copy that's been marked that I'm--
HIS HONOUR: Has that been shown to Ms Rowan? Can somebody show it to Ms Rowan? If we can reach agreement that's the best way of doing it.
ROWAN: Yes your Honour I'll have a look but the question--
HIS HONOUR: No, no have a look. First have a look at the document.
DALEO: Your Honour I understand my friend has no issue with what were the bail conditions to continue.
HIS HONOUR: Has somebody got it in writing so I can read it out?
DALEO: Yes your Honour.
HIS HONOUR: Right hand it up please.
DALEO: Your Honour can I just indicate we updated it when the reporting conditions were varied.
HIS HONOUR: That's fine hand it to the court officer.
ROWAN: Well your Honour as I understand it there's no reporting conditions.
HIS HONOUR: I don't know. That will become an mfi which my associate will tell me in a moment.
DALEO: They were deleted during the course of the trial your Honour, prior to that I understood it was one day a week.
HIS HONOUR: Really? Does he need to report, really?
DALEO: Your Honour the Crown doesn't have an issue if your Honour doesn't want to impose a reporting condition. The other conditions your Honour will see are self-evident as to no approaching individuals and not being with children.
HIS HONOUR: This looks like an AVO.
ROWAN: The start of it is an AVO your Honour and there's no difficulty with that but it reflects your Honour the same terms as an AVO and there's obviously no--
HIS HONOUR: So you're saying the terms of bail are in this document?
DALEO: Yes your Honour.
HIS HONOUR: Okay but I'll delete the reporting conditions. I will, so where are the reporting conditions?
DALEO: Your Honour on the bottom it indicated that reporting conditions were deleted.
HIS HONOUR: Right yes.
DALEO: And they don't need to be reinstated. However your Honour the Crown would ask for an additional bail condition.
HIS HONOUR: What's that?
DALEO: That the accused diligently prosecute the appeal, the offender diligently prosecute the appeal.
HIS HONOUR: Yes go on.
ROWAN: Your Honour I just wanted to make note that with regard to his not to be the company of any child under the age of 18 years.
HIS HONOUR: Are you asking for a variation?
ROWAN: No that was already varied and I want to make sure that that is reflected, it was varied to exclude the children of--
DALEO: His grandchildren your Honour on the list.
ROWAN: They're de facto grandchildren and I certainly have no difficulty your Honour with the condition that the appeal be diligently prosecuted.
HIS HONOUR: Were these all conditions? If I was to say that he's given bail on conditions that were previously that are currently in place with the exception that there is the reporting conditions are deleted and he is to prosecute the appeal, would that order suffice?
ROWAN: I think it would yes your Honour.
DALEO: Yes your Honour just one other matter though which isn't a question of bail but in situations like this your Honour the Crown is, I ask the court if your Honour would refer the matter to the Registrar of the Court of Criminal Appeal. The next call over is 3 March 2016. I understand your Honour has the ability to specifically refer this matter to the Registrar.
HIS HONOUR: Bail is granted on the same conditions as were fixed at the conclusion of the trial. I confirm that there are no reporting conditions. An additional condition is that the appeal anticipated in the notice of intention to appeal is to be prosecuted with due diligence. I make an order that the matter be referred to the Registrar at the Court of Criminal Appeal at the next call-over on 3 March 2016.
DALEO: And so therefore the offender's bail will continue to that date.
HIS HONOUR: Yes that bail continues to the date.
ROWAN: Would your Honour excuse the offender if legally represented?
HIS HONOUR: I excuse the appellant, I excuse Mr Flaherty in person from attending the call-over provided he is legally represented.
ROWAN: Yes.
HIS HONOUR: All right so we've got that bail, same conditions as at the conclusion of the trial.
I confirm that the reporting conditions are deleted. I add that he is to prosecute the appeal with due diligence and I add that the bail is continued until 3 March 2016 and I direct that the matter be referred to the Registrar of the Court of Criminal Appeal to the call-over on that date and I excuse Mr Flaherty from having to appear at the call-over provided he is legally represented.
HIS HONOUR: This MFI will be 16.
MFI #16 DOCUMENT
ROWAN: Your Honour I think your Honour indicated that you'd taken out a request for transcripts.
HIS HONOUR: Yes I think if I didn't I think we have made a request for yesterday's transcript.
DALEO: Your Honour one matter--
HIS HONOUR: If we haven't I direct that a transcript of yesterday's sentence be ordered and made available to me for revision. I direct also that a transcript of my bail decision today be made out and made available to me for revision.
Anything else?
DALEO: Your Honour there was a s 9 bond apparently that your Honour imposed yesterday, I'm not aware of whether it was entered or not.
HIS HONOUR: Nor am I, I assume it was. I assume that Mr Flaherty was taken to Registry to have--
ROWAN: I think the Registry might have - I don't know - the short is no.
HIS HONOUR: He needs to enter it.
ROWAN: Yes we'll do that.
HIS HONOUR: He needs to enter the bond and he probably needs to sign a bail undertaking.
ROWAN: I think that's right.
HIS HONOUR: All right anything else?
DALEO: No your Honour I just wasn't' sure if your Honour kept the s 9 bond to start from yesterday or if your Honour adjourned it to start from today.
HIS HONOUR: I don't know either. My guess is yesterday was the s 9 bond.
DALEO: Thank you your Honour.
HIS HONOUR: If there's any doubt I'll order that it was from yesterday.
DALEO: When he gets to the Registry I'm sure they'll let him know.
HIS HONOUR: Right is there anything else Ms Rowan, Ms Daleo?
DALEO: Your Honour I understand there's the material in relation to the child protection offender's registration that needs to be placed with the court file.
HIS HONOUR: I don't know what you mean, what material where is it?
DALEO: I have a sealed envelope your Honour, I'm instructed that it's for the attention of the court, rather than your Honour and is to be placed on the file.
HIS HONOUR: Who is the court if it is not me?
DALEO: Yes your Honour.
HIS HONOUR: Let me have a look at it please. Do you mind me looking at it Ms Rowan I mean none of us knows what it is.
ROWAN: No, I'd be fascinated if somebody knew what it was.
DALEO: I think it's paper work your Honour--
HIS HONOUR: It's from a police officer.
DALEO: Your Honour it's paper work to place the offender on the offender's register your Honour. I can indicate your Honour I haven't seen the document it was provided in a sealed envelope.
HIS HONOUR: I guess that's so that it wouldn't be looked at, wouldn't be a distraction from sentence or conviction. I'm going to mark it for identification 17, along with the envelope that it came in and make it available to counsel to work out what needs to be done. So you both need to look at it this afternoon. If you need a photocopy let my associate know.
MFI #17 DOCUMENT IN SEALED ENVELOPE
DALEO: Perhaps since it was a document that was provided to the Crown I might have it back.
HIS HONOUR: I'm not going to try to guess. I don't have time to guess what it means so my associate will make it available to each of you to read now and if either of you needs a photocopy of it, just ask the court officer he will go and do it outside.
DALEO: Thank you your Honour.
HIS HONOUR: And if you think that I need to make some further determination it will have to stay around until the next--
DALEO: I don't believe we do your Honour, I think it's just an administrative matter.
HIS HONOUR: Nothing else.
[2]
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Decision last updated: 07 July 2016