JOHNSON J: The Court is in a position to give its decision in the matter. Wilson J will deliver the first judgment.
WILSON J: On 18 July 2018, Nicholas Widdowson was found guilty by a jury of four offences, being using a carriage service to transmit indecent material to a person under the age of 16 years contrary to s 474.27A(1) of the Criminal Code (Cth); exposing a child to indecent material contrary to s 66EB(3) of the Crimes Act 1900 (NSW); and three counts of sexual assault contrary to s 61I of the same Act. He had formerly entered a plea of guilty to count 2, that being an allegation of possessing child abuse material.
On 24 October 2018 sentence was imposed upon the applicant for those offences in the District Court of New South Wales by his Honour Judge Norrish QC. He imposed an aggregate sentence of 9 years imprisonment on the applicant with a 5 year non-parole period fixed. The non-parole period will expire on 17 March 2023.
Following the imposition of sentence, on 2 November 2018, the applicant filed a notice of intention to apply for leave to appeal against conviction and sentence. The notice was valid for six months from the date of filing. Shortly before its expiration, an extension of time was sought and granted by the Registrar of the Court, extending the life of the notice of intention to seek leave to appeal to 1 October 2019.
On 25 July 2019, a further extension was sought and granted until 31 October 2019. No notice of application for leave to appeal was filed within that period and no further extension of the notice of intention to seek leave to appeal was sought. It lapsed from 31 October 2019.
On 27 April 2020, the applicant filed a notice of intention to apply for leave to appeal against conviction and sentence. No application for an extension of time in which to seek leave to appeal was filed.
On 12 May 2020, a handwritten document was filed by the applicant in which he sought to apply for leave to appeal "on all grounds". Although no formal grounds have been particularised the document was accompanied by another document entitled "Merits to Consider against Convictions and Severity". A number of discursive complaints are raised in the merits document concerning the conduct of the trial and the veracity of the complainant. Nothing is advanced relevant to an application for leave to appeal against sentence. Although no extension of time has been sought and no reason advanced to explain the failure to bring an application within time, the matter has been listed for hearing before this Court on 25 September 2020, perhaps rather precipitately.
On 23 June 2020, the applicant filed an application for bail or release to the Supreme Court and the application was listed today before this Court. It is not entirely clear why the bail application is before us. At best, it seems somewhat hopeful in that there is no appeal properly on foot. That gives rise to a jurisdictional issue and calls into question the power of the Court to consider an application for bail.
Division 3 of Part 6 of the Bail Act 2013 (NSW) governs the powers to hear bail applications. Section 67 of the Act provides powers which are specific to the Court of Criminal Appeal to hear and determine a bail application. The section is (relevantly) in these terms:
67 Powers specific to Court of Criminal Appeal
(1) The Court of Criminal Appeal may hear a bail application for an offence if -
(a) the Court has ordered a new trial and the new trial has not commenced, or
(b) the Court has made an order under section 8A (1) of the Criminal Appeal Act 1912 and the person is before the Court, or
(c) the Court has directed a stay of execution of a conviction and the stay is in force, or
(d) an appeal from the Court is pending in the High Court, or
(e) a bail decision has been made by the Land and Environment Court or the Supreme Court.
(2) […].
The circumstances of the present application do not fall within s 67. This is not a matter where this Court has ordered a new trial, or made an order with respect to the continuation of committal proceedings, or directed a stay of execution of a conviction; nor is there an appeal pending from a decision of this Court to the High Court and no bail decision has been made by either the Land and Environment Court or the Supreme Court.
Section 67 provides no power to hear this application. Neither does there appear to be any general power available to this Court in the present circumstances.
Division 2 of Part 5 provides for powers of courts and authorised justices to hear bail applications. Section 48(2) of the Act provides that a bail application may only be heard and determined by a court with power to do so. Section 61 provides for a court to hear a bail application for an offence if proceedings for the offence are pending in the Court. The meaning of that phrase 'pending in the Court' is given by s 59. It provides that for the purposes of Part 6 of the Act, the part which deals with the power to hear an application, that phrase, 'proceedings pending before a court', is a reference to substantive proceedings. Pursuant to s 5 of the Act, substantive proceedings for an offence do not include proceedings relating to bail. Thus, the fact that a bail application has been placed before the Court does not of itself enliven the Court's jurisdiction; neither does the filing on 25 July 2020 of a notice of intention to seek leave to appeal enliven this Court's jurisdiction to hear a bail application, since the application was filed out of time and an extension of time has not been sought by the applicant or granted by the Court.
Regard must also be had to the Criminal Appeal Act 1912 (NSW). Section 10(2)(b) of that Act is in these terms (relevantly):
10 Method and time for making an appeal
…
(2) For the purposes of any other Act or statutory instrument (whether enacted or made before or after the commencement of this subsection) -
(b) an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court).
The application which is listed on 25 September is one which has not been made within the time it is required to be made by the Criminal Appeal Rules. No appeal is pending before this Court and there is no basis upon which the Court could hear the applicant's release application. There is no jurisdiction to do so unless an extension of time is granted to file the Notice of Intention to Seek Leave to Appeal until 25 July 2020, the date on which it was in fact filed. That is a course that I do not think this Court can properly take.
Firstly, there is no application before us for an extension of time. Secondly, there is no evidence before the Court to adequately explain or account for the extensive delay in bringing an appeal. Thirdly, there is simply insufficient information to enable us to properly assess the merits of the proposed appeal. That is a feature of some relevance to the decision to extend time or otherwise and it is one properly made by the bench constituted to hear the application for leave to appeal.
Accordingly, in my view the application should be struck out for want of jurisdiction.
Since I appreciate that the applicant, who is unrepresented, is likely to find that outcome bewildering, I make the following observations.
If this Court had had the power to hear and determine a grant of bail I would have concluded that bail should be refused. Section 22 of the Bail Act imposes a limitation on the Court's power to release a person who has been convicted and sentenced, as the applicant has. It provides (relevantly),
22 General limitation on court's power to release
(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision -
(a) an offence for which an appeal is pending in the Court of Criminal Appeal against -
(i) a conviction on indictment, or
(ii) a sentence imposed on conviction on indictment
That is a significant hurdle and it is one which the applicant cannot in my opinion overcome.
In oral submissions this morning the applicant argued that his circumstances are exceptional because, if his case is properly reviewed, his convictions will not stand and, further, he needs to be at liberty to prepare his appeal. As to the merits of the proposed appeal, whilst it is not necessary for the applicant to establish that his appeal will almost certainly succeed or will inevitably succeed, he must be able to demonstrate more than that the grounds are merely arguable. It is difficult to reach that conclusion on the limited material before this Court.
As I have already observed, count 2 proceeded as a plea of guilty. It continues to have relevance to the conviction appeal because it points to the highly sexualised relationship between the applicant and the 15 year old complainant. The other objective evidence before the jury, the text message exchanges and the photographic exchanges, also point to that conclusion. That evidence underpins the convictions which were returned with respect to the offences involving sexual intercourse.
The arguments raised by the applicant in his merits document as to the complainant's unreliability were all squarely before the jury and there is no reason to conclude that the jury was not well placed to make the assessment it did, or that that assessment was not open to it.
The issues raised concerning the asserted failures of the trial judge to properly regulate the evidence that was placed before the jury must be viewed in the context of the applicant's failure to take objection to the admissibility of the impugned evidence at trial, and having regard to the strong directions given by the trial judge as to how the evidence was to be approached by the jury.
There was ample evidence before the jury upon which it could have readily concluded that the applicant was well aware of the complainant's age and pursued her sexually nevertheless. There was ample evidence before the jury upon which it was open to that body to conclude that the offences were committed as alleged. I cannot conclude that the applicant's prospects on appeal are positive.
As to the applicant's need for liberty to prepare his appeal, I accept that it is a very difficult task for an appellant to act for him or herself in prosecuting an appeal against conviction or sentence or both before this Court. That difficulty is compounded by the circumstances of incarceration. However, the applicant has no real plan for furthering the preparation of his appeal if he is at liberty in a way that improves upon what is presently available to him. He has been refused Legal Aid and cannot fund private representation. His plan as articulated to this Court this morning is to find a lawyer to "cast an eye over" his appeal but that plan has to date, almost two years after sentence, borne no fruit, despite the best efforts of his wife. There is no real reason to conclude that the applicant would be any more successful than his wife has been to date in finding legal assistance of that nature. Further, many, if not most, unrepresented appellants who come before this Court are in custody, and they still manage to prepare and present their appeal. The Court typically makes allowances for the disadvantage of an unrepresented litigant, and particularly an unrepresented litigant who is in custody, yet matters are regularly heard and finalised.
I am not persuaded that, had the Court been empowered to hear a bail application, that the applicant could have established that special or exceptional circumstances existed to satisfy the test provided by s 22 of the Bail Act. For my part, I would have refused bail had an application proceeded.
The order I propose is that the application for bail is struck out for want of jurisdiction.
JOHNSON J: I agree with the order proposed by Wilson J and with her Honour's reasons.
Where an application for bail is brought to this Court, it is necessary to consider the provisions of the Bail Act 2013 (NSW) to determine whether this Court may entertain the application. Wilson J has referred to s 67 of the Bail Act 2013 in that respect. From time to time, it is necessary for this Court to consider the application of s 67 to a proposed bail application. See, for example, Karout v Director of Public Prosecutions [2020] NSWCCA 15.
Like Wilson J, I do not consider that the present application falls within s 67. I also agree with her Honour's analysis of the Bail Act 2013 itself and its interrelationship with the Criminal Appeal Act 1912. I am not satisfied that the Court has jurisdiction to entertain the present application.
However, I agree with Wilson J that, as the Applicant is unrepresented and has advanced the application today to this Court, it is appropriate to express a view with respect to the merits of the application itself. In that regard, I agree entirely with the analysis of Wilson J. For my part, if the Court did have jurisdiction to entertain the application, I would have concluded that bail ought be refused.
For these additional reasons I agree with the order proposed by Wilson J.
WRIGHT J: I also agree with the orders proposed by Wilson J for the reasons her Honour has given. In relation to the additional comments of Johnson J, I also agree with those comments. Finally, I also adopt the comments of Wilson J concerning the likelihood of success of the release application had the Court had jurisdiction to hear that application and had it been heard. For those reasons, I agree with the proposed orders.
JOHNSON J: Accordingly, the order of the Court is that the application for bail is struck out for want of jurisdiction.
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Decision last updated: 27 August 2020