Director of Public Prosecutions (NSW) v AP

By an application dated 30 June 2022, the Director of Public Prosecutions (NSW) sought the detention of AP (the respondent), relying upon the provisions of s 22B of the Bail Act 2013 (NSW) (the Act). I heard the application on 8 July and 11 July 2022. At the conclusion of the hearing I made the following orders:

I indicated at that time that the reasons for making those orders would be published at a later date. Those reasons now follow.

In April 2019, the respondent was arrested and charged with a number of counts of sexual offending contrary to ss 61M(2), 66C(1), 66C(3) and 66DB(a) of the Crimes Act 1900 (NSW). He was released on bail following his arrest.

The respondent subsequently stood trial before His Honour Judge Hoy SC and a jury in the District Court of New South Wales at Parramatta. On 29 March 2022 he was found guilty of:

Upon those verdicts being returned, the Crown made a detention application before his Honour. That application was dismissed, and the respondent's bail was continued.

A sentence hearing took place on 19 May 2022. At the conclusion of that hearing, his Honour indicated to the parties that he was not in a position to deliver judgment immediately. The Crown made a further detention application. That application was dismissed, and the respondent’s bail was again continued.

The respondent is to be sentenced by Judge Hoy SC on 29 July 2022.

A number of provisions of the Act are relevant to the determination of the Director’s application.

To begin with, the purpose of the Act is set out in s 3:

Section 4 of the Act defines a “bail application” to include a detention application of the kind which is presently before me.

Section 7 of the Act defines “bail” as:

Section 49 of the Act confers, on a person accused of committing an offence, the right to apply to a Court, or to an authorised justice, for bail to be granted or dispensed with.

Section 66 of the Act sets out the power of this Court to hear the present application:

Section 73 of the Act confers a discretion on the Court to refuse to hear the present application:

The primary focus of the present application is s 22B of the Act which became operative on 27 June 2022, and which is in the following terms:

Section 98(1) of the Act sets out the regulation making power:

Clause 45 of the Bail Regulation 2021 (NSW) (the Regulation) contains a transitional provision in the following terms:

The amendments to the Act made by the Bail Amendment Act 2022 (NSW) obviously include s 22B.

In light of the submissions of the parties, the following issues arise for determination:

Counsel for the respondent advanced the following propositions in support of the overarching submission that I should exercise the discretion conferred by s 73(1) of the Act to refuse to hear the Director’s application:

For the following reasons, I am not persuaded that the Director’s application is frivolous or vexations, nor am I persuaded that it is without substance or otherwise has no reasonable prospects of success.

The term “frivolous” is defined in the Macquarie Dictionary 2022 as:

The term “vexatious” is defined as:

There is nothing to support a conclusion that the Director’s application has been made without proper or sufficient grounds, much less for the purposes of causing annoyance. Any suggestion that the application is characterised by a lack of seriousness overlooks its fundamental nature, and the issues which arise.

Over and above those matters, I make the following specific observations in relation to the submissions advanced by counsel for the respondent.

First, the fact that the Director did not bring the application in the District Court is largely immaterial. I accept, for the reasons expressed in Director of Public Prosecutions (NSW) v Duncan, [3] that difficulties can arise when a Court asked to determine an application of this nature is not the sentencing Court. However, the fact remains that by virtue of s 66(2) of the Act, this Court is seized of jurisdiction to hear and determine the application. There is no cogent reason to decline to do so.

Secondly, I do not accept that what was said to be the “unusual” nature of this application renders it special or exceptional, to the point where I should simply decline to hear it. A determination whether circumstances are special or exceptional is one to be made on the whole of the evidence, following a hearing.

Thirdly, the fact that the respondent will be sentenced in 23 days does not render the present application frivolous, vexatious, without substance or otherwise lacking in reasonable prospects of success.

Fourthly, I reject the proposition that it is open to infer, simply from the fact of the Director’s application, that there has been a “lack of executive restraint” in bringing it. Such a submission is wholly unsupported by the evidence.

Finally, whilst I accept that the Director’s application poses difficult legal and factual issues, that is not a basis on which to decline to hear it. On the contrary, the fact that they arise warrants such issues being authoritatively determined.

Counsel for the respondent submitted that in circumstances where s 22B came into force after the most recent detention application had been dismissed by Judge Hoy SC, the section had no application. That submission was based largely upon s 30(1) of the Interpretation Act 1987 (NSW) which is in the following terms:

Counsel relied, in particular, on sub-paragraphs (a) and (c).

A similar proposition was advanced in Duncan. For the reasons set out in that judgment, [4] I am satisfied that s 22B of the Act applies.

In Duncan, [5] I made reference to the difficulties created by s 22B where a Court which is not the sentencing Court is called upon to determine whether a person will be sentenced to full-time imprisonment. In the present case, such difficulties are alleviated to a considerable degree by the fact that the written submissions of senior counsel who appeared for the respondent on the sentence proceedings effectively conceded that a full-time custodial sentence would be imposed. [6] I am satisfied in those circumstances that the respondent will, on the balance of probabilities, be sentenced to full-time imprisonment. [7]

Two principal submissions were advanced by counsel for the respondent in support of the proposition that special or exceptional circumstances were established.

The first was that the background against which the application had been brought, bearing in mind the enactment of s 22B, was itself special or exceptional. In my view, that is an impermissibly circular proposition.

The second was that the respondent wished to arrange his personal affairs before commencing any sentence. In Duncan, I canvassed the meaning of the terms “special” and “exceptional”. Bearing in mind the views I expressed, I am not satisfied that the respondent's desire to arrange his personal affairs prior to being taken into custody is a circumstance which falls into either category. On the contrary, an offender’s desire to arrange his or her affairs before going into custody to commence serving a sentence is something which would be common to the overwhelming majority of offenders in the respondent's position, and thus the antithesis of what is special or exceptional.

For these reasons, I made the following orders at the conclusion of the hearing: