R v VELEVSKI [2000] NSWCCA 445 | Case summary

(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. 9 One of the things that the Bail Act did when it was enacted in 1978 was to remove from New South Wales the operation of the common law as it applied to applications for and grants of bail. Some little way into the operation of the new Act the question of bail pending appeal came to be considered in the Court of Criminal Appeal in R v Hilton (1986) 7 NSWLR 745. At that stage the only criteria to be taken into account were those set forth in s 32 of the Act. Those criteria are well known. I do not believe that at that time they were significantly different, for present purposes, than they now are. I need not refer to them in detail. But the intention of the Legislature was drawn to the absence in the Act of what I would describe in general terms as some special test where an application was made by an applicant after conviction by a jury and pending an appeal. 10 Reference was made in the judgment of Street CJ (p 751) to some remarks of King CJ of the Supreme Court of South Australia in R v Giordano (1982) 31 SASR 241, a matter to which I will return shortly. Hunt J (as he then was) concurred with the remarks of the Chief Justice and is recorded (p 752) as saying: It has long been the common law (which is now excluded in this State by the Bail Act , s 67) that bail will not be granted to a person convicted of an offence pending the hearing of an appeal against his conviction unless special or exceptional circumstances are shown by him to exist. This is a recognition by the common law of the fact that the applicant for bail has already been tried and convicted and no longer has any presumption of innocence in his favour. The common law accepts that such conviction results from a trial which must be taken, until the contrary be shown, to have been properly conducted and without error of law; R v Southgate (1960) 78WN (NSW) 44 at 44. To grant bail pending an appeal from that conviction is to whittle away the finality of the jury's verdict and to invest it with a provisional quality, thus attacking the central feature in the administration of criminal justice: Chamberlain v The Queen (No 1) (183) 153 CLR 514 at 519-520. The common law sees strong social reasons why an appellant's hopes should not be raised by the grant of bail for, if unsuccessful in his appeal, he will suffer all the more when those hopes are dashed and he is returned to custody to serve the sentence previously imposed upon him: R v Gruffydd (1972) 56 Cr App R 585 at 589. There are also practical reasons for the common law's view that bail should be less readily available after conviction. These were referred to by King CJ in R v Giordano (1982) 31 SASR 241 at 242; 6 A Crim R 397 at 398-399, and have been quoted by the Chief Justice in his judgment in the present application. The most important of these reasons is the proliferation of unmeritorious appeals which unnecessarily add to the existing strains to the criminal justice system. Another important practical reason is the very real possibility that an appellant while on bail will create a situation which will make it difficult to return him to prison to serve his sentence after dismissing his appeal. It is unnecessary to repeat the other practical considerations which have already been quoted by the Chief Justice. 11 I return then to the judgment of the Chief Justice, Sir Laurence Street (p 751): The matters so convincingly crystallised in the more recent passage I have cited of King CJ in R v Giordano are of no less significance in the administration of the criminal law in this State than in South Australia. 12 The Chief Justice was referring to what he had said at 746, viz: The considerations underlying the common law rule were recently restated by King CJ in R v Giordano (1982) 31 SASR 241 at 242; 6 A Crim R 397 at 398-399: "... Before and during trial, the primary, although not the only, consideration is whether the applicant will appear when required to do so. This consideration has only a minor bearing on the grant of bail after conviction. Obviously bail after conviction would not be granted unless the circumstances were such as would have indicated bail before and during trial. After conviction, however, other cogent factors also come into consideration ... There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison". 13 The Legislature heeded the remarks of the Chief Justice and Hunt J and s 30 of the Bail Act was amended by the addition of subs (2). A further amendment during the same year produced the present s 30AA. 14 Dealing with the Bill in the second reading speech in the Legislative Assembly, the responsible Minister, the Attorney General, Mr Sheahan, said: Prior to the introduction of the Bail Act, persons appealing from decisions of the Supreme Court or the District Court had to show that there were exceptional circumstances before bail would be granted. However, as the Bail Act is a complete code covering the law of bail, this common law rule no longer applies. No exceptional circumstances need be shown. The Court of Criminal Appeal recently recognized this fact in the matter of Hilton. As the Chief Justice said in that case, "section 32 is a mandatory, exhaustive and exclusive statement of the criteria to be considered in bail applications. It applies to all bail applications irrespective of the circumstances in which they come forward". Of course, the fact of conviction and sentence could be taken into account in determining the probability of appearance under section 32, but the fact of a conviction is not otherwise a reason to refuse bail. The Court of Criminal Appeal called for a review of this situation, a task the Government has been happy to undertake. The results of that review are to be found in the bill I present to the House today. 15 As appears from the second reading speech of the Attorney General, the intention in the enactment of the new provision was to restore the common law provision. 16 The provisions of the new section came to be considered in the Court of Criminal Appeal in R v Wilson (1994) 34 NSWLR 1. In a portion of the judgment of Kirby P, under the heading "Need for a powerful case of error in the trial to support bail", appears this passage. Having dealt with the argument that the applicant had put forward his Honour said (p 6): The argument is available to the applicant. However, it is enough for me to say that I think it falls short of the special or exceptional circumstances that are required. In R v Waters (1990) 9 Petty SR 4016, Badgery-Parker J expressed the opinion that in an application for bail, where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed. The applicant must be most likely to succeed. This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances. 17 Sheller JA agreed with the President. Hunt CJ at CL said (p 7): I also agree. In particular, I agree with the statement by Badgery-Parker J in R v Waters (at 4018), that something more than an arguable ground of appeal must be shown in order to establish the special or exceptional circumstances required by s 30AA of the Bail Act 1978. In R v Southgate (1960) 78 WN (NSW) 44, this Court, when considering an application for bail, said (at 44) that, where the guilt of the appellant has been established by the jury's verdict in what must be taken - until the contrary be shown - to have been a trial properly conducted and without error of law, it is most unusual that he should be admitted to bail pending the determination of his appeal. In Chamberlain v The Queen (No 1) (1983) 153 CLR 514, Brennan J said (at 519-520) that to grant bail pending an appeal from a conviction is to whittle away the finality of the jury's verdict and to invest it with a provisional quality, thus attacking the central feature in the administration of criminal justice. It was for these reasons that the common law required an appellant to demonstrate special or exceptional circumstances in order to obtain bail pending his appeal; the authorities are discussed in R v Hilton (1987) 7 NSWLR 745 at 746-747, 752. It is that requirement which is now enshrined in s 30AA. 18 His Honour continued: In R v Smith (Court of Criminal Appeal, 18 May 1993, unreported), I said (at 2) that, bearing in mind what was said in R v Southgate , it has to have an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application. Where the prospects of success on the appeal are put forward as a special circumstance, I said (at 2-3), what must be established is a ground of appeal which is certain to succeed - and one which can be seen without detailed argument to be certain to succeed. It is not sufficient to show a merely arguable ground of appeal, or even one which has a reasonable prospect of success. Agreement was expressed with my views in R v Olivier (Court of Criminal Appeal, 15 September 1993, unreported) at 60, by Finlay J (with whom Handley JA and Sheller JA agreed). 19 Since then a number of applications have been dealt with in the High Court of Australia, and which have been drawn to the attention of this Court. One of the things that has been suggested during the hearing of the application is that the test that this Court applies under s 30AA is different from the common law test which the High Court applies in considering applications to that Court for the grant of bail. 20 I do not think that that submission is made out. What was suggested was that in applications to the High Court it was, if anything, easier to obtain bail. The test was easier to pass, less stringent. There is a practical reason why this is so, of course, and that is because the High Court does not hear bail applications unless it has granted special leave to appeal. That means that the High Court has made some consideration at least of the prospects of success of the appeal in due course. It is not easy to obtain special leave to appeal to the High Court and, although there are no statistics before this Court, one may confidently say that an applicant who has a grant of leave must be taken to have a greater chance of success than an applicant who yet lacks leave. 21 I think that that is the only practical difference between applications for bail in the High Court and applications to this Court. The test is the same. It is the common law test which concerns itself with special or exceptional circumstances. 22 There are a number of cases in which it has been made clear that the grant of special leave to appeal alone is insufficient to justify the grant of bail. See the judgment of Gaudron J in R v Robinson (1991) 65 ALJR 519 at 519; the remarks of Callinan J in Marotta v The Queen (1999) 73 ALJR 265 at 267; and of Hayne J in Parsons v Regina (1998) 72 ALJR 1325). 23 It is convenient to return to the judgment of Callinan J in Marotta v The Queen, not because one is here attempting to consider whether this case is like that case, but because it contains a useful collection of factors or components which in any particular case may well be brought to bear in answering the ultimate question whether, in the instant case, there exist the necessary special or exceptional circumstances warranting a grant of bail. It is also convenient to adopt this course because that is the course adopted by counsel for the applicant. The submission was that many of the features present in Marotta v The Queen were present in this case. 24 Before I go to the features that are relied on, however, it is necessary to make some comments about the process of reasoning by which the Court is required to say whether the necessary special or exceptional circumstances do or do not exist. A number of component factors may exist. One of them will be the prospects of success of appeal. It can be taken that an asserted ground of appeal which is frivolous or obviously has no chance of success would be given no weight in considering whether special or exceptional circumstances exist. That is, I think, why it is necessary at least to demonstrate that there is an arguable ground of appeal. But one need say no more than that, I think, about the view that the Court entertaining a bail application need take about the apparent strength of the appeal. 25 There are many other components. It is convenient now to take the components set forth by Callinan J in Marotta v The Queen. There are thirteen factors set forth in his Honour's judgment (p 267). The first was that special leave had been granted. The second, which is related, is that his Honour was of the view that an arguable point had been raised which might have real substance and might justify a retrial. The third was that pending trial the applicants were granted bail. Those three factors all exist in the present case and are relied upon by the applicant. 26 His Honour continues with a fourth component, and that is that substantial parts of the custodial sentence were likely to have been served and in one case possibly even completed by the time the High Court published its reasons. Allied to that was the fifth point, that all of the applicants were in much the same position. The sixth point, which was allied to it, was that if the applicants were ultimately acquitted then the factors that his Honour referred to would produce the effect that their victories would be hollow. None of those factors applies to this case. The applicant is serving a minimum term of nineteen years and is only a little way into the service of that term. 27 The seventh point, which applies here, is that in the normal course the cases would not be heard for some months. The Court might be expected to reserve its decision after argument. 28 The eighth point was one that I do not think applies here, namely, that some concession was made in the Court of Criminal Appeal that some of the evidence had been wrongly excluded. 29 The ninth point was that so long as it was clear that the full term in actual time would be served in prison if the appeal is refused, the public interest in the effect of the convictions would not be adversely affected, whereas there was in his Honour's opinion no public interest in the incarceration of people who might turn out to have been wrongly convicted according to law. 30 The tenth point was that the applicants, if they made out their case, would not have to contend with the proviso. It seems reasonable to say that the applicant may have that point in this application. 31 The eleventh point was that there was a carefully reasoned dissenting judgment in the Court of Criminal Appeal. That is the case here. See the careful and detailed judgment of Kirby J. 32 The twelfth point was there is no suggestion that the applicants in Marotta were likely to abscond or offend whilst on bail. I think the position is the same here. The contrary has not been suggested by the Crown. 33 The final point, which also applies here, is that almost all penal legislation and executive policies relating to parole, work release, home detention, rehabilitation and the like recognise a real distinction between custody and prison and the head sentence actually imposed. Accordingly, it was not appropriate to have regard to a non-custodial aspect of a sentence in considering an application for bail. 34 It seems to me that the principal features of this case are as follows: the applicant has been convicted of multiple murders. The criminality which has been established in the minds of a jury and about which two judges of this Court have seen fit to have no reasonable doubt, is very great indeed. This would be one of the most serious murders committed in this State, and that is how things stand. In consequence of that the applicant is serving an unusually long minimum term. 35 Secondly, I accept that the applicant has a grant of special leave to appeal and that that means that his appeal must be regarded as having some prospects of success. 36 Thirdly, his appeal will be argued within a few months' time and, although the High Court of Australia may need to reserve its decision, and that may produce further delay, the applicant will have the result of his appeal within a year. That is, standing alone, a long time, but when compared with the minimum term the applicant is serving, which I think is what this Court must do, it is not a long time. 37 It seems to me that the Court ought to respect the verdict of the jury and the fact that this Court dismissed the appeal by a majority. It seems to me that in all the circumstances, and accepting the strength of all the matters put in favour of the application, that there do not here exist the special or exceptional circumstances justifying a grant of bail pending the applicant's leave to the High Court of Australia. I would refuse the application. 38 SPIGELMAN CJ: I agree. 39 HULME J: I also agree and I agree with the reasons which Barr J has given. I would add only two comments. Firstly, I would respectfully dissent from the views expressed by Callinan J in Marotta v The Queen in paragraph 9 (p 267). It seems to me what his Honour said there is contrary to the general tenor of much of what has been said in the authorities as to the reasons why care should be exercised in considering, and courts are reluctant to grant, applications for bail pending appeal. 40 The second matter to which I direct attention concerns the length of time over which the appellant has been incarcerated in connection with this offence. It is now something over three years since he was convicted. He was fortunate that he was on bail prior to his trial, but it is by no means uncommon for persons charged with criminal offences, particularly murder, to be in prison for something of the order of two years pending trial. If that had occurred in the case of the appellant, he would have had five years taken out of his life in circumstances where, at this stage it must be said there is a possibility it would have been wrongly done. 41 Regrettably, there are delays within the Court system. It is impossible to say that these delays necessarily constitute special or exceptional circumstances. But it seems to me that there must come a stage when one says that the delays in a particular case may constitute, or at least go a long way towards showing the existence of special or exceptional circumstances. 42 In this case there is a factor operating adversely to the applicant, in that a significant portion of the delay which has occurred since his conviction has been due to fault on his side of the record. It would seem to have taken a substantial time for his appeal to this Court, and then for his application for leave to appeal to the High Court, to have been filed. 43 In the circumstances as they are revealed I would not regard the period of incarceration to date and that likely prior to the decision of the High Court as establishing special or exceptional circumstances. However, I think the case is approaching the border line where considerable weight should be given to that factor. 44 SPIGELMAN CJ: The order of the Court is that the application is refused. **********

R v VELEVSKI

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