Simpson v R

Simpson v R - [2021] NSWCCA 264 - NSWCCA 2021 case summary — Zoe

As observed above, there are a total of 52 charges contrary to the Crimes Act 1900 (NSW) on the State indictment. Those charges are as follows: 1. Counts 1 - 37 are offences of dishonestly obtaining a financial advantage by deception contrary to s 178BA(1), each alleged in between various dates spanning 2003 until 2010. The maximum penalty for this offence is 5 years imprisonment. 2. Counts 38 - 40 & 46 are offences of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b), each alleged in between various dates spanning 2014 until 2019. The maximum penalty for this offence is 10 years imprisonment. (The change in the section against which these offences are charged is a result of the amendment of the Crimes Act between the alleged commission of counts 1 to 37 and these matters.) 3. Counts 41 - 45 are offences of possession of identification information with intent to commit fraud contrary to s 192K, each on 12 May 2016. The maximum penalty for this offence is 7 years imprisonment. 4. Count 47 is an offence of possession of equipment capable of being used to make a document or other thing intending that it be used to commit fraud, in December 2019 contrary to s 192L. The maximum penalty for this offence is 3 years imprisonment. 5. Counts 48 - 52 are offences of dealing in identification with intent to commit fraud in December 2019, contrary to s 192J. The maximum penalty for this offence is 10 years imprisonment.
In relation to the above State offences, their factual and procedural history is as follows. In May 2011, a storage unit leased by the applicant was searched by police, whereupon approximately 500 identification documents including credit cards were found, together with a card making device. On 27 March 2013, the applicant was sentenced for an offence of possessing identity information with intent to commit an indictable offence, and possessing equipment for making identification information with intent to commit an indictable offence. He received a sentence of 12 months imprisonment which was suspended pursuant to the then s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It appears (although it is not expressly stated) that further investigations have resulted in counts 1 to 37, (charges of obtaining a benefit by deception) in relation to the use of those materials. The total said to have been obtained across those 37 charges is an amount of $653,352.87 (comprised of losses of $31,221.07 and $622,125.80 to Citi Bank and American Express respectively).
Counts 38 to 40 relate to frauds alleged to have been committed in 2014 by obtaining credit cards, a personal loan, and a home loan using the name of the applicant's son. In relation to count 38, the total amount claimed to have been lost was $21,650. The personal loan - count 39 - was said to have resulted in an outstanding debt of $16,465.98 owed by the applicant. The home loan fraud that constitutes count 40 comprised a loan of $232,300 to the accused. The applicant did not maintain the required loan repayments, causing the bank to foreclose on the mortgage and sell the property to recover its losses. On 25 June 2019, the account was closed with an outstanding debt of $38,742.02 owed by the applicant.
Counts 41 to 45 relate to the possession of identification information. Each charge relates to the possession of a particular electronic storage device, which in turn is alleged to contain various identification documents, together with other information relevant to the commission of fraud offences, including a file titled "the ultimate fake ID guide 2011 version 8". These items were located at the applicant's Petersham address as a result of the execution of a search warrant at that address in May 2016 by the Department of the Environment and Energy.
Counts 46 to 52 relate to offences alleged to have been committed in 2019. Amongst these charges is one charge of fraud relating to a credit card in a false name with an outstanding balance of $22,552.91 (count 46), together with the charge of possessing equipment capable of being used to make identification information and five offences of dealing in identification documents. Those five offences appear to relate to use of the credit card the subject of Count 46.

[3]

The federal matters

The applicant is charged on indictment with fourteen offences against the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The agreed facts also include sequences 71 and 72 which are offences against State legislation, namely s 2.5(1)(c) of the Biodiversity Conservation Act 2016 (NSW). As these offences are punishable by fine only, the applicant has a right to bail with respect to them: s 21 of the Act. As such, I will not consider them further in these reasons.
The offences on the indictment relate to the applicant's involvement in attempted exports of regulated native specimens to various international recipients, and the importing of non-native reptiles into Australia from Hong Kong by post in September 2019.
The offences in relation to the Environment Protection and Biodiversity Conservation Act relevantly provide: 303CD Imports of CITES specimens (1) A person commits an offence if: (a) the person imports a specimen; and (b) the specimen is a CITES specimen. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. … 303DD Exports of regulated native specimens (1) A person commits an offence if: (a) the person exports a specimen; and (b) the specimen is a regulated native specimen. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. … 303EK Imports of regulated live specimens (1) A person commits an offence if: (a) the person imports a specimen; and (b) the specimen is a regulated live specimen. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. …
The applicant is linked to the offending conduct by DNA inside the packages, and similarities between the tape used to seal the cardboard boxes and tape located at the applicant's residence during the execution of a search warrant. In relation to two counts, a car similar to one registered to the applicant's wife is recorded on CCTV near the post offices at the time of the posting of the packages. A closer examination of the Commonwealth counts is set out below.
Counts 1 to 8 - Aid/abet attempted export of regulated native specimens
These 8 matters are alleged to have been committed on various dates across multiple locations in Sydney. While the location of post offices, destinations, species, the declaration of the goods, and names of senders and recipients differed, the offences were generally committed in the same manner for each count. Thus I recount only the facts of count 1 below.
On 26 October 2018, an unknown person attended the Panania Post Office and lodged a package to be posted to an address in the Republic of Korea. The recipient was Jae Hoon Sung and the sender was listed as Michelle Sung of Panania. The package was declared by the sender to contain "rugby league boots".
Following an interception by the Australian Border Force, the package was found to contain three specimens of Shingleback lizards. The bag in which the lizards were secured was sealed with bright pink tape. The applicant's DNA was found inside the package. Tape similar to that that used on the package was located on a search of the applicant's premises.
The specimens located in the packages of Counts 1-8 were identified as Australian regulated species and defined as "regulated native specimens" under s 303DA of the Environment Protection and Biodiversity Conservation Act.
Counts 9 to 14 - Import of CITES specimens; import of regulated live specimens
Counts 9 - 14, again, constituted various allegations which are largely similar in execution. The distinguishing features between the counts include the names and locations of senders and recipients; dates; and the locations of post offices. It is sufficient to set out the facts alleged in Count 9.
On 10 September 2019, a package was received in Campsie, New South Wales, Australia. The recipient was Michael James of Campsie, and the sender was listed as Young Ka Fali of Tai Kok Tsui, Hong Kong.
The consignment was intercepted by the Australian Border Force and found to contain three green iguanas and three red-bellied short-necked turtles. The reptiles were tied inside black mesh and located inside children's toys. Following subsequent inquiries by investigators, it was determined that the address for the recipient was not habitable. During an execution of a search warrant at the applicant's resident in Petersham on 12 May 2016, New South Wales Police located fraudulent documentation in the name of the addressee.
The specimens the subject of Counts 9, 11, and 13 were identified as "CITES specimens" under s 303CA of the Environment Protection and Biodiversity Conservation Act. The specimens the subject of Counts 10, 12, and 14 were identified as non-native species and are defined as "regulated live specimens" under s 303EA of the same Act.
At no stage did the applicant possess the requisite permits or exemptions that would have excluded him from liability.

[6]

Previous applications

The applicant was refused bail by Hidden AJ on 12 October 2020. His Honour found that the applicant's facility in the creation of false identity documents, together with his "apparent access to substantial sums of money, exacerbates the risk of flight and satisfies me that risk is unacceptable" (at [12]). For reasons discussed below, the risk of flight is no longer as significant a concern.
Somewhat presciently, his Honour said (at [12]): "There is a danger that the proceedings could be protracted and, of course, the progress of them may call for the question of bail to be reconsidered. Equally that might be so if the accused's custody creates incurable obstacles to the preparation of his defence".
A further application for bail was heard in the Supreme Court by N Adams J and bail was refused on 15 June 2021. The basis for the application was the applicant's inability to prepare his case. At the time the application was made, the applicant had not been provided with electronic access to the briefs of evidence. It appears, by standing the matter over on two occasions, her Honour was able to provoke action to the point where a laptop computer containing the briefs of evidence, although without notetaking facilities, was to be provided to the applicant.
Ultimately, her Honour concluded that the applicant was, as a result of that progress, in a position to prepare his case, and that the risk of his committing further offences if released was "too high".
Importantly, at the time of that decision, the applicant had a trial date of 18 October 2021. Her Honour was also informed, it now appears erroneously, that the Commonwealth trial was to follow the State trial (as I read it, immediately or at least shortly thereafter). On 27 September, at a readiness hearing in the District Court, the trial date was vacated due to the pandemic. As noted above, the State trial is now listed on 20 June 2022. If for some reason that trial is unable to proceed, there is no trial date for the Commonwealth matters.

[7]

The applicant's case

In addition to the presumption of innocence and his general right to be at liberty (see the preamble to the Bail Act), the applicant relied on a number of specific matters.
He relied on the delay of two years by the time the trial is to commence. He also relied upon the fact that he will be unrepresented at trial and will have difficulty in preparing his case while in custody. There was evidence confirming the applicant has recently been provided with a laptop computer that contains the briefs of evidence with respect to each matter, as was indicated would occur before N Adams J. However, according to the applicant, that laptop was provided less than three weeks prior to the then scheduled trial date of 18 October 2021. Since then, the applicant has raised with the prosecution issues with respect to some missing material.
I accept that the prosecution has attempted to diligently address these issues. As is not uncommon, however, there appear to have been delays in the applicant receiving this material given that communication and provision of brief materials must be done through Corrective Services. At the hearing, the applicant indicated that as the gaol had been in lockdown, he had not been able to access the laptop since last week and could not confirm whether he had received missing items. Independently of that, there remains an issue as to whether the laptop has the capacity for additional materials that, it appears, need to be added. Even if the laptop is available and up to date (and there is no reason it should not be well prior to trial), the prosecutors accept it cannot be used for taking notes. The applicant points out the difficulty of preparing a defence relying on handwritten notes and a lack of adequate furniture, such that he is forced to prepare notes sitting on a mattress in his cell. There are distractions as a result of a television, cooking, and other activities engaged in by his cell mate. His preparation is also limited by when he is allowed to have the light on. I also note that even if the applicant is able to stay in the one location until the trial, he will need to be moved to Sydney for the trial. Experience has shown that this may result in difficulties with access to trial materials.
The applicant also referred to a need to be at liberty in order to issue subpoenas and arrange for witnesses. In circumstances where he has people in the community who are willing to put up very substantial security on his behalf, I do not accept that he cannot enlist their support to assist him with such matters. I do, however, accept that there may be some basis for his complaints with respect to his inability to access resources for the purpose of legal research.
The applicant also relied on a need to be free to assist with the care of his elderly parents. In response to this aspect of the applicant's case, attached to an affidavit tendered by the Commonwealth prosecutor is an email of 22 October 2021 from Senior Constable Matthew Johnson to a solicitor in the Commonwealth Director's office. That email states, "I originally spoke with Simpson's brother Mark Simpson who said he would sort things around Simpson's parents to assist with their care and the animals".
In an email sent to the Court relied on by the applicant, the applicant's mother states that she and her husband are willing to have the applicant live with them and will supervise him to ensure he obeys any bail conditions. She refers to the applicant as their carer, helping with daily matters including dealing with doctors. She states, "we became quite dependent upon [the applicant] and we are suffering terribly as a result of [his] remand combined with the covid pandemic". She says that their other son normally lives more than two hours away and has been travelling for the last four months. She says he is not due to return to Newcastle, his usual place of residence, until close to Christmas, after which he also has travel plans. She states that given the distance, he is not readily accessible for emergencies or everyday assistance. The applicant's mother also notes that she understands that, if convicted, the applicant will inevitably receive a custodial sentence. She says in that connection that she and her husband require the applicant's assistance to arrange their affairs.
I do not doubt that the police officer spoke to the applicant's brother who indicated a willingness to "sort things around" the applicant's parents. However, having regard to the detail in the applicant's mother's email, I accept that the applicant, if at liberty on bail, will be in a position to provide significantly greater care. (I pause here to note that this conclusion highlights the danger in relying on assertions in the police letter referred to above. The letter indicated the brother was "able to provide care" for the applicant's parents. Examination of material closer to the source suggests there may be a vast difference in the care the brother is able to provide and that which the applicant is able to provide.)
Of course, given the case against the applicant, there is every likelihood that he will be unavailable from the conclusion of his trial.
The applicant also has strong ties to the community through his wife and two children (who, we were told, are aged 16 and 13), all of whom reside in a house owned by the applicant's wife in Petersham where the applicant also resided when not with his parents.

[9]

The strength of the prosecution case

It is convenient to begin with an assessment of the case against the applicant (see s 18(1)(b) and (c)). A strong case in relation to serious offences may feed into each of the s 17 bail concerns. It may provide an incentive to flee, a concern in relation to the commission of a serious offence or the endangerment of others, or a motive to interfere with witnesses or evidence.
The case against the applicant with respect to the State indictment appears (at least with respect to the vast majority of charges) very strong. He is linked to the cards used to obtain the benefits by material found on computer drives in his possession, the use of his photograph on identity documents matching the false identity used for some of the offences, and a plethora of materials relating to the production of false identity documents. The offences are serious and there is no doubt that, if convicted, the applicant will receive a significant custodial sentence.
With respect to the federal offences, the evidence linking the applicant to the packages has been set out above. The case against the applicant appears to be reasonably strong.
These offences are serious. If convicted, which appears reasonably likely, a gaol sentence appears inevitable: see R v Kennedy [2019] NSWCCA 242, noting in particular in the applicant's case, he was on conditional liberty with respect to almost identical offences.
This view does not, however mean that a pragmatic view should be taken that the applicant may as well commence serving his sentence now. As Garling J said in JM v R (at [34]-[35]):
[34] … the essential and important principle which is not to be ignored, is that an accused person, who is presumed to be innocent, is not to be punished before a conviction: Clumpoint v DPP [2005] QCA 43 at [47]. Put differently, bail is not denied to a person as a punishment: Chau v DPP [1995] 37 NSWLR 639 at 655 per Kirby P; Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at pp27-28.
[35] The approach of correctional authorities to a person remanded in custody awaiting trial because bail has been refused is different from their approach to a sentenced prisoner. Rehabilitation programs are not ordinarily available to remand prisoners. Custodial classifications are different. Usually, persons on remand are held in maximum security facilities regardless of the offences with which they are charged or their likely classification after conviction.
To similar effect McCallum J (as her Honour then was), observed in R v Farrell [2015] NSWSC 1082 at [16] that the determination:
… must not be approached on the basis that it would be sensible or expedient for the respondent to begin serving an apparently inevitable custodial sentence now rather than at a later point when he is duly sentenced by the District Court. That is not the test. The task for the Court on the present application is to undertake the evaluative judgment … having regard to any relevant considerations under s 18.
I turn then, to consider each of the bail s 17 bail concerns individually.
The risk of flight: s 17(2)(a); s 19(2)(a)
While the prosecutor who appeared in the State matters disavowed flight as a concern, the prosecutor for the Commonwealth did not, at least expressly. Having regard the strength of the respective cases and the significant gaol sentences likely to follow, there is, in my view, some incentive to flee. The applicant has a demonstrated aptitude in the creation of false identities. Against that, I accept the applicant has strong ties to the community through his family. The applicant has indicated that his wife is willing to provide substantial security. On balance, and having regard to the conditions available, I am not of the view there is an unacceptable risk the applicant will fail to appear.

[10]

Risk of the commission of a serious offence/endangering the community: s 17(2)(b), (c); s 19(2)(b)(c)

Section 18(2) provides: (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered - (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.
In Director of Public Prosecutions (NSW) v Dagdanasar [2016] NSWSC 1089, RA Hulme J noted Parliament's choice to provide an inclusive list of matters to be considered, rather than a definition of a "serious offence". His Honour said (at [15]): Parliament could have defined a serious offence as being, for example, a serious indictable offence or in some other way specifying criteria such as a certain maximum penalty threshold. But, it has been left to the Courts to determine, on a case by case basis, what amounts to a serious offence.
In the present case, given the allegations, I am of the view that there is a risk of a "serious offence" on the basis that if the applicant chooses to engage in further frauds, or the import or export of fauna, it is likely that there will be a number of such offences. The offences also have the potential for real harm with respect to consumers in relation to the State matters (to whom financial institutions must inevitably pass on their losses) and biodiversity preservation in relation to the Commonwealth matters.
While I am satisfied that this is a bail concern, the nature of potential further offending must still be taken into account. Clearly, if the risk of committing an offence does not relate to a "serious offence", there is no bail concern under s 17(2)(b), and is there no justification for a refusal of bail pursuant to s 19(2)(b). If there is such a concern, the nature of that concern must still be assessed. The "acceptability" of any risk for the purposes of s19(2)(b) will vary depending on the nature of the potential offence or offences contemplated impacting the balance achieved when weighed against other considerations.
The applicant has no history of violence and there is no real risk of the commission of a violent offence: cf s 18(1)(d); s 18(2)(a). With respect to the fraud matters, however, the volume of the applicant's offending is clearly a concern. As noted above, the applicant's history of dishonesty offences dates from 1988. The present offences span a period from 2003 to 2019. A corollary of that is, however, that some of the allegations are somewhat dated. Counts 1 to 37 are alleged between 2003 and 2010 (when he was arrested and charged with related offences of possessing identification documents and equipment). There are possession offences alleged in 2016 (counts 41 to 45) as a result of items found on what appears to have been an unrelated search. Clearly, there was a capacity to use these items for the purposes of committing fraud offences but no evidence of actual use (or how long the applicant had the items). Subsequent fraud offences are alleged to have occurred in 2014 (counts 38 to 40). The only activity that can therefore be described as recent is that in counts 46 to 52, which span a period from November to December 2019. As noted above, these relate to expenditure on a credit card in the order of $21,000. While by no means trivial, the most recent offending is not the most serious offending. As also noted above, the applicant was arrested on 24 June 2020; it appears there is no allegation of fraud related criminal activity between December 2019 and his arrest.
The situation is different with respect to the Commonwealth matters. Those matters are alleged to have been committed between March 2018 and his arrest in June 2020. There is clearly the potential for the applicant to engage in similar offending while on bail. He appears to have access to fauna and to identities to disguise his involvement in the trade.
When pressed at the hearing of the matter as to what assurance he could give the Court that he would not breach a grant of bail by the commission of offences, the applicant referred to the fact that his time on bail was anticipated to be limited to a period of 8 months. That is not of particular comfort. The applicant could potentially commit significant offences in that time, though it must be acknowledged that the alleged offending is spread over a period. Of greater significance is the applicant's expressed awareness that he will be under close scrutiny by the authorities. In this regard, it will not have escaped the applicant's attention that during November 2019, his vehicle was tracked with a surveillance device linking him to times and places where a card the subject of charges was used. Certainly, he would be aware that any breach of his bail will have him returned to custody with little realistic prospect of being released to bail again. In circumstances where the concern relates to crimes involving deliberate decision making and planning as opposed to offences likely to be committed impulsively, this has, to my mind, some force.
Additionally, if bail is to be granted, I am minded to impose a condition that the applicant reside at his parents' address and not leave the address other than in the company of either or both of his parents. I accept, as was submitted by both prosecutors, that the supervision of the applicant's parents is not a guarantee against potential offending. Indeed, it should be noted that one of the summary offences charged relates to a snake found at the home of the applicant's parents and that two of the packages were sent from the post offices at Revesby and Panania, a relatively short distance from the applicant's parents' home. Nonetheless, the proposed condition will severely constrain the applicant and, in my view, make any attempt to commit an offence far less likely.

[12]

Determination

I have already indicted in my reasons, above, that the applicant, in my view does not present an unacceptable risk for the purposes of s19(2)(a) and (d). That leaves for consideration the risk of committing a serious offence and the (related) risk of endangering the safety of (as presently relevant) individuals or the community: s19(2)(b) and (c).
The applicant is not in a strong position. He has an unencouraging history and faces many charges. He was sentenced, in August 2018, in relation to four offences similar to those in the Commonwealth indictment, to imprisonment for 1 year and 5 months, which was suspended pursuant to the provisions of the Crimes Act 1914. The first of the Commonwealth offences is alleged to have been committed within 2 months of the imposition of that sentence and all of the offences on the Commonwealth indictment during its currency. Counts 46 to 52 on the State indictment are also alleged to have been committed during that period.
Regard is, however, to be had to all the matters in s 18. The above considerations, which weigh heavily against a grant of bail, must be balanced against other factors. As noted above, no grant of bail is risk free.
In the present case, I am particularly concerned by the length of time the applicant will have been in custody by the time his trial starts (s 18(1)(h)). A delay of at least two years between arrest and trial, to my mind, puts a very different complexion on this matter. Some twenty years ago Sperling J said in R v Cain (No 1) (2001) 121 A Crim R 365; [2001] NSWSC 116 at [9]: As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial but a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights.
See also R v Kugor [2015] NSWCCA 14 at [35]; JM v R [2015] NSWSC 978 at [94] in the context of shorter delays.
It is also important to observe that the applicant's custody during his remand has been, and can be expected to continue to be, affected by restrictions resulting from the pandemic. This is not an insubstantial additional burden: see Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [48]; Rakielbakhour v DPP [2020] NSWSC 323 at [13]-[16].
I am also influenced by the difficulties the applicant has experienced and will continue to experience in preparing what is, at least in the case of the State matters, a complex matter for trial: s 18(1)(l). Preparing a complex case while relying on handwritten notes with limited access to legal resources is far from ideal. It may be the applicant has committed offences for which he deserves a significant sentence. But he should have as fair a trial as possible before that occurs.
I am also influenced by the conditions that are able to be imposed. As noted above, the conditions I have in mind will require him to be at the home of his parents unless he in the company of one or both of them. I also have in mind that he be prohibited from entering any post office. While perhaps not impossible, the commission of offences in these circumstances will be difficult.
I am of the view that, balancing the various considerations, the applicant does not pose an unacceptable risk if granted bail, subject to the very stringent restrictions set out in the order below: 1. Bail is granted on the condition that the applicant is: 1. To be of good behaviour. 2. To live at X XXXX Road, East Hills NSW 2213 with his parents, Janice Simpson and John Simpson, and nowhere else. The applicant is not to be absent from this address unless in the company of Janice Simpson or John Simpson. 3. To report to XXXXXXX Police Station each day between the hours of 6am and 8pm. 4. To appear at the XXXXXX XXXXXX XXXXXXXX Court on 7 February 2022 and thereafter as required. 5. Not to make, or attempt to make contact in any way, whether directly or indirectly through a third party, and whether in person, or by telephone or other electronic means including social media (including Facebook, Twitter, Tumblr, Instagram, Snapchat), with any person the Crown has indicated it intends to call as a witness in any of the outstanding proceedings against him. 6. The applicant is to travel from the correctional centre from which he is to be released on bail in the company of his mother Janice Simpson or his father John Simpson, one of whom must be in attendance at the correctional centre before the applicant is released. 7. Any current passport is to be surrendered to the Officer in Charge [OIC] of the state prosecution prior to the applicant's release from custody. 8. Not to apply for any new passport or travel document. 9. Not to go within 500 metres of any point of departure from the Commonwealth of Australia. 10. Not to enter any post office or the premises of any parcel sending or delivery service. 11. The applicant is to have use of only one mobile telephone and to provide the OIC with the number of that phone, its IMEI number and any user password for it within 24 hours of acquiring it or resuming possession of it following release. The applicant is to notify police of any change to any user password prior to making any such change. The applicant consents and permits police to check the content of and communications made on that telephone. The applicant is to provide any reasonable assistance to enable access to the telephone and any data stored on the telephone. 12. One acceptable person is to deposit acceptable security as security for the payment of $250,000 which he or she agrees to forfeit if the applicant fails to appear before court in accordance with the bail acknowledgment. 13. It is noted that Maria Borg is an acceptable person for the purposes of such security, upon provision of sufficient evidence of identity and residential address. 14. The applicant is to present himself at the front door at the direction of any police officer to confirm compliance with the residence 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. 15. The applicant is not to use any encrypted form of communication.

Parties

Applicant/Plaintiff:

Simpson

Respondent/Defendant:

Legislation Cited (6)

Bail Act 2013(NSW)

Biodiversity Conservation Act 2016(NSW)

Crimes Act 1900(NSW)

Crown Prosecutors Act 1986(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Environment Protection and Biodiversity Conservation Act 1999(Cth)

Cases Cited (25)

Judgment

HARRISON J: I agree that the applicant should be granted bail on the conditions proposed by Dhanji J and for the reasons that he has given. I also agree with, and endorse, the further remarks of Davies J.
DAVIES J: I have had the advantage of reading in draft the judgment of Dhanji J and, subject to what follows, I agree with his Honour's reasons and the grant of bail on the conditions he proposes.
Having regard to the considerable strength of the Crown case in relation to both the State and the Commonwealth offences, the applicant's history of offending, and the offences for which the applicant has been convicted (being both fraud offences and offences similar to the present Commonwealth alleged offences), I consider that there is a strong concern that if released to bail the applicant will continue to commit serious offences. However, as Dhanji J makes clear, it is necessary to balance that concern against factors in s 18 which must be considered.
The factor which weighs most heavily with me is contained in s 18(1)(l), being the need for the accused person to be free to prepare for his or her appearance in Court. The applicant is unrepresented, and the cases against the accused are not entirely straightforward. Whilst the evidence discloses that some facilities have been provided to the applicant in custody, it is clear that those facilities have limitations which make it difficult for him to prepare his case adequately for trial.
The position here for the applicant is not as difficult as apparently obtained in Shalala v R [2012] NSWSC 351, but as Hulme J made clear in that case at [6] and [22], an accused has a right to appear for himself, and he must be able adequately to prepare his case. The evidence suggests that his preparation is being impaired by the limitations of his custody. Those limitations have been increased by the impact of the Covid-19 pandemic and the responses which Corrective Services have made to the pandemic.
Having regard to the significance of the applicant's need to prepare his case, and to the bail conditions which are proposed, I consider that the concern that the applicant will continue to commit serious offences does not amount to an unacceptable risk.
Since the issue concerning the appearance of a prosecutor on behalf of each of the State and Commonwealth was not argued before us, I prefer to express no opinion on the matters in paragraphs [10]-[19] of Dhanji J's judgment.
DHANJI J: Neil Andrew Simpson (the applicant) has applied for his release on bail pursuant to s 49(1) of the Bail Act 2013 (NSW) ("the Act"). This Court has jurisdiction to hear the application, a bail decision having previously been made by the Supreme Court (s 67(1)(e) of the Act). Release applications were refused on 12 October 2020 by Hidden J, when the applicant's matters were before the Local Court, and most recently by N Adams J on 15 June 2021, by which time the applicant's matters had progressed to the District Court.
The applicant appeared for himself on this application and, it is understood, intends to represent himself at trial. Separate counsel were briefed on behalf of the Commonwealth and State directors. Both opposed the grant of bail.

The appearance of two Crowns

Before dealing with the substance of the matter, it is appropriate to say something with respect to the fact that two prosecutors appeared to oppose the application.
The issue of whether it was appropriate for two prosecutors to appear was raised at the commencement of the hearing. Neither counsel appearing for the respective Directors anticipated the question and did not come equipped to answer it. That is not a criticism, particularly given that two prosecutors had appeared on each of the previous two applications in this matter. Ultimately, the applicant indicated that he had anticipated the appearance of separate prosecutors for the Commonwealth and the State and indicated he did not object to both appearing.
Thus, while the matter was raised, the Court did not hear argument and was not required to resolve the issue. In these circumstances, it is not appropriate to express any concluded view as to whether two prosecutors can (or, if they can, should be allowed to) appear on a release or detention application. My preliminary view, however, is that a single prosecutor should appear on a release or detention application.
Bail is defined in s 7 of the Act as "… authority to be at liberty for an offence". As noted above, the present release application is made pursuant to s 49(1) of the Act which provides that "[a] person accused of an offence may apply to a court or authorised justice for bail for the offence to be granted or dispensed with".
While having regard to the above provisions bail is for "an offence", as a practical matter, a person charged with multiple offences makes a single release application. The release application is, in the ordinary course, a single proceeding in which one prosecutor appears. The result of that proceeding is binary, in that the applicant is either refused or granted bail (potentially with conditions) and is either in, or out, of custody. Indeed the bail concerns in s17 of the Act can only sensibly be addressed by reference to all the allegations against the applicant.
In the present matter there are two indictments, one State and one federal. The simple fact that there are two indictments does not, however, justify the appearance of two prosecutors. If, for example, there were to be two (or more) trials on separate indictments with respect to State matters, this would not justify the appearance on a release application of prosecutors appearing with respect to each indictment. Here, there are two prosecutors as a result of the happenstance that one indictment is federal and the other State.
The appearance in opposition to a release application of two prosecutors has the potential for, at the least, the appearance of, unfairness. If for example, an applicant were to give evidence, or call witnesses, presumably each prosecutor would assert a right to cross-examine the applicant or the witness. Even if an agreement was reached as to who was going to conduct the cross-examination, there would be two addresses. In the present matter, there were two sets of submissions and both counsel addressed. While the context may be different, it is noteworthy that in a trial the rule is one counsel addresses unless it is an "exceptional case": see Cargnello v Director of Public Prosecutions (Cth) (2012) 224 A Crim R 204; [2012] NSWCCA 162 at [41]; Director of Public Prosecutions v Hills (No 8) [2010] VSC 596.