Day v R

THE COURT: On 30 June 2022, after a trial in the District Court, Titus Day (‘the applicant’) was found guilty by a jury of 34 counts of embezzlement by a clerk or servant contrary to s 157 of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment which he is currently serving.

The applicant applied to this Court for leave to appeal against his convictions. The Court heard the application for leave to appeal on Friday 23 June 2023. After consideration, each member of the Court was satisfied that Ground 2 of the proposed appeal was made out. It will therefore be appropriate, in due course, to grant leave to appeal, to quash the convictions and to order that there be a new trial. The Court is not in a position to dispose of two other grounds of appeal, one of which, if successful, could potentially result in the acquittal of the applicant.

Accordingly, the Court is not able to make final orders on the application.

The Court notified the parties of its intention to uphold Ground 2, as a result of which the applicant made a release application under s 49 of the Bail Act 2013 (NSW) (“the Act”). Jurisdiction to deal with the application is conferred on this Court by s 61 of the Act.

By s 22(1)(a) of the Act, where an appeal is pending in this Court, bail may not be granted unless it is established that special or exceptional circumstances exist that justify the grant of bail.

The Court is satisfied that, in this case, special or exceptional circumstances that justify the grant of bail exist. The relevant circumstances are that the success of Ground 2 of the proposed appeal means that the applicant will be entitled to orders that the convictions be quashed and that there be a new trial. He is entitled to be treated as an unconvicted person subject to charge. Prior to the trial in the District Court the applicant was subject to a bail order.

The Crown does not oppose the grant of bail subject to the conditions that have been agreed between the parties.

It is therefore appropriate to make an order granting bail, subject to the agreed conditions.