WR v Director of Public Prosecutions

Bail Pending Appeal

1. Section s 22(1) of the Bail Act provides that where an appeal is pending in this Court against a conviction on indictment, the Court is not to grant bail unless it is established that "special or exceptional circumstances exist". If the subject offences are "show cause offences", then the requirement in s 22(1) replaces the "show cause" requirement (s 22(2)). Otherwise, the approach of the Bail Act to assessing "unacceptable risks" still pertains following a finding of "special or exceptional circumstances" (s 22(3); see El‑Hilli and Melville v R [2015] NSWCCA 146 at [13]).
2. In El Khouli v R [2019] NSWCCA 146 at [22] ("El Khouli"), this Court (Hoeben CJ at CL, Walton and Wilson JJ) observed as follows in relation to s 22: "… a distinction appears to have been drawn on the authorities, when the grounds of appeal are advanced as a factor demonstrating special or exceptional circumstances, between cases where the strength or merit of an appeal has been relied upon in isolation, and those where the applicant relied upon that factor in combination with other factors including whether the applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal." (emphasis added)
3. Their Honours noted that in the former type of case the applicant must show "more than that the grounds seem arguable" and that it may be necessary to establish that the appeal is "most likely to succeed" (El Khouli at [23], citing Petroulias v R [2010] NSWCCA 95 at [34]).
4. In Fantakis v Director of Public Prosecutions [2021] NSWCCA 271 at [12] ("Fantakis"), I observed as follows in relation to this aspect of El Khouli: "I do not take El Khouli as specifying different thresholds about the relative strength of the proposed grounds of appeal that must be shown in order to demonstrate special or exceptional circumstances. The above passage from El Khouli identifies a particular matter that is often highly relevant to a grant of bail pending an appeal, namely, whether an 'applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal'. That circumstance is relevant to an assessment of whether special or exceptional circumstances have been shown in that the appeal may be rendered futile, or at least of lesser utility, if there is no grant of bail. Often, the interaction between the assessment of the relative strength of the appeal and the utility of the appeal will bear heavily upon whether or not special or exceptional circumstances exist (see United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [41])."
5. To the extent that an application for bail pending appeal requires an assessment of the relative strength of the grounds of appeal, the approach of this Court is confined "to reaching only a broad overall view of an applicant's apparent prospects" (Obeid v R (No 2) [2016] NSWCCA 321 at [17] ("Obeid"); Fantakis at [15]).

Prospects of Success on Appeal

1. The applicant's Notice of Appeal raises two grounds. The first ground of appeal contends that a miscarriage of justice "occurred by reason of the fact that the [applicant] was not or may not have been fit to stand trial". The second ground of appeal contends that the guilty verdicts on counts 1 and 5 are unreasonable or cannot be supported, having regard to the evidence.
2. The submissions filed in support of the applicant's appeal against his conviction were made available on this bail application. The submissions on ground 2 complain about the supposed inconsistency between the guilty verdicts on counts 1 and 5 compared with the acquittals on counts 2 and 4, and otherwise contend that XX's evidence was unreliable. It is not necessary to consider this ground further. The focus of the present application concerned ground 1 and its relative strength.
3. The operative principle governing an appeal against a conviction where the appellant contends that they were unfit to stand trial was stated in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31] ("RTI") as follows: "If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the court can come to that finding that there will be no possibility of a miscarriage of justice. I do not believe that such a finding is open in the present case. Therefore, the convictions and sentences must be quashed and a new trial ordered." (emphasis added)
4. The first part of this passage appears to establish a relatively low threshold for an appellant to satisfy in these circumstances, although three matters should be noted. First, a mere reduction in the capacity of an accused person to meet the test of unfitness, stated in R v Presser [1958] VR 45, which "falls short of denying to [an] accused the capacity to understand and to follow the proceedings in each of the necessary aspects" is insufficient to constitute unfitness (R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [297]-[298]; "Rivkin").
5. Second, the Presser test is not satisfied merely because, due to some psychological or cognitive condition, the accused displayed inappropriate behaviour in the trial, including while they gave evidence, provided that they were "able to give evidence in relation to the matters in issue … had a clear understanding of what was involved in the offence charged, and was able to make the answer, which [the accused] wished to make, in relation to it" (Rivkin at [303]).
6. Third, since March 2021, the test for determining whether an accused person is fit to stand trial has been set out in s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the "MHCIFP Act"). The effect of that provision is set out in the passage extracted below from Dr Olav Nielssen's report. It suffices to state that s 36(1) is clearly based on Presser.

Applicant's Evidentiary Material concerning Fitness to be Tried

1. Consistent with the above statements from Obeid and Fantakis, the parties placed a confined set of evidentiary material before the Court in relation to ground 1. The applicant read an affidavit from his solicitor who has acted for him since the time of his arrest in 2016. The solicitor recited the applicant's lengthy medical history, which relevantly includes major heart surgery in 1994 and recurrent cardiovascular issues since that time.
2. The solicitor also notes that, after a number of adjournments, the applicant's trial commenced on 8 November 2021. The applicant was represented by very experienced Senior Counsel. The solicitor states that, during the trial, he became concerned about the applicant's cognitive function. He says that in November 2021, after the trial had commenced, he arranged for the applicant to undergo a "CT brain scan", the results of which revealed no physical abnormality. Despite these concerns, no question of fitness was raised at the trial. As noted, the applicant was called to give evidence in his case.
3. In January 2022, while the applicant awaited sentencing, his solicitor obtained reports from a geriatrician, Associate Professor Tuly Rosenfeld, and Dr Nielssen, a psychiatrist, which suggested that the applicant was suffering from dementia and was cognitively impaired. After the applicant was sentenced, further reports were obtained from those experts addressing the applicant's fitness at the time of his trial. Otherwise, the solicitor's affidavit included a self-admonishment for not addressing the applicant's fitness to stand trial prior to his conviction.
4. The applicant also tendered a report from his treating cardiologist dated 14 February 2022. The cardiologist concluded that there was "clinical evidence of progressive cognitive impairment". The cardiologist opined that, based on the applicant's age and degree of cognitive dysfunction, he is "very likely [to] descend into frank dementia and … life expectancy in the realm of 3 [years] or less".1
5. Based on prior testing by a general practitioner, and his own interview with and examination of the applicant, Associate Professor Rosenfeld concluded that the applicant "has multiple causes for the occurrence and progression of brain disease which is more likely than not associated with vascular disease of the brain". [1] He subsequently concluded that the vascular brain disease has resulted "in degenerative changes of his brain, cognitive impairment and dementia that [have] as well as other impairments in cognitive function prominently affected frontal lobe executive function". [2] Associate Professor Rosenfeld opined that these impairments were present during November and December 2021 and added: [3] "In my opinion therefore [WR] was then and is not currently or in the future, as his cognitive function continues to deteriorate, properly able to undertake, properly understand, respond to the proceedings or explanation and advice nor with due reasoning and judgement instruct his legal representatives in legal proceedings."
6. Based on his own interview and testing, as well as Associate Professor Rosenfeld's reports, Dr Nielssen diagnosed the applicant with dementia. [4] In his later report of 4 September 2022, Dr Nielssen addressed the applicant's fitness to stand trial by reference to the criteria in s 36(1) of the MHCIFP Act, as follows [5] : "With regards your further question, I believe that at the time of the two assessments [WR] was unfit for trial according to the criteria set out in section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act, on the basis of the effect of his cognitive function on his ability to follow any proceedings, provide reliable instructions to his legal representatives and on his ability to give coherent evidence on his own behalf. With regards the specific criteria, was [WR] able to: (a) understand the offence the subject of the proceedings [WR] was aware of the charges he faced. (b) plead to the charge [WR] was consistent in his account of how he would plead to the charge. (c) exercise the right to challenge jurors [WR] had some knowledge of the composition and function of a jury. (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged [WR] understood the general nature of the proceedings. (e) follow the course of the proceedings so as to understand what is going on in a general sense [WR] has a condition that affects his ability to concentrate and retain information, and he would be unable to follow the detail of any proceedings. (f) understand the substantial effect of any evidence given against the person, [WR] was assessed to be able to understand the substantial effect of evidence given against him in court, with the assistance of legal advisers and explanations from his wife. (g) make a defence or answer to the charge [WR] was assessed to be able to make his version of the events known, although he had obvious difficulty retrieving information and communicating in a coherent way, and would have difficulty giving coherent evidence on his own behalf. (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary [WR] indicated how he would respond to the charge. However, he has obvious impairment in communication that might affect the reliability of instructions and any evidence he was able to give in court. (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. [WR] was assessed to [be] able to decide on which defence to rely on. His condition is by definition permanent and irreversible, and he is unlikely to become fit within the next twelve months. With regards [WR's] fitness for trial between 15.11.21 and 3.12.21, it is possible that his condition deteriorated in the months between the completion of the trial and the initial interview conducted on 24.1.22. However, based on his presentation at the time of the initial interview I believe he was probably not fit for trial during the period in which the trial took place." (emphasis added)
7. At this point, six matters should be noted about Associate Professor Rosenfeld and Dr Nielssen's opinions about the applicant's fitness to stand trial in late 2021.
8. First, in addressing the criterion in s 36(1)(e) of the MHCIFP Act, Dr Nielssen opined on the applicant's ability to follow the "detail" of any proceedings. This does not properly address s 36(1)(e), which is addressed to whether the accused can follow the proceedings "in a general sense".
9. Second, in relation to s 36(1)(h), Dr Nielssen's opinion rises no higher than that the applicant's impairment in communication "might" have affected the reliability of his instructions and evidence.
10. Third, in respect of s 36(1)(g), even though Dr Nielssen concluded that the applicant was unfit because of the effect of his cognitive impairment on his ability to give "coherent evidence", Dr Nielssen also concluded that he was "able to make his version of the events known".
11. Fourth, although Associate Professor Rosenfeld addressed the applicant's medical condition (namely, vascular brain disease) at length, the basis of his opinion that the applicant was unfit to stand trial is not explained. As was pointed out in argument, the effect of dementia on a person's fitness to stand trial is a matter of degree. It is also partly dependent on the particular circumstances of the trial. There does not appear to be any specific consideration, on the part of either Associate Professor Rosenfeld or Dr Nielssen, of the circumstances of the trial that the applicant in fact faced.
12. Fifth, and consistent with the point just made, it can be expected that the experienced Senior Counsel who acted for the applicant at trial would have insight into each of the matters identified by Dr Nielssen and Associate Professor Rosenfeld, given that he conducted the trial and called the applicant to give evidence. The Court was advised that that Senior Counsel has not yet been approached to give evidence.
13. Sixth, each of the matters identified by Dr Nielssen can be checked against the transcript of the applicant's evidence at the trial, bearing in mind the points noted in [13] and [14] above.

Crown Evidence on Fitness

1. The Crown tendered a limited amount of material obtained from Justice Health. This included a report from Dr Jacques Ette, a general practitioner, which was tendered at the applicant's sentence hearing. The report outlined assessments of the applicant undertaken upon his entry into custody and the manner in which Justice Health addressed his various medical conditions. Dr Ette noted the effect of Associate Professor Rosenfeld and Dr Nielssen's reports but added that there was no mention of the applicant suffering from dementia in the health summary provided by his general practitioner.
2. The Crown also tendered notes from the applicant's Justice Health file for various days between February 2022 and February 2023, some of which were tendered to show the level of care provided to the applicant. The notes also included observations by Justice Health personnel about the applicant's psychological state and cognitive capacity, such as: "[r]eports he does not have any mental health problems"; [6] "[h]is quality of speech was normal [and] his thought form … appeared to be logical and connected"; [7] and "presents as logical/articulate". [8]
3. Leaving aside this material, the Court was advised that the Crown was not able to obtain reports responsive to the reports of Associate Professor Rosenfeld and Dr Nielssen in time for the hearing of this application, although it anticipates having those reports by the time the appeal is heard. The applicant's Notice of Appeal (and the submissions in support) were filed by October 2022. The application for bail pending appeal was filed on 28 November 2022. Although it has been over three months since the bail application was filed, and the basis for the appeal has been fully articulated, it can be accepted that the period over which that occurred could make it difficult to obtain responsive reports, at least in the relatively narrow field of forensic psychiatry. In the end result, the Court must make its assessment based on the material that was presented while allowing for the circumstance that the Crown has not yet had the full opportunity to obtain material in response.

Assessment of Prospects

1. Senior Counsel for the applicant in this Court, Mr Game SC, submitted that, having regard to the relatively low threshold for success on ground 1 of the appeal, the Court should find that the applicant is "most likely to succeed" on appeal. The matters noted above at [22]-[28], and the fact that the evidence concerning the applicant's fitness is not yet complete, mean that I do not accept that submission. Nevertheless, I accept that the applicant has at least reasonable prospects of success in establishing that there is "a question about the propriety of the conviction because [the applicant] may have been unfit to stand trial" (RTI supra). It is simply not possible at this point to make any assessment as to whether, if that threshold was overcome, the Crown would establish that a court acting reasonably must have found that the applicant was fit to stand trial. However, at the risk of stating the obvious, if that point is reached then the burden of demonstrating the applicant's fitness will be on the Crown.

Other Evidence

1. Three other aspects of the evidence adduced on the bail application should be noted.
2. First, as noted, the evidence travelled beyond addressing the applicant's cognitive decline. He is presently 85 years of age and has a series of medical conditions beyond his cognitive decline, including vascular and heart disease, sleep apnoea and lung disease that leaves him short of breath, as well as age-related physical frailty including hip replacements, a knee replacement, a shoulder operation and the like. Given the competing evidence, I am not in a position to make any finding to the effect that his various medical conditions are not being adequately cared for in custody. Nevertheless, it can be accepted that he is vulnerable and has a limited life expectancy, although they were matters that were presumably known to the sentencing judge.
3. Second, the applicant's wife affirmed an affidavit in support of the application for bail. She noted that, prior to entering custody, the applicant owned and operated a bakery for 45 years. She deposed to having suffered a significant accident in April 2022, as a result of which she broke her C5 vertebrae. She said that she is in a wheelchair and described herself as a quadriplegic, although there is evidence that she can drive a car. She stated that she "desperately want[s] [the applicant] to return home to help me with everyday life and running the bakery". She also agreed to accompany the applicant outside of their home as part of any bail conditions and agreed to forfeit a sum without security if he fails to comply with his bail conditions. Her desire for the return of her husband is understandable. However, given that the premise of the application for bail is that the applicant is suffering from dementia and is physically frail, no allowance can be made for any assistance the applicant might provide her or for his conduct of the family business.
4. Third, the applicant was on bail for five years prior to his trial. There is no suggestion that he did not comply with his bail conditions during that period.

Special or Exceptional Circumstances

1. The applicant did not seek to establish special or exceptional circumstances solely by reference to the prospects of success on appeal. Instead, consistent with El Khouli, the applicant also contends that by the time his appeal is heard, or at least decided, he would have spent a substantial part of his minimum non-parole period in custody, i.e. the applicant relies on the interaction between the assessment of the relative strength of the appeal and the utility of the appeal (Fantakis, supra). The applicant also relies on his age and vulnerability in custody, a matter that has been addressed. Those matters do not establish special or exceptional circumstances in their own right, although they can cumulatively form part of a finding to that effect.
2. The applicant's prospects of success on appeal, based on the material available at present, have already been addressed. If the Crown's evidence in response to Dr Nielssen and Associate Professor Rosenfeld ultimately supports the assessment that the applicant was unfit, or at least does not contradict the applicant's material, then it is very likely that the hearing of the appeal in June 2023 will be brief and will resolve in the applicant's favour. In that case, a decision to grant bail will be vindicated. If the Crown's evidence contradicts the applicant's experts, then, to resist the appeal, it will either have to argue that, overall, the material does not raise a question as to the applicant's fitness or otherwise is such as to demonstrate that a court acting reasonably must have found that the accused was fit to stand trial. It is likely that any appeal addressing those issues will occupy more than one day of hearing and will require some (perhaps significant) time to publish a decision. In those circumstances, there is a strong likelihood that the Court's decision would not be available until later in 2023, when the large bulk of the applicant's minimum non-parole period will have been served. Given that possibility, my assessment of the relative strength of the appeal and the applicant's circumstances, I am satisfied that special or exceptional circumstances have been established.

Unacceptable Risk

1. Having found that special or exceptional circumstances have been established, it is necessary to address the relevant bail risks (see ss 18-19 of the Bail Act; [5] above). I accept that there is a risk to XX and any other Crown witnesses, albeit not great, and a risk, albeit small, that the applicant might abscond. Given his bail history, family ties and personal circumstances, I am satisfied that those risks can be reduced below a level that is unacceptable by the imposition of appropriate conditions.
2. Following the hearing of this application, the parties provided bail conditions that it was agreed should be imposed if the Court proposed to grant bail. Subject to two matters, I am satisfied that the agreed bail conditions are appropriate.
3. The first matter is that I consider it appropriate to exclude the applicant from any international point of departure.
4. The second matter concerns a proposed bail condition which the parties describe as a "pre-release condition". Section 29 of the Bail Act provides: "29 Limitation on power to impose pre-release requirements (1) The following requirements (and no other requirements) can be imposed by a bail authority as pre-release requirements-- (a) a conduct requirement that requires the accused person to surrender his or her passport, (b) a security requirement, (c) a requirement that one or more character acknowledgements be provided, (d) an accommodation requirement. (2) A requirement of a bail condition is a pre-release requirement if the bail condition specifies that the condition must be complied with before the accused person is released on bail."
5. The parties proposed a condition of whereby the applicant is to travel from the Long Bay Correctional Centre (from which the applicant is to be released on bail) in the company of a specified person "who must be in attendance at that centre before release occurs". To the extent that this imposes an obligation on the applicant, it is a "conduct requirement" and can be the subject of a valid bail condition (see s 25 of the Bail Act), i.e. if he does not travel with the specified person then he is in breach of his bail. However, in this case, the parties purported to designate this condition as a pre-release requirement. To the extent that it is a conduct requirement it is not of a kind specified in s 29(1)(a) and otherwise does not fall within s 29(1). I decline to designate the condition as a pre-release requirement.
6. Accordingly, I propose the following orders: 1. The applicant be granted bail on the following conditions: Conduct, Accommodation and Curfew Conditions a. The applicant is to be of good behaviour. b. The applicant is to appear at Court of Criminal Appeal at Sydney on 13 June 2023 and thereafter as directed. c. The applicant is to live at XXXXXX and nowhere else. d. The applicant is to report to the Officer in Charge at XXXX Police Station each Tuesday and Friday between the hours of 8am and 8pm. e. The applicant is not to be in the company of any person aged under 18 years unless in the company of XXXXXX. f. The applicant is to comply with the terms of any apprehended domestic violence order or apprehended violence order made against him. g. The applicant is not to approach or communicate with, or attempt to contact by any means, either directly or by any third party, XXXX, XXXX, or XXXXX, or any child of those persons, including by telephone and internet. h. The applicant is to travel from the Long Bay Correctional Centre from which the applicant is to be released on bail in the company of XXXXX, who must be in attendance at that centre before release occurs. Travel and Passport Conditions i. The applicant is to surrender any passport to Newcastle District Court Registry and is not to apply for a new passport or other travel document. The Court notes that his passport has already been surrendered. j. The applicant is not to approach within 2km of any international point of departure. Security and Involvement of Acceptable Person k. An acceptable person is to enter into an agreement under which that person agrees to forfeit the sum of $200,000 if the applicant fails to appear before court in accordance with the bail acknowledgement. Character Acknowledgement l. An acceptable person is to provide a character acknowledgement which complies with the Bail Act 2013 (NSW) and the Bail Regulations 2014 (NSW).
7. DAVIES J: I agree with Beech-Jones CJ at CL.
8. McNAUGHTON J: I agree with Beech-Jones CJ at CL.

Endnotes

1. Exhibit C at page 4.
2. Exhibit A at 121.3.
3. Exhibit A at p 159.5.
4. Exhibit A at 159.9.
5. Exhibit A at page 153.8.
6. Exhibit A at 165
7. Ex 1 at p 22.2.
8. Ex 1 at p 27.1.

Amendments 13 March 2023 - [20] and [21] - applicant's name anonymised. 20 March 2023 - [43] - reference to s 26 of the Bail Act corrected to read s 25. 20 March 2023 - The applicant's daughter is further anonymised and referred to as "XX". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2023