R v Rodriguez

1. [1]

   HIS HONOUR: The present proceeding concerns a detention application made with respect to Christopher Rodriguez (“the respondent”).

PROCEDURAL HISTORY

1. [2]

   On 13 August 2020, the respondent was convicted on indictment in the District Court of New South Wales by a jury of two counts of sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900 (NSW).

2. [3]

   On 19 August 2020, the respondent filed a Notice of Intention to Appeal.

3. [4]

   On 7 October 2020, submissions were filed on behalf of the respondent on an application for appeals bail, pursuant to an intended appeal against conviction as to both counts, on the following grounds:

   1. (1)

      the verdict was unreasonable; and

   2. (2)

      the directions in respect of reasonable grounds for belief in consent gave rise to a miscarriage of justice.

4. [5]

   On 9 October 2020 the trial judge, Armitage ADCJ, sentenced the respondent to an aggregate term of 3 years’ imprisonment, expiring on 8 October 2023. A non-parole period of 1 year and 6 months was imposed, commencing on 9 October 2020 and expiring on 8 April 2022.

5. [6]

   On 9 October 2020, Armitage ADCJ heard the respondent’s application for appeals bail and granted conditional bail the same day.

6. [7]

   There is no contention that the respondent has breached his bail. Rather, the applicant seeks detention in this Court for essentially the same reasons that bail was opposed in the District Court.

7. [8]

   Nonetheless, s 75 of the Bail Act 2013 (NSW) provides that any bail application heard by a court “is to be dealt with as a new hearing”. The definition of “bail application”, pursuant to s 4 of the Bail Act, includes “a detention application”.

8. [9]

   Hence, the issue in the present application is not whether the trial judge erred in granting bail, but rather, the question is whether the fresh detention application should be granted.

JURISDICTION TO THE SUPREME COURT

1. [10]

   The jurisdiction of this Court in relation to bail applications is found in Pts 5 and 6 of the Bail Act. The power for the Court to hear a bail release application where there is an appeal pending in the New South Wales Court of Criminal Appeal (“the CCA”) is governed by ss 61, 62 and 66(1) in Pt 6 of the Bail Act.

2. [11]

   The Crown initially placed reliance upon s 62 of the Bail Act in order to establish a jurisdictional footing for the present application, however, later shifted attention to s 66(2) of the Bail Act.

3. [12]

   Given the conclusions I will reach in that matter as to the existence of jurisdiction under s 66(2), it is strictly unnecessary to consider the operation of s 62 beyond noting that the respondent has been convicted of the offences; proceedings on appeal against conviction are pending; and, it was common ground, the respondent has not yet made his first appearance before the CCA in relation to his appeal.

4. [13]

   Before leaving the operation of s 62, in passing I note that there is some ambiguity as to the meaning of first appearance before the CCA. Section 4 of the Bail Act defines “first appearance” as “a first appearance of an accused person before a court or authorised justice in proceedings for an offence”. An “authorised justice” is defined as:

5. [14]

   That definition does not appear to include the Registrar of the CCA. Thus, the first appearance of the matter before the Court may arguably not take place until there is an appearance before the justices constituting the Court, which may be the date of the actual hearing.

6. [15]

   Before turning to s 66(2) of the Bail Act, it is useful to discuss the operation of s 66(1). As to the jurisdiction conferred by s 66(1), the relevant principles on the application were set out by this Court in R v Brown (Unreported, Supreme Court of NSW, Walton J, 6 February 2019) (“Brown”) at [16] and the CCA in El Khouli v R [2019] NSWCCA 146 (“El Khouli”) at [13]. In Brown, s 66(1) of the Bail Act was held as the source of the Court’s jurisdiction to hear the release application, by virtue of the prior refusal in the District Court in that matter. Additionally, it was there, as it is here, common ground that the offender was yet to make his first appearance in the CCA. El Khouli is further authority for the submission that this Court has jurisdiction to hear a release application by virtue of s 66(1), where there has been a previous District Court refusal. Further, in Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 (“Noufl”) (per Hamill J), it was held that a single judge of this Court does not have jurisdiction to hear an application under the Bail Act where there is an appeal pending before the CCA and there has been no prior refusal of bail, although, as I will discuss, his Honour’s attention, in my view, was directed to s 66(1) of the Bail Act.

7. [16]

   However, those circumstances do no operate in the present context. As mentioned, in the present application, bail was granted by the trial judge after conviction on indictment. Consequently, the Crown application is brought by way of a detention application, following a bail decision being made previously in the District Court.

8. [17]

   In this matter, the Crown contended that s 66(2) provided the Court with the jurisdiction to entertain the detention application, operating in the same manner as when jurisdiction is enlivened by s 66(1) to entertain a release application. The respondent did not cavil with that submission.

9. [18]

   The Crown contended that, in considering the application of Pt 6 of the Bail Act, guidance can be gained from the Second Reading Speech for the legislation (of 9 May 2013) which relevantly contained the following passage:

10. [19]

    The Crown submitted that, in light of the Second Reading Speech, the legislative intention was to confer in the Bail Act, by way of detention, this Court jurisdiction to entertain applications where a bail decision has already been made by the District Court, making specific reference to the hearing of a detention application in such circumstances.

11. [20]

    The Crown also submitted, in considering the intention of the reforms by the Bail Act, in contrast to the Bail Act 1978 (NSW), it is useful to consider the observations of Christopher White, Policy Manager, Justice Policy, Department of Attorney General and Justice, in his article published by the Judicial Commission of NSW, “An introduction to the Bail Act 2013” (Judicial Officer’s Bulletin, Vol 26(1) (February 2014)). In particular, reference was made to an extract at page 4, which appears below:

12. [21]

    In that light, the Crown submitted that the provisions of the Bail Act do not limit the prosecution’s capacity to seek a redetermination of bail by the bringing of a detention application in another jurisdiction. Specifically, s 66 provides this Court with the power to hear not only release applications where a prior refusal has occurred, but additionally variation or detention applications where a decision to grant bail has been made by another court, here the District Court.

13. [22]

    Even with the receipt of supplementary submissions, the Court has not heard full argument of the question of jurisdiction in this matter.

14. [23]

    I accept the submissions advanced by Ms R Khalilizadeh, counsel for the respondent, that, whilst Noufl, El Khouli and Brown refer to jurisdiction in circumstances where there have been a prior refusal of bail and accordingly, those cases were not concerned with s 66(2) of the Bail Act (the passage in Noufl at [60] where reference is made to s 66 simpliciter is plainly intended to be a reference to s 66(1)).

15. [24]

    A twofold distinction is drawn in s 66 of the Bail Act between subss (1) and (2) as follows:

    1. (1)

       Subs (1) concerns a release application, whereas subs (2) concerns a detention or variation application.

    2. (2)

       Subs (1) operates upon a refusal of bail by, inter alia, another court, whereas subs (2) operates if a bail decision has been made by, relevantly, the District Court.

16. [25]

    There is no reason, in my view, to read down the clear words of subs (2) extending the operation of the provision to “a bail decision” (meaning, in the context of the provision, any bail decision), with the limitation in subs (1), namely, that the jurisdiction only operates where there has been a refusal of bail in, inter alia, another Court (other than this Court). The legislation plainly draws a distinction in this respect between subss (1) and (2); with any possible inconsistently being resolved by the provisions dealing with different subject matters – subs (1) with release applications and subs (2) with detention or variation applications.

SPECIAL OR EXCEPTIONAL CIRCUMSTANCES: RELEVANT PRINCIPLES

1. [26]

   Pursuant to s 22(1), the applicant must establish that special or exceptional circumstances exist to justify the grant of bail: El-Hilli and Melville v R [2015] NSWCCA 146 (“El-Hilli”) at [11] (per Hamill J, with whom Simpson and Davies JJ agreed). The requirement to establish special or exceptional circumstances is at least as onerous as the requirement to show cause: El-Hilli at [11].

2. [27]

   The relevant principles as to a determination under s 22 were set out in Brown at [19]-[35] and are adopted in this judgment.

General Principles

1. [28]

   Where s 22 is engaged there are two stages. The applicant must first demonstrate special or exceptional circumstances. Subject to special or exceptional circumstances being found, the Court must then apply the unacceptable risk test and “do so by application of the exhaustive list of matters set out in s 18.” In El-Hilli, the Court observed (at [13]):

2. [29]

   Reference should also be made to El-Hilli at [28]-[29]. Hamill J observed:

3. [30]

   Mention may also be made of the discussion by Hamill J in Noufl at [5], as to matters applicable for consideration in the assessment of special or exceptional circumstances for the purpose of s 22, as follows:

Merits of the Appeal: Principles

1. [31]

   The first of the considerations discussed in the extract from Noufl in the immediately preceding paragraph attracted particular attention in the present matter. It was common ground that where the merits of the appeal were relied upon to demonstrate special or exceptional circumstances then, if that factor was relied upon in isolation the relevant test in assessing a merits of the appeal was whether the appeal was “likely to succeed”. On the other hand, where that prospects of success of the appeal was “relied” upon in conjunction with other factors to demonstrate special or exceptional circumstances, then the test to be applied in assessing those prospects was “whether the proposed grounds of appeal are arguable or enjoyed reasonable prospects of success”.

2. [32]

   That consensus reflected, in my view, the state of authority in relation to appeal bails which I outline below, namely, where the only factor relied upon to show special and exceptional circumstances is the merits of the appeal it may be necessary to establish the appeal is “likely” to succeed, but, in matters where a combination of factors is “relied” upon by a party seeking bail or a party resisting a detention application, the question becomes whether the appeal grounds are arguable or enjoyed reasonable prospects of success although the preferable formation, given the terms of s 18(1)(j) may be “reasonably arguable prospects of success” (I shall discuss below there was a dispute as to what a party relying upon grounds other than the merits of the appeal needed to establish in order to attract the latter test).

3. [33]

   The parties referred to the former test as the “higher test” and the latter as the “lower test”. I shall refer to the distinction being a “likely to succeed test” (the “higher test”) and “the arguability test” (the “lower test”), respectively.

4. [34]

   I will first explore authority establishing that dichotomy in the tests applied.

5. [35]

   In R v Williams [2018] NSWSC 994 (“Williams”), Davies J gave consideration of a detention application made under s 22 (particularly by reference to reliance upon the prospects of success of appeal as a factor in demonstrating special or exceptional circumstances for the purposes of that provision), his Honour stated (at [11]-[13]):

6. [36]

   In Brown, the Court observed (at [28]-[35]):

7. [37]

   Recently, in the decision of Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102 (“Samandi”), the CCA (per Harrison, R A Hulme and Wright JJ) held that special or exceptional circumstances were found because the applicant’s sentence appeal had some reasonable prospects of success. This, taken in combination with the fact that a substantial portion of his non-parole period would expire before his appeal was listed and his custodial status was adversely affecting his ability to properly prepare for his appeal, as he was a litigant in person.

8. [38]

   Further, I note that in R v Paul Campbell (a pseudonym) [2017] NSWSC 1844 (per Hamill J), the Court found that special or exceptional circumstances were established where a significant portion of a short sentence was likely to be served before any appeal would be heard.

9. [39]

   As earlier mentioned, there was, however, a dispute in this matter as to the application of the aforementioned principles, which turned upon whether or not the party seeking bail (or resisting a detention application), who relied upon a combination of factors including the merits of the appeal to demonstrate special and exceptional circumstances, must, in order to attract the arguability test in the assessment of the merits of an appeal first establish there is substance in the factors relied upon in addition to the merits of the appeal. I will next deal with that issue.

10. [40]

    The issue arises in the present matter because the respondent did not rely upon the prospects of success of the appeal as the only or principal factor to establish special circumstances, but rather relied upon eight factors in combination (including the merits of the appeal) to establish special or exceptional circumstances. Hence, it was contended by the respondent, that the relevant test in considering the prospects of the success of the appeal was the arguability test.

11. [41]

    The Crown contended that “mere reliance” upon a combination of factors is insufficient to establish a basis for the arguability test”. It was the Crown submission that the application of the test as to the merits of the appeal should occur after rejection (or acceptance, if such were the case) of all the other factors relied upon by the respondent to demonstrate special or exceptional circumstances. Here, if, after such consideration occurs, the only or principal factor that remains are the merits of the grounds of appeal, then the “likely to succeed” test should be applied.

12. [42]

    The consideration of that issue will require a further examination of the line of authority dealing with appeals bail where the merits of appeal are relied upon by the party seeking bail.

13. [43]

    In El-Hilli, Hamill J stated that the applicable question, where the merits of the appeal are raised in combination with other factors to demonstrate special or exceptional circumstances, was “whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success” (at [26]). Reference was made in support of that approach to Peters v The Queen (1996) 71 ALJR 309 at 310-311 and Marotta v The Queen (1999) 73 ALJR 265 at 266 (which involved the exercise of the High Court’s inherent jurisdiction but employed a test of similar stricture to that before the Court in El-Hilli); R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445 at [24]-[25] (referring to the operation of s 30AA, but the principles remain applicable to the operation of s 22). It is useful to briefly turn to those authorities.

14. [44]

    In Peters v The Queen, Dawson J granted bail in circumstances where the applicant was due to be released upon a recognisance before the hearing of the special leave application and where the “application for special leave [was] clearly not hopeless and in my view there is a reasonable prospect that it will succeed”. That decision was not made, however, on the basis of the singular consideration of the merits of the appeal. The following additional factors were also noted by his Honour before reaching his decision:

    1. (1)

       The applicant was previously granted bail by the Victorian Court of Appeal on 19 October 1995, 10 days after the commencement of his term of imprisonment, pending applications for leave to appeal to that court against both the conviction and sentence.

    2. (2)

       Those applications were heard by the Court of Appeal between 13 and 15 August 1996 and dismissed on 11 November 1996.

    3. (3)

       On 28 November 1996, the applicant filed an application for special leave to appeal to the High Court. The Court was informed that application is unlikely to be listed for hearing before 14 February 1997.

    4. (4)

       The applicant is due to be released upon a recognisance on 15 February 1997. His Honour observed, in that respect, “there can be little doubt that an application for special leave heard on 14 February 1997 would in all practical respects be futile”. Thus, “[w]ere the applicant ultimately successful in this Court, the quashing of his conviction would be the only practical benefit”.

    5. (5)

       His Honour further held: “In my view the point which the applicant wishes to raise is of the kind which may attract the grant of special leave. On the material before me I certainly do not think that the applicant's case is unarguable”.

15. [45]

    In Marotta v The Queen, Callinan J granted bail and, in doing so, observed (at [19]): “I emphasise that it is the combination of the matters to which I have referred and the facts of the cases before me that demonstrate sufficiently exceptional circumstances to warrant bail. A grant of special leave alone certainly would not do so”.

16. [46]

    It is instructive to note the “combination of matters” that informed his Honour’s assessment:

17. [47]

    It may be observed, in both Peters v The Queen and Marotta v The Queen, the High Court had regard to a combination of factors that were held to be relevant and appropriate considerations in conjunction with the merits of the appeal.

18. [48]

    In light of the submissions advanced by the parties, I also turn to principals to be distilled from Wilson v R (1994) 34 NSWLR 1. In Wilson v R, the Court of Appeal (per Kirby P, with Sheller JA agreeing) considered an application for bail in the context of an appeal yet to be lodged, which raised issues of jurisdiction and agitated the test of special or exceptional circumstances under the then s 30AA of the Bail Act 1978. In that matter, the applicant relied upon three grounds to establish special or exceptional circumstances, with the “most substantial basis upon which the application was put before the Court” being the “strong arguments which the applicant had that errors that occurred in the conduct of the trial”

19. [49]

    Upon assessing the substance of each factor advanced by the applicant, the first two considerations (unrelated to the merits of the appeal) were considered inappropriate bases or reasons and, thus, lacked merit. This left only one final consideration, concerning the prospects of success on appeal in light of the ground of appeal, which Kirby P described as “the most substantial basis upon which the application was put before the Court” (at 5).

20. [50]

    As to the prospects of success, Kirby P held: “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”: at 6. It should be noted, that consideration was not described as the primary or sole basis, but rather, in the resultant absence of other meritorious grounds, it was the most “substantial”.

21. [51]

    Thus, notwithstanding the original application brought by the applicant contained three factors, in light if his Honour’s findings as to the merit of each ground, he applied the “likely to succeed” test to the prospects of success ground. That approach was informed by the authority of R v Waters, as his Honour continued (at 6):

22. [52]

    In R v Velevski, Barr J (with whom Spigelman CJ and Hulme J agreed) considered the judgment of Callinan J in Marotta and made the following observations with respect to the application of the arguability test at [23]-[24]:

23. [53]

    In R v Velevski, Barr J accepted that the following factors, with reference to the factors as listed in Marotta v The Queen, were present on the application for bail before the Court (at [25]-[33]):

    1. (1)

       special leave had been granted, indicating the appeal “must be regarded as having some prospects of success”;

    2. (2)

       an arguable point had been raised which might have real substance and might justify a retrial;

    3. (3)

       pending trial the applicants were granted bail;

    4. (4)

       in the normal course the cases would not be heard for some months and the Court might be expected to reserve its decision after argument;

    5. (5)

       the tenth point was that the applicants, if they made out their case, would not have to contend with the proviso;

    6. (6)

       there was a carefully reasoned dissenting judgment in the Court of Criminal Appeal, namely, “the careful and detailed judgment of Kirby J” in Regina v Velevski [1999] NSWCCA 96 at [184]-[351];

    7. (7)

       there was no suggestion that the applicant was likely to abscond or offend whilst on bail; and

    8. (8)

       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.

24. [54]

    Notwithstanding and accepting “the strength of all the matters put in favour of the application”, the Court held the applicant had not established special or exceptional circumstances justifying a grant of bail pending the applicant’s leave to the High Court of Australia. For present purposes, it is relevant to observe that Barr J applied the arguability test and in circumstances where the applicant had advanced relevant considerations of substance on the application.

25. [55]

    In Petroulias v R [2010] NSWCCA 95 (“Petroulias”), the judgment of Barr AJ (with whom Hodgson and Rothman JJ agreed) is instructive as to the test to be undertaken by the Court with respect to special or exceptional circumstances. First, at the outset, his Honour identified the combination of factors advanced by the applicant as establishing special or exceptional circumstances, namely (at [15]):

26. [56]

    Next, his Honour turned to the contentions advanced by the applicant with respect to each basis, save for the prospects of success, and intimated that the contentions were either weak or not established by the material that informed his assessment of the same. Following that assessment, prior to considering the prospects of success on appeal, Barr AJ observed (at [34]):

27. [57]

    That observation, when read in light of Barr AJ’s consideration of four of the five bases relied upon by the applicant, indicates his reasoning for applying the “likely to succeed” test to the fifth factor relied upon by the applicant, namely, the prospects of success on appeal. As to that factor, Barr AJ held: “They do not strike me individually or collectively as rendering the applicant most likely to succeed” (at [42]).

28. [58]

    For completeness, the conclusion of the Barr AJ appears below (at [55]-[56]):

29. [59]

    The approach of the Barr AJ in Petroulias, in that respect, mirrors that of Kirby P in Wilson v R. Notwithstanding the applicant’s reliance upon five bases in support of a finding of special or exceptional circumstances, Barr AJ did not apply the arguability test. First, his Honour considered the arguments advanced in addition to the prospects of success of appeal and reached a view, following a collective assessment, as to whether the contentions advanced by the applicant were of substance on the basis of the material before the Court. Secondly, in light of those findings, Barr AJ reached the view that the principal factor on the application advanced by the applicant concerned the prospects of success. Hence, only after that two-tiered consideration, the “likely to succeed” test was applied.

30. [60]

    Returning the dispute in the present application, the Crown advanced three submissions as the appropriate application of the two tier test.

31. [61]

    First, the arguability test is not applied by the mere reliance upon a combination of factors being advanced by the applicant. The lower test is “enlivened” upon the Court’s satisfaction as to the establishment of at least one of the bases relied upon by the applicant in addition to the prospects of success on appeal. In the absence of such a finding, notwithstanding the reliance upon a combination of factors, the prospects of the appeal are rendered essentially the only or principal factor to “demonstrate” special or exceptional circumstances. Hence, the test to be applied to the assessment of the merits of the appeal is that they are “likely to succeed”.

32. [62]

    Secondly, in that light, the Crown submitted: the lower test as to the merit of the appeal is “appropriately reserved for matters where the Court is satisfied that there are a combination of factors which establish special or exceptional circumstances”. Reliance, in that respect, was placed upon the judgment of El-Hilli at [13] and [26]; Wilson v R; and Petroulias at [34].

33. [63]

    Thirdly, and accordingly, the application of the test as to the merits of the appeal should occur after rejection (or acceptance if such were the case) of all other factors relied upon by the respondent to demonstrate special or exceptional circumstances.

34. [64]

    In reply, the respondent contended:

35. [65]

    As to the Crown’s reliance upon Wilson v R, the respondent contended there has been significant development in the approach taken by the courts since. The crux of that development is such that where a combination of factors are relied upon by a person, the appropriate test to apply is that the appeal is arguable or enjoys reasonable prospects of success.

36. [66]

    As to the authorities that refer to the test to be applied, it was submitted by the respondent that they refer to the strength of the appeal being “advanced”, “relied upon”, “put forward” as part of a combination of factors, rather than “established” or “determined” to be part of a combination of factors. Reference, in that respect, was made to El Khouli at [21]-[26] and the language used, therein, in a discussion of authority. Reliance was also placed on the following passages of Brown at [28] and [33]:

37. [67]

    Further, it was submitted, the only way in which the appropriate test as to merits on the appeal may be determined is by reference to what is relied upon by the person seeking bail.

38. [68]

    The respondent contended that the Crown’s submissions invite the Court to:

39. [69]

    If that summary of the Crown’s contention was accepted as accurate, it was submitted that such an approach is erroneous for the following reasons:

    1. (1)

       In order to be satisfied as to “whether special and exceptional circumstances exist by virtue of a combination of factors, or the sole factor of the strength of the appeal”, the Court would need to embark upon an assessment of the merits of the appeal in accordance with one of the two applicable tests.

    2. (2)

       The Court cannot reach a conclusion with respect to “whether special and exceptional circumstances exist by virtue of a combination of factors, or the sole factor of the strength of the appeal”, without first applying the appropriate test as to merit in the appeal.

40. [70]

    I interpose to observe that submission must be rejected as it has not accurately captured or responded to the Crown’s contention, namely, “the application of the test as to the merits of the appeal should occur after rejection (or acceptance if such were the case) of all other factors relied upon by the respondent to demonstrate special or exceptional circumstances”. The consideration as to the prospect of success of the appeal is a subsequent step.

41. [71]

    As to the arguability test being “appropriately reserved” for when the Court is satisfied that there are a combination of factors which establish special or exceptional circumstances, it was submitted by the respondent, that there is no basis in authority for restricting the Court’s determination in that way. On the contrary, the respondent submitted that the application of the “likely to succeed” test is appropriately reserved for matters where the merits of the appeal are advanced as the only factor in establishing special or exceptional circumstances. The establishment of special or exceptional circumstances in any case, in and of itself, is already a high threshold for an offender to meet.

Conclusion: Disputed Question – Test to be applied in Assessing Merits of the Appeal Ground

1. [72]

   Whilst the language employed in a number of the authorities used expressions such as “advanced”, “relied upon” or “put forward” to introduce the reliance upon the prospects of the appeal as part of a combination of factors, a careful analysis of the line of authority referred to above ultimately supports the position contended for by the Crown in that respect.

2. [73]

   As illustrated in the above discussion of the authorities, it is clear that, when the factors relied upon in conjunction with the prospects of the appeal to demonstrate special or exceptional circumstances for the purposes of s 22 of the Bail Act are found to have little weight or lack substance, the arguability test is not enlivened with respect to Court’s assessment of the merits of the appeal. To consider the language employed in the judgments concerning appeals bail devoid from broader context in which each application is considered, provides a false impression of the tests applied in those matters. Generally speaking, the authorities demonstrate that where there is one other factor relied upon in combination with the prospects of success of the appeal, which factor is also found to have merit or substance to demonstrate special or exceptional circumstances, then the arguability test should be applied to the consideration of the merits of the appeal as part of the overall determination as to whether special or exceptional circumstances exist.

3. [74]

   Further, it may be observed, a strict application of the respondent’s position would produce the odd result that the Court’s determination as to whether or not the arguability test was to be applied was determined by the mere reliance by a party upon additional or other factors, in conjunction with the prospects of success on appeal, irrespective of their substance.

4. [75]

   Hence, I accept, with respect, the conclusion reached by Hamill J in El-Hilli at [26] and reject the contentions of the respondent in this respect.

FACTORS RELIED UPON TO ESTABLISH SPECIAL OR EXCEPTIONAL CIRCUMSTANCES

1. [76]

   The respondent relied on the following matters, in combination with its contentions vis-à-vis the prospects of success on appeal, to establish special or exceptional circumstances:

   1. (1)

      the respondent’s demonstrated compliance with bail and attendance at court when required, even after conviction, with no evidence whatsoever of there being a risk of flight;

   2. (2)

      the respondent’s demonstrated strength of his community ties;

   3. (3)

      the respondent’s limited record;

   4. (4)

      the respondent’s lack of risk as it relates to any further offending or compromising any prospective trial;

   5. (5)

      the strict bail conditions already in place;

   6. (6)

      the respondent’s youth; and

   7. (7)

      the time spent in custody before determination of the appeal as compared to the non-parole period imposed.

2. [77]

   Consistently with the aforementioned principles, prior to turning to my assessment as to the merits of the appeal, I will consider each of the factors relied upon by the respondent, after a brief summary of the Crown’s general submission on those factors.

3. [78]

   With the exception of the respondent’s youth, the Crown advanced a global submission that the balance of the considerations relied upon by the respondent were properly characterised as unacceptable risk submissions and did not assist the respondent in demonstrating special or exceptional circumstances. The Crown contended that in and of themselves, those considerations would never amount to special or exceptional circumstances or finding that would contribute to a ground of special or exceptional circumstances in the absence of some other feature or factor to combine them with.

4. [79]

   The Crown contended, with respect to the present application, that the principal factor relied upon to demonstrate special or exceptional circumstances was the prospects of success on appeal. As such submissions were primarily advanced with respect to the prospects of success, with the Crown contending that the applicable test is “likely to succeed” and that, on that basis, the respondent could not establish special or exceptional circumstances.

5. [80]

   The factors relied upon by the respondent to demonstrate special or exceptional circumstances are reviewed below seriatim, although this approach is conducted for convenience of analysis, the Court being mindful that the respondent relied upon these factors in combination with each other, including arguments as to the merits of the appeal.

The respondent’s demonstrated compliance with bail and attendance at court when required, even after conviction, with no evidence whatsoever of there being a risk of flight

1. [81]

   The respondent was on bail:

   1. (1)

      before the trial;

   2. (2)

      during the trial;

   3. (3)

      after the trial, before sentence, for a period of approximately eight weeks;

   4. (4)

      since the date of sentence, being a period of approximately four weeks; and

   5. (5)

      since the date of the detention application being filed in this Court, being a period of approximately three weeks as at the filing of the respondent’s submissions on this application (a portion of the aforementioned four week period since sentence).

2. [82]

   Counsel for the respondent submitted:

3. [83]

   As to the respondent’s reliance upon compliance, the Crown contended there is nothing special or exceptional about compliance with the law. The high likelihood that the applicant will answer bail has regularly been assumed but found not to be sufficient to constitute special or exceptional circumstances; reference, in support of that submission, was made to the observations of Basten JA in Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103 (“Cassaniti”) at [19].

4. [84]

   The respondent contended that compliance with conditions of bail “cannot be dismissed as simply an expectation of compliance with the law”. Reference, in that respect, was made to a judgment of Garling J in R v Vaziri [2016] NSWSC 1283 at [52]. In that matter, Garling J observed that one of the matters considered part of special and exceptional circumstances in that case was:

5. [85]

   The respondent submitted that this factor “is only strengthened in favour of the respondent, given the timeline of events incentivising flight”.

6. [86]

   Whilst the respondent has established a firm basis to demonstrate that the respondent is likely to comply with bail, that does not overcome the consideration alluded to by Basten JA in Cassaniti by his Honour’s reliance upon the judgment of Brennan J in Chamberlain v The Queen (No 1) (1983) 153 CLR 514 as follows (at [19]):

7. [87]

   A similar consideration arose in R v Thomas (Unreported, Supreme Court of NSW, Campbell J, 4 June 2014), Campbell J made the following observation:

8. [88]

   That is not to say that the fact of the respondent having been previously granted bail is not relevant to the consideration of whether there are special or exceptional circumstances in the case of appeals bail.

9. [89]

   The decisions in both Marotta v The Queen and R v Velevski arose in the context of an application for appeals bail pending appeal to the High Court. In both judgments, the circumstances of the applicants having been previously granted bail “pending trial” was relied upon by the applicant as a factor in determining whether special or exceptional circumstances had been established. It may be noted, in R v Velevski, Barr J simply confirmed, in the course of his consideration of the application, that such a factor existed; his Honour did not suggest any weight had been given to it, whereas in Marotta v The Queen, Callinan J expressly identified the factor as one of the “reasons for my decision” (at [18]), but emphasised that it was “the combination which I have referred and the facts of the cases before me that demonstrate sufficiently exceptional circumstances to warrant bail” (at [19]). The emphasis upon the collective effect of the factors referred to by Callinan J, reflects the necessary caution to be taken, as mentioned above, when considering the individual weight to be given to such factors as opposed the combined effect. Nonetheless, when read in conjunction with the High Court’s observations in Chamberlain v The Queen (No 1), in and of itself, the previous grant of bail pending appeal would not normally attract great weight.

10. [90]

    In the present matter, the fact of the applicant having been previously granted bail is of some, but not substantial, weight. The significance of this factor will ultimately have to await collective assessment of the factors found to be of substance. As to the issue of compliance with bail, consistent with authority, is given very little weight.

The respondent’s demonstrated strength of his community ties

1. [91]

   The respondent resides with his parents and grandparents, who are supportive and pro-social. The respondent has the support of other members of his family who provided letters to the Court in his sentencing proceedings. He has the strong support of his mother, who gave sworn evidence in the sentence proceedings and whose evidence was tested in cross-examination.

2. [92]

   As this consideration falls squarely within the parameters of the assessment under s 18, I accept the submission advanced by the Solicitor Advocate for the Crown, Ms A Weir, that this factor is of little weight to the Court’s determination under s 22. I accept the observations of Hamill J in El-Hilli at [28]:

The respondent’s limited record

1. [93]

   The respondent has a limited record and has never served a custodial sentence. The respondent’s record consists only of two driving matters. The respondent submitted that the Court would accept that he is not a serial offender, nor the type of offender who would pose any risk to the community while on bail pending appeal.

2. [94]

   This factor attracts similar observations as the previous factor, save that the fact the applicant faces his first time in custody is a matter which may contribute to any weight attached to the respondent’s youth in considering whether special or exceptional circumstances have been established.

The respondent’s lack of risk as it relates to any further offending or compromising any prospective trial

1. [95]

   There is no evidence that the respondent is a risk of further offending or compromising any prospective trial, in terms of disposing of or tainting evidence. The respondent has been assessed as a low risk of re-offending by psychologist Clair Baker.

2. [96]

   As was observed by Hamill J in El-Hilli, with respect to the considerations under s 18, which are brought in to s 22 by subs (3), “those factors are subject to sub-s (1), that is, the requirement for special or exceptional circumstances” at [28]. In the circumstances of the present matter, in and of itself this factor attracts little weight but must await further consideration in light of the combination of factors relied upon by the respondent.

The strict bail conditions already in place

1. [97]

   The respondent’s current conditions are as follows:

   1. (1)

      To be of good behaviour;

   2. (2)

      To reside at his home address (102 Wentworth Ave, Pagewood NSW 2035);

   3. (3)

      To report to Mascot Police Station daily between 6am-10pm;

   4. (4)

      To comply with a curfew from 10pm-6am;

   5. (5)

      An enforcement condition: to present himself at the front door of his premises to confirm compliance with his curfew;

   6. (6)

      To not have contact, including via a third party, with the complainant;

   7. (7)

      To surrender his passport (now surrendered);

   8. (8)

      To not approach any international point of departure; and

   9. (9)

      Prosecute his appeal by cooperating with his legal representatives.

2. [98]

   It was submitted by the respondent that the bail proposal for which the applicant is subject to is “comprehensive and strict”. Whilst such a submission will have some weight with respect to the question of risk, in the context of the Court’s present determination under s 22, the stringency of the current bail conditions carries little weight.

The respondent’s youth and the time spent in custody before determination of the appeal as compared to the non-parole period imposed

1. [99]

   In light of the way in which submissions were advanced by the respondent, in this respect, I shall consider the respondent’s youth together with the time spent in custody before determination of the appeal (when compared to the non-parole period imposed) together.

2. [100]

   The respondent is relatively young, namely, 21 years old. Counsel for the respondent contended that the fact of his youth “is relevant insofar as the impact of any incarceration upon him before the appeal is heard”. That contention was supported by the following submissions:

   1. (1)

      Should the appeal be successful and the respondent ultimately acquitted of the offences, a man of relatively youth and inexperience would have been exposed to a custodial setting, including exposure to criminal inmates.

   2. (2)

      The impact of that exposure upon a young man is irremediable on appeal, even in the case of an appeal determined in his favour.

   3. (3)

      The respondent accepted the applicant’s submission that there are dates available for hearing in May 2021. It follows, however, that should the respondent’s bail be revoked, the respondent would likely spend approximately 6-7 months of his 18 month non-parole period in custody, being one-third of the non-parole period.

3. [101]

   The Crown submitted that serving a period of 6 months from a non-parole period of 18 months does not equate with a finding that the non-parole period would be “substantially expired” as at the time of the hearing of the appeal consistently with authorities in which that factor was taken into account in considering whether special or exceptional circumstances had been established. Reference, in that respect, was made to El-Hilli and Samandi.

4. [102]

   In El-Hilli, Hamill J provided the following summary of authorities addressing the consideration of “substantial” in the context of the amount of sentence served:

5. [103]

   In El-Hilli, Hamill J held (at [54]):

6. [104]

   Further, in the context of ss 17 and 22(3), he observed (at [59(h)]):

7. [105]

   Hamill J held (at [61]):

8. [106]

   In Samandi, the Court, relevantly, observed (at [33]-[34]):

9. [107]

   I accept the submission advanced by the Crown that the relevant consideration in this respect is whether the non-parole period to which the respondent was sentenced and is now the subject of an appeal will have expired or substantially expired before the hearing of the appeal.

10. [108]

    During oral submissions, the respondent properly conceded (having regard to that stated principle) that the timing of the appeal and delay therein were not in and of themselves exceptional. It was conceded that a delay amounting to one-third of his non-parole is not the majority of the non-parole period imposed upon him. However, counsel for the respondent contended that the significance of the period in custody is “amplified by virtue of his youth and also by virtue of his being someone who has never been in custody before”. In that light, the time spent in custody, it was contended, is substantial.

11. [109]

    It was agreed that the appeal brought by the respondent would most likely be heard in May 2021. By that time, the respondent will have spent, in the absence of bail, 6 months in custody pending the hearing of his appeal. At the time of this judgment, the respondent has spent no time in custody, having been granted bail pending appeal immediately following the imposition of sentence on 9 October 2020.

12. [110]

    I do not consider those circumstances constitute special or exceptional circumstances either in terms of the period of time the respondent will spend in custody until his appeal or in consequence of the period of delay from the hearing of the detention application and the hearing of the appeal. Counsel for the respondent contended that the fact the respondent was young and had not been in custody before added an additional dimension to the consideration to the factor of his period in custody until the hearing of his appeal. However, neither the respondent’s relative youth or the fact of his first incarceration result in the period of his custody prior to his appeal hearing being substantial or significant as described in the above authorities.

Conclusion: Factors other than the Prospects of the Appeal

1. [111]

   Overall, I do not consider that the combination of the period in custody or delay before the appeal hearing, the youth of the respondent and this first occasion of his imprisonment properly result in a conclusion that the respondent has demonstrated either singularly or by the combination of those factors (or all factors relied upon by the respondent other than the prospects of success of the appeal), the existence of special or exceptional circumstances.

2. [112]

   That conclusion is not diminished by virtue of the fact the respondent has received bail until the date of this judgment.

3. [113]

   That is not the end of the Court’s assessment as to whether special or exceptional circumstances have been established as the merits of the appeal is a factor substantially relied upon by the respondent in combination with the above factors. That conclusion does have implications for the assessment of that factor.

ASSESSMENT OF MERIT OF PROPOSED APPEAL

1. [114]

   In light of the Court’s findings with respect to the other factors brought by the respondent, in turning to consider the merit of the proposed appeal, the relevant consideration in the evaluation of the application is whether the appeal is likely to succeed. The respondent does not need to establish that the appeal will inevitably succeed: El-Hilli at [24].

2. [115]

   In Obeid v R (No 2) [2016] NSWCCA 321 at [17], the Court of Criminal Appeal (per Bathurst CJ, Hoeben CJ at CL and R A Hulme J) observed that it is inappropriate for the Court to say much in detail about an offender’s prospects of success on appeal when determining a bail release application when the hearing of such appeal is pending. This is because the argument on such an application can never be as fully developed as it will be, and the Court is confined to reaching only a broad overall view of an offender’s apparent prospects. See also R v Ambury [2017] NSWCCA 115 at [36].

3. [116]

   In R v Paul Campbell (a pseudonym), Hamill J observed that it is a notoriously difficult thing for a judge sitting in the bail court to make a determination as to the merit of a proposed appeal, noting for one that the Court will not have the benefit of submissions that will be made on behalf of the Crown.

4. [117]

   Upon the grounds of appeal set out in the submissions of the respondent (noting an appeal is yet to be filed), in order for the respondent to succeed on his conviction appeal, he must establish either:

   1. (1)

      the verdict was unreasonable; or

   2. (2)

      the directions in respect of reasonable grounds for belief in consent gave rise to a miscarriage of justice.

5. [118]

   In support of its written submissions as to the merits of the proposed appeal, the respondent provided the Court with “Draft Submissions on Behalf of the Appellant” dated 4 November 2020, prepared by counsel for the respondent on appeal, Ms April Francis (“the draft submissions”). Reference will be made to the draft submissions throughout the following assessment of the merits of the appeal. Draft submissions on appeal for the Crown were not available.

6. [119]

   Prior to turning to the submissions of the parties with respect to the prospects of success of the grounds of appeal, I will first set out the nature of the offending for which the respondent was convicted as well as the elements of the offence.

The Conviction

1. [120]

   As mentioned above, on 13 August 2020, the respondent was convicted on indictment in the District Court of New South Wales by a jury of two counts of sexual intercourse without consent, pursuant to s 61I of the Crimes Act. Both counts were in the same terms, which appear below:

2. [121]

   The Crown case was summarised by the respondent in the draft submissions. On the limited material before the Court, and in the absence of dispute as to the stated facts (except as particularly dealt with in the Crown contentions), I will proceed upon the basis of those facts in my considerations. The factual summary provided by the respondent appears below:

3. [122]

   The following facts were identified as “common ground” between the parties:

   1. (1)

      the respondent and the complainant had sexual intercourse on 16 May 2019;

   2. (2)

      that sexual intercourse consisted of digital penetration (count 1) and penile penetration (count 2);

   3. (3)

      the sexual intercourse occurred at a park nearby to the complainant’s house in Waterloo;

   4. (4)

      there was conversation between the complainant and the respondent at the park, prior to the intercourse;

   5. (5)

      the complainant and the respondent were in the park for approximately 30 minutes;

   6. (6)

      the complainant, at some point during that conversation prior to the intercourse, said the word “let’s fuck” to the respondent;

   7. (7)

      the complainant made immediate complaint via text message to friends and family members, including Angela Curry, Isabella Pinto and Chanelle Hona, and further complaint to others;

   8. (8)

      the complainant made complaint to police on 22 May 2019; and

   9. (9)

      on 23 May 2019, the complainant engaged in a recorded phone call with the offender, the contents of which were in evidence.

The Elements of the Offence

1. [123]

   Section 61I provides:

2. [124]

   The elements of the offence, which the Crown was required to prove beyond reasonable doubt at trial, may be simply stated:

   1. (1)

      that, at the time and place alleged, the accused had sexual intercourse with the complainant; and

   2. (2)

      the sexual intercourse occurred without the complainant’s consent; and

   3. (3)

      the accused knew or was reckless to the lack of consent of the complainant to the sexual intercourse.

3. [125]

   Sexual intercourse is defined by s 61HA of the Crimes Act:

4. [126]

   As to “sexual intercourse”, the Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused, and it is irrelevant that the complainant failed to appreciate that the act was morally or criminally wrong: R v Beserick (1993) 30 NSWLR 510. However, the complainant will not consent to the act if the complainant lacks the capacity or opportunity to consent, the consent is obtained through unlawful detention or threats of force or terror or because of a mistaken belief as to the identity of the other person, that the complainant is married to the other person, or that the sexual intercourse is for a medical or hygienic purpose: s 61HA of the Crimes Act. The nature of an offence under the section and the manner in which the Crown can prove the various elements was considered in R v XHR [2012] NSWCCA 247.

5. [127]

   Consent in relation to sexual offences is addressed by s 61HE of the Crimes Act. Although the accused must know that the complainant is not consenting to sexual intercourse it is sufficient if he or she is reckless as to that consent or he or she has no reasonable grounds for believing that the complainant consents. For the purposes of an offence under s 61I, the accused is reckless where he or she has intercourse not caring whether the complainant consents or not: Murray v R (1987) 11 NSWLR 12. It is sufficient if the accused is aware that the complainant might not be consenting or possibly was not consenting: R v Zorad [1979] 2 NSWLR 764; R v Hemsley (1988) 36 A Crim R 334.

6. [128]

   A conscious advertence to the possibility of non-consent is not necessary on the part of the accused. If the accused fails to advert at all to the question of consent, treating it as an irrelevant factor, this would amount either to knowledge or recklessness of the lack of consent: R v Henning (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990); R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660. This meaning of recklessness in relation to lack of consent was approved in Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80. The trial judge must make it clear to the jury that the question of recklessness is not determined by an objective standard but that the jury must focus on the mind of the accused: R v O'Meagher (1997) 101 A Crim R 196.

7. [129]

   I now turn to the submissions advanced by the parties.

First Ground of Appeal: The verdict was unreasonable

1. [130]

   Counsel for the respondent submitted that the case on appeal will be that, in light of the objective evidence at trial, a reasonable doubt remained. As mentioned above, this submission was supported by reference to the draft submissions, which formed part of the material relied upon by the respondent

2. [131]

   As to the evidence that would support a finding there existed a reasonable doubt about whether the respondent had no reasonable grounds for believing that the complainant consented to the sexual intercourse, the respondent relied upon the following evidence in conjunction with the evidence of the respondent at trial:

   1. (1)

      The evidence adduced in cross-examination by which the complainant’s accepted that she had told the respondent “let’s fuck” (“the phrase”), albeit without being able to account for when she said the phrase in the context of sexual intercourse.

   2. (2)

      The evidence of the controlled call between the respondent and the complainant on 23 May 2019.

   3. (3)

      The evidence of the respondent’s conduct after leaving the park and returning to his car, namely, the accounts of George Mandilis and Julien Panagopoulos, friends of the respondent.

   4. (4)

      As to the evidence of the complaint, including accounts by the complainant as well as her friend and family, it was contended that such evidence “did not dispel” the evidence of a rational basis for a belief in consent on the respondent’s part.

3. [132]

   During the examination-in-chief of complainant, the respondent submitted that the complainant gave an account that “she was at all times communicating with the appellant in such a way as to make it clear she had no interest in any ongoing affection with him; their relationship was over and their contact during this exchange was unfriendly”. That account, it was contended, is “irreconcilable” with the evidence of the phrase as adduced during cross-examination.

4. [133]

   The draft submissions also highlighted the following aspects of the respondent’s evidence as to the circumstances surrounding the phrase, as follows:

5. [134]

   Whilst it was accepted that the complainant could not account for when she said the phrase in the context of the conversation that preceded the intercourse, it was submitted, “she accepted that she had come to sit on his lap, because the appellant put her there (apparently without her opposition) and the appellant was at one point kissing her neck, although she never kissed him back and said that she was trying to avoid the kisses”.

6. [135]

   By the draft written submissions, the respondent further contended:

7. [136]

   The respondent contended that the controlled call was “entirely corroborative” of the respondent’s case on appeal, namely: he did not think the complainant was joking when she said the phrase because she uttered the phrase whilst she was sitting on his lap facing him. An extract from part of the call appears below:

8. [137]

   The followings submissions were advanced on behalf of the respondent, with respect to the controlled call, in the draft submissions:

9. [138]

   It was also submitted that the evidence of the respondent at the trial was consistent with his account of himself in the controlled call, namely, he was aware that the complainant had said “no” and “stop”, however, he had also heard her say “let’s fuck” and believed they were doing what they had done in the past, as was confirmed by the complainant.

10. [139]

    The draft submissions also refer to evidence of the respondent with respect to the controlled call, albeit a part not extracted in the submissions:

11. [140]

    The respondent’s activity and behaviour after leaving the park was consistent with a person who believed he had engaged in consensual sexual intercourse. The respondent returned to his car and met his friends Messrs Mandilis and Panagopoulos, both of whom had been with the respondent that afternoon and evening including when the respondent dropped off the gift, and returned to retrieve it. As mentioned above, both Messrs Mandilis and Panagopoulos were waiting for him in the car whilst the respondent was with the complainant in the park.

12. [141]

    The respondent relied upon the summary of the evidence in the draft submissions, which appears below:

13. [142]

    In the draft submissions, the following was further advanced in support of ground one:

14. [143]

    With reliance upon the aspects of the evidence set out above, the following submissions were advanced, on behalf of the respondent via the draft submissions, as supporting a finding of unreasonable verdict:

    1. (1)

       Notwithstanding the advantage that the jury enjoyed in assessing questions of credibility, in light of the objective aspects of the evidence, making due allowance for the advantage, the reasonable doubt remained.

    2. (2)

       It was quintessentially a task for the jury to determine whether they accepted the complainant but that task did not involve merely being persuaded by her account. The jury was required to assess her evidence in light of the entirety of the evidence adduced, and not adduced, at trial. If the jury used the benefit of hearing the complainant, and having being persuaded by her, as a basis for resolving that doubt, it is contended that the jury misused its advantage in that respect.

    3. (3)

       The evidence, upon the record itself, contains inadequacies tainting the probative force of the Crown case in such a way as to give rise to the significant possibility that an innocent person has been convicted. This is particularly in light of the evidence from both the complainant and the respondent that the complainant said the phrase shortly before intercourse occurred.

    4. (4)

       When assessed in the light of all of the evidence, there must be serious doubts attaching to the respondent having no reasonable grounds, by that it ought be understood, a doubt attaching to an absence of rational basis for a belief in consent. Those doubts are not resolved by the other evidence at trial. The jury should have entertained reasonable doubts on all counts.

    5. (5)

       This reasonable doubt was reinforced by the evidence of the appellant’s good character, which was not rebutted by the Crown.

    6. (6)

       The guarded nature of the complaint’s account of the nature of communications with the appellant ostensibly impugned her credibility. The generalities of the complainant’s account in relation to precisely what transpired before intercourse was not capable of eliminating the existence of rational reasons for a belief in consent. This was reinforced by the evidence of the respondent’s behaviour immediately after the event.

15. [144]

    In written submissions prepared for the present application, counsel for the respondent advanced the following submissions:

    1. (1)

       The evidence, upon the record itself, “contains inadequacies tainting the probative force of the Crown case in such a way as to give rise to the significant possibility that an innocent person has been convicted”.

    2. (2)

       This was not a case as simple as requiring the acceptance of the complainant’s version and rejection of the respondent’s version, as is contended by the Crown. As the matter required evaluation of consent in accordance with s 61HE(3)(c) of the Crimes Act, and given the evidence on the Crown’s own case regarding what was said by the complainant prior to the offence occurring, an appellate court’s scrutiny of the evidence for the purpose of this ground would require greater analysis than simply determining which version was accepted or rejected.

    3. (3)

       The respondent submitted that scrutiny of the evidence in this case would lead to the conclusion that the verdict was unreasonable in all the circumstances.

16. [145]

    Thus, it was contended that in all of the circumstances, the verdict was unreasonable and a reasonable doubt remained.

17. [146]

    During the course of oral submissions, counsel for the respondent responded to the Crown’s reliance upon Pell v The Queen [2020] HCA 12 (“Pell”). The following submissions were advanced, distinguishing Pell from the present matter:

    1. (1)

       In the case of Pell, the accused did not give evidence. Therefore, the evaluation of the unreasonability of the verdict came only from the material in the Crown case.

    2. (2)

       The most notable difference, it was contended, was the existence of “a question of whether it happened or not”. In Pell, it was submitted, the relevant issue was whether what the complainant said occurred or not. In this case, it was different because of what was required to be established under s 61HE(3) with respect to consent, namely, “not just actual knowledge as to lack of consent, but the alternative in the Crown case which was that there were no reasonable grounds for believing that the complainant consented”. Thus, it was a different evaluative exercise the tribunal of fact had to undertake than in Pell.

    3. (3)

       Further, the drafted grounds of appeal deal with how the inconsistencies that arise in the Crown case alone were sufficient for there to be this ground advanced, that is, that the verdict was unreasonable. Reference, in this respect, was made to the following: “The inconsistencies in the evidence given by the complainant but also the inconsistencies that arise as a result of evaluating the evidence of those witnesses who saw the respondent immediately after the offence”.

18. [147]

    In terms of the first ground of appeal, the Crown contended that the prospects of success are “not high” and advanced the following submissions.

19. [148]

    First, it was open for the jury to accept the version provided by the complainant during her evidence in the trial. If the evidence of the complainant was accepted beyond reasonable doubt by the jury, as it must have been, it was then open for the jury to return verdicts of guilty in relation to counts 1 and 2 on the indictment.

20. [149]

    Secondly, the Crown case against the offender was strong. That submissions was supported with reference to the following:

    1. (1)

       The complainant made immediate complaint about the assault to various members of her family and friends.

    2. (2)

       It was common ground between the parties that sexual intercourse took place on the night by way of digital and penile penetration.

    3. (3)

       It was common ground between the parties that the complainant and respondent were not “dating” one another at the time, that things were “different” between them and that the offender was aware of this prior to the commission of the assaults upon the complainant.

21. [150]

    Thirdly, s 22 of the Bail Act is indicative of the legislative intent that a verdict of a jury is presumptively correct, and final. The presumption of innocence, which operated in his favour before the jury returned its verdict, has been rebutted by that verdict.

22. [151]

    Fourthly, the jury are the constitutional judges of the facts. That is their function alone. There is an assumption that the jury have assessed the complainant’s evidence as credible and reliable and a presumption that their verdicts are correct in the absence of other objective evidence to the contrary: Pell at [39].

23. [152]

    In Pell, the High Court considered that the unchallenged evidence of the opportunity witnesses was inconsistent with the complainant’s account. With respect to each of the offender’s convictions, there was, consistently with the words used in Chidiac v The Queen (1991) 171 CLR 432 at 444 and M v The Queen (1994) 181 CLR 487 at 494, “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”. The Crown submitted that, in the present application, there is no such objective evidence which is inconsistent with the complainant’s account.

24. [153]

    Whilst not advanced as a submission, within in the Crown Bundle on the present application, the Crown produced copies of the Crown material on sentence, which included a document entitled “Fact Finding on Sentence”. That document is set out in its entirety below:

Consideration: Merits of Ground 1 vis-à-vis Appeals Bail

1. [154]

   A ground or appeal that a jury’s verdict is unreasonable or cannot be supported by the evidence involves questions of fact and the applicant must, therefore, obtain leave to appeal (see s 5(1) of the Criminal Appeal Act 1912 (NSW)).

2. [155]

   The principles to apply where it is contended a verdict is unreasonable or unavailable on the evidence (including where inconsistent verdicts are asserted) were recently re-stated in Stanford v R [2018] NSWCCA 249 at [49]-[52] (per Simpson JA with whom Walton and Wilson JJ agreed) as follows:

3. [156]

   Reference should also be made to the High Court of Australia in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”) (per curiam) as follows (at [65]-[66]):

4. [157]

   As the High Court observed in Pell, albeit in the context of the function of the Court of Criminal of Appeal, in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, the Court is to proceed “upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable”: Pell at [39].

5. [158]

   The respondent sought to distinguish the evaluative exercise undertaken in Pell from that which will be under taken with respect to the pending appeal. Whilst it is true that the issues relating to unreasonability in Pell are different to that raised in the draft submissions, namely, the relevant issue in Pell was whether what the complainant said occurred or not, which brought in issues of credibility of the complainant’s evidence, whereas the issue underpinning this first ground turns on whether there existed no reasonable grounds for believing that the complainant consented, for which the respondent relies upon “inconsistencies” within the Crown case or countervailing evidence, which included the evidence of the complainant, those differences do not ultimately dilute the applicability of the principles set out in Pell and relied upon by the Crown.

6. [159]

   It is useful to set out the specific context in which the relevant principles arise in Pell (at [37]-[39]):

7. [160]

   An unreasonable verdict ground is to be determined by the CCA upon a consideration of the whole of the evidence in the case. As Davies J stated, in Williams at [24]), “[w]hether a verdict is unreasonable is a matter to be determined by the Court of Criminal Appeal on a consideration of the whole of the evidence in the case. It is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal”.

8. [161]

   His Honour continued by discussing the difficulty of assessing this ground without recourse to the full record of the trial and made the following observations (at [25]):

9. [162]

   I also note the observations of Hamill J in El-Hilli (at [34]), however imperfect a foundation for an assessment of the merits of the appeal, an assessment must be made of the grounds in order to properly deal with the applicant’s reliance on the merits of the appeal to demonstrate special or exceptional circumstances, albeit one which does not pre-judge the argument the applicant intends to advance to the Court of Criminal Appeal (see Wilson at [6]) or purport to constitute something in the nature of the hearing of the appeal proper.

10. [163]

    In the present matter, the Court does not have the benefit of the full record of the trial or the benefit of hearing the evidence given by witnesses at the trial. The jury had that benefit and reached the conclusion it did, namely, two convictions. The Court has only a selection of extracts from the transcript relating to the closing addresses and summing up, as well as a summary form of aspects or partial extracts of the evidence set out in the bundles provided by the parties. This Court does not have the benefit of reading and/or hearing the complete evidence of the complainant in the context of examination-in-chief and cross-examination, the entirety of the controlled call and the evidence of all other witnesses called in the proceedings.

11. [164]

    On the limited material before the Court, I do not consider that it is likely that the respondent will succeed in the appeal hearing as to ground 1, having regard to the aforementioned principles attaching to appeals bails and principles applicable in a criminal appeal where an attack is made upon a jury verdict as being unreasonable.

12. [165]

    I have closely examined the respondent’s contentions on this point including the draft submissions prepared for the appeal but there are features pointing to the strength of the Crown case on the appeal as follows:

    1. (1)

       There is no dispute that the respondent had sexual intercourse with the complainant by means of digital and penile penetration at night in a park.

    2. (2)

       The respondent and complainant were not dating at the time, things were different between them and the respondent was aware of this fact before engaging in sexual intercourse.

    3. (3)

       The complainant conceded the following:

    4. (4)

       It is true that some of those concessions arose in cross examination, but they may have also contributed to views by the jury as to the credit of the complainant.

    5. (5)

       Overall, the jury had the opportunity to evaluate the complainant’s explanations for certain conduct which included, inter alia, that she said the phrase as a joke, that the respondent put her on his lap (without opposition), and that she never kissed him back and she was trying to avoid the kisses.

    6. (6)

       The jury also had the opportunity to evaluate, on the Crown’s case, circumstances including on the night of offending, the complainant had stated they were no longer in a relationship, an absence of consent in light of the evidence, which included, inter alia: she had said “no” and “stop” to the respondent multiple times; she had questioned the respondent, “why would you do that”; and made immediate complaint to her friend and various family members about the offences. The intercourse in count 2 apparently stopped because the complainant was able to free her hands and move away.

    7. (7)

       Whilst the draft submissions referred to “conspicuous omissions” by the complainant in the controlled call, that submission was advanced in these proceedings with no reference to whether or not those omissions were in fact put to the complainant at the trial and whether or not she gave evidence denying the same.

    8. (8)

       The Crown convincingly contended that these are suggestive of the complainant’s lack of consent and the respondent knew she was not consenting (to which may be added the respondent’s statement to his friends after the sexual intercourse).

Second Ground of Appeal: The directions in respect of reasonable grounds for belief in consent gave rise to a miscarriage of justice

1. [166]

   With respect to the second ground of appeal, the respondent submitted that a miscarriage of justice arose from the directions given with respect to s 61HE(3)(c) of the Crimes Act, for the reasons set out in the draft submissions, which are set out below.

2. [167]

   Section 61HE(3)(c) is the relevant provision for the purposes of this ground. Section 61HE concerns consent in relation to sexual offences, including offences under s 61I. Subsection (3) is extracted below:

3. [168]

   At the outset of submissions, it was accepted that r 4 of the Criminal Appeal Rules (NSW) is attracted by this ground. That rule is extracted below:

4. [169]

   As to the application of the rule, the respondent submitted: “[t]his rule is not insurmountable nor an impediment to a ground that otherwise enjoys reasonable prospects of success”. The respondent contended that the ground of appeal as articulated by counsel briefed on the appeal, as appears in the draft submissions at paras 39-49, is one where leave would most likely be granted by an appellate court.

5. [170]

   Turning to the draft submissions, with respect to this second ground, the following was submitted:

6. [171]

   The draft submission indicates that the bases for the second ground are as follows:

7. [172]

   The draft submissions also set a lengthy extract of the directions provided by the trial judge in the summing-up:

8. [173]

   Reference was also made to the trial judge’s summary of the defence case, with the following passage being extracted: “The accused says that you would accept that the complainant was consenting, and that this is what the accused believed; and that the basis for that belief was entirely reasonable”.

9. [174]

   Finally, to conclude submissions with respect to ground 2, the following submissions appeared:

10. [175]

    Reliance, in that respect, was placed upon the authority of GBF v The Queen [2020] HCA 40, an example in which an appeal based upon an impugned statement was allowed.

11. [176]

    The Crown advanced the following submissions.

12. [177]

    First, in terms of the second ground of appeal, the respondent relies on the failure of the trial judge to provide a direction to the jury, which he was not bound at law to provide. Counsel were provided with the opportunity at the time to seek any correction or additional directions to the jury. Counsel for the offender did not raise any issue after the completion of the trial judge’s summing-up.

13. [178]

    Secondly, this ground of the appeal must be considered against the background of there being no complaint made about these directions at trial. The offender will require leave to raise this ground of appeal: see r 4 of the Criminal Appeal Rules. The absence of any objection indicates that in the atmosphere of the trial, the directions given were complete and did not give rise to a miscarriage of justice.

14. [179]

    In support of those submissions, the Crown set out the submissions made by the parties with respect to s 61HE(3)(c), to which I now turn.

15. [180]

    At trial, the Solicitor Advocate for the Crown, on 10 August 2020 gave the closing address to the jury. During the course of that address, the Crown indicated the following:

16. [181]

    After the closing address, defence Counsel for the offender asked the Crown to clarify with the jury that the two grounds relied upon were (a) actual knowledge and (c) that there were no reasonable grounds for believing that the complainant was consenting.

17. [182]

    An exchange occurred between the legal representatives and his Honour, during the course of which defence Counsel for the offender indicated there was “two grounds that can make up that version of element, to do with consent being (3)(c) in the legislation, there’s two bases, that the accused did not honestly believe that [s]he was consenting, or that if he did have the honest believe [sic] there was no reasonable grounds for believing and the Crown doesn’t rely on the first”.

18. [183]

    Following discussions, the following clarification was made to the jury:

19. [184]

    Defence Counsel, in their closing made the following submissions:

20. [185]

    After some discussion, defence Counsel made the following correction:

21. [186]

    In the summing-up, his Honour said the following:

22. [187]

    In light of those submissions as to the steps taken with respect to closing submissions and the directions to the jury in the summing-up, the Crown contended “it was clear that it was not the offender’s belief that was challenged, and it was not open for the jury to deliberate upon the basis that reasonable grounds required an evaluation as to whether the offender’s belief was reasonable”.

23. [188]

    During the course of oral submissions, the Crown mentioned to the Court the recent decision of the High Court in GBF v The Queen. In that matter, there was an impugned statement by the trial judge, essentially, addressing the issue of the accused not giving evidence and his right to silence. The appeal was allowed and the matter was sent back. Reference made to [19] and [25], which are extracted below:

24. [189]

    Returning to the present matter, as to the context in which the purported impugned statement arose in the trial, the Crown submitted: “It was settled between counsel prior to the giving of the directions. But it was not a direction that was sought and so it was not an omission by the trial judge, and after the summing-up there was no further direction sought by either counsel”.

Consideration: Merits of Ground 2 vis-à-vis Appeals Bail

1. [190]

   As r 4 applies to the grounds of appeal, it is convenient to refer to the principles to be applied which were summarised in Roos v R [2019] NSWCCA 67 by Gleeson JA (with whom Harrison and Davies JJ agreed) at [71]-[74]:

2. [191]

   The direction provided by the trial judge with respect to sexual assault is modelled off the suggested direction — “sexual intercourse without consent (s 61I) where the offence was allegedly committed on and after 1 January 2008” as printed in the Criminal Trial Court Bench Book at [5-1566]. In delivering that direction, the trial judge addressed each of the elements of the offence to be made out beyond reasonable doubt before entering a verdict of guilty.

3. [192]

   Whilst I note the respondent had not sought any amendment or addition to the direction, either at the time or following the completion of the summing-up, that absence has not in and of itself prevented a ground of appeal based upon an impugned direction being upheld: see example, GBF and Lazarus v R [2016] NSWCCA 52.

4. [193]

   The Court is required to consider whether the impugned direction had an impact upon the jury’s deliberations so as to result in a “substantial miscarriage of justice”: GBH at [27].

5. [194]

   The starting point for that consideration is the purported impugned direction. In the present matter, the respondent contended that the trial judge failed to give adequate direction with respect to the Crown’s case that “the accused had no reasonable grounds for believing that the complainant was consenting to sexual intercourse”, namely, by the absence of any guidance as to what “reasonable” meant. By that submission the respondent did not cavil with the balance of the direction given by the trial judge, nor did the respondent identify any particular passage of his Honour’s direction as erroneous.

6. [195]

   Thus, the circumstances of this case may be immediately distinguished from the circumstances in GBF, as the respondent is not seeking to establish the directions given contained error or were misleading. By the draft submissions, the respondent contends that the trial judge could have provided further guidance and in failing to do so fell into error “the jury may well have deliberated upon the basis that reasonable grounds required an evaluation as to whether the appellant’s belief was reasonable”. Reliance, in that respect, was placed upon Lazarus v R at [156].

7. [196]

   In Lazarus v R, the Court of Criminal Appeal concluded that the directions of the trial judge as to how the jury were to approach their consideration of the appellant’s state of mind were in error: at [158]. The specific impugned statement appeared at [145] and is extracted below:

8. [197]

   The argument successfully advanced by the appellant was that “the impugned direction wrongly directed the jury that the third element of the offence would not be proved unless the appellant had satisfied them by his evidence that he believed in the complainant’s consent and only then if the jury were satisfied that his belief was reasonable” at [150].

9. [198]

   Fullerton J observed: “it remained incumbent on the trial judge to direct the jury that it was for the Crown to negative any reasonable possibility that the appellant believed (even if wrongly) that she was consenting. It was also incumbent on the trial judge to direct the jury that, in considering whether there were reasonable grounds for that belief as the statutory test requires” (at [157]).

10. [199]

    There are available considerations as to why Lazarus v R may be distinguished from the present matter. In Lazarus v R, the appellant accepted that the balance of the trial judge’s directions were directions were unassailable, save for the directions with respect to the third element of the offence. Whereas, on the present application, the respondent does not develop any submissions suggesting anything but the correctness of the directions, save for a contention that they are partially lacking in the absence of guidance as to the meaning of “reasonable grounds”.

11. [200]

    Both parties also advanced submissions as to GBF. In GBF, the trial judge gave the usual direction with respect to the presumption of innocence and the right to silence drawn from the joint reasons in Azzopardi v The Queen (2001) 205 CLR 50 at [51] (per Gaudron, Gummow, Kirby and Hayne JJ). The impugned statement arose late during the context of the trial judge reminding the jury of the complainant’s evidence. The impugned statement appears below (at [12]):

12. [201]

    The High Court held that the impugned statement contradicted the earlier direction, which was correct, and that in those circumstances a irregularity arose amounting to a miscarriage of justice (at [26]-[27]):

13. [202]

    Both GBF and Lazarus v R are examples in which a specific comment or direction was made by a trial judge, which was held to have the capacity to mislead the jury as to the approach to be taken during deliberations and, accordingly, resulted in a miscarriage of justice. The crux of the submissions advanced by the respondent is that the jury’s deliberations would have been better assisted with an additional direction as to what constituted a “reasonable ground”.

14. [203]

    In my view, upon the limited argument developed on this application, and having regard to the above considerations; I do not consider ground 2 is likely to succeed.

15. [204]

    Further, as to grounds 1 and 2, if required to do so, I would conclude there must be doubts as to whether either of the grounds can be said to have reasonably arguable prospects of success.

CONCLUSION: SPECIAL OR EXCEPTIONAL CIRCUMSTANCES

1. [205]

   Having regard to all factors relied upon by the respondent to demonstrate special or exceptional circumstances, whether taken singularly or in combination, I consider the respondent has not established special or exceptional circumstances for the purposes of s 22(1) of the Bail Act. In that light, it is unnecessary to consider the bail concern and unacceptable risk raised by the Crown.

ORDER

1. [206]

   The Court makes the followings orders:

   1. (1)

      The Crown’s detention application is granted.

   2. (2)

      The respondent’s bail is revoked and he is to be detained forthwith.