Grant v R

At the hearing of an application for an extension of time to appeal against the applicant’s conviction, and for bail pending the hearing of the appeal if an extension of time was granted, the Court made the following orders, with reasons to be provided at a later date:

The applicant pleaded guilty in the Local Court to one count of maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The applicant was convicted and sentenced by Judge Haesler SC to imprisonment for 6 years 9 months commencing 20 December 2022 and expiring 19 September 2029 with a non-parole period of 3 years 4 months expiring 19 April 2026.

The underlying offences that resulted in the offence against s 66EA were offences contrary to s 81 of the Crimes Act as it then was. At the time of the alleged offending ss 79-81 of the Crimes Act appeared in Div 10 of Pt 3 of that Act under the heading “Unnatural offences”. The offences were as follows:

On 12 February 2024 this Court held in Lam v R [2024] NSWCCA 6 that the offence in s 81 was incapable of being committed by a female.

In those circumstances, the applicant now seeks leave to appeal against her conviction. She needs leave because the time for filing an appeal expired some time ago.

The sole ground of appeal is this:

The applicant also seeks bail pending the outcome of the hearing of her appeal if leave is granted to appeal out of time. Section 61 of the Bail Act 2013 (NSW) provides that a court may hear a bail application for an offence if proceedings for the offence are pending in the court. The applicant accepts that there may be some doubt about whether there are “proceedings… pending in the court” where leave has not been granted for the bringing of the appeal. The Crown accepts that the jurisdiction of this Court is enlivened to consider an application for bail pursuant to s 61 if leave to appeal is granted. Section 59 provides that a reference to “proceedings for an offence pending in a court” is a reference to substantive proceedings pending in the court.

Both parties accept that for this Court to have jurisdiction to grant bail to the applicant, leave would need to be granted to file the applicant’s appeal out of time.

The Court raised with counsel for the applicant whether the applicant intended to seek leave to withdraw her plea of guilty to the offence. Counsel for the applicant said that consideration was being given to that matter, and what evidence might be necessary to support such an application. Nevertheless, the applicant sought, in the meantime, that an extension of time be granted for an appeal as a result of the decision in Lam because, while Lam stated the law, there was a miscarriage of justice in the applicant being convicted for an offence which did not apply to a female. On any application to withdraw a plea after conviction, the test is also whether a miscarriage of justice will occur if the plea is not permitted to be withdrawn: White v R [2022] NSWCCA 241 at [24] and [58]; Garcia-Godos v R; MH v R [2023] NSWCCA 145 at [57] and [73].

The Crown drew attention to what was said in Meissner v The Queen (1995) 184 CLR 132 at 141-142 in relation to a court acting on the basis of a guilty plea, even if in truth the person is not guilty of the offence, but did not oppose the grant of leave to extend the time for an appeal, whilst reserving its position to argue against a miscarriage of justice at the final hearing of the appeal.

In those circumstances, the Court considered that leave should be granted to extend time for the applicant to appeal against her conviction.

Since the bail application was filed in this Court prior to any grant of leave to extend time for an appeal, this Court did not have jurisdiction to consider the application. The Court considered that leave should be granted for the bail application to be renewed from the time leave to extend time was granted. It was then necessary to consider whether bail should be granted.

Section 22 of the Bail Act provides:

In R v Smith [2023] NSWSC 36 Yehia J summarised the principles associated with s 22 of the Bail Act. Having set out the provisions of s 22, her Honour said:

In Obeid v R (No 2) [2016] NSWCCA 321, the Court (Bathurst CJ, Hoeben CJ at CL and R A Hulme J) said:

The Crown quite properly accepted that even if the test is “most likely” to succeed, it would be open for this Court to conclude from what was said in Lam that the applicant is more likely than not to succeed. In the light of Lam, the applicant’s appeal would be most likely to succeed.

In relation to the “unacceptable risk test”, the Crown did not seek to be heard, but submitted that the most appropriate course would be for the applicant to be returned to the conditions of her previous bail, pending resolution of the appeal proceedings.

It is clear from the sentencing judge’s judgment that, apart from the offending which led to her conviction, the applicant has been an upstanding citizen, generous with her time including fundraising for community committee activities. The offending occurred between 1977 and 1979.

Although the Crown proposed that the applicant should be placed on the bail conditions she was on prior to her conviction and sentence, that would only be necessary if there were bail concerns and the court considered that there was an unacceptable risk associated with one or more of those bail concerns.

The bail conditions imposed upon her after arrest were principally designed to protect the victim and his family. There is no evidence before the Court pointing to any bail concerns, in particular, of any attempt to contact the victim or his family. It follows, therefore, that there is no unacceptable risk if the applicant is released to bail.

Having regard to the matters in s 18 of the Bail Act, the Court considered that the applicant should be released to bail on conditions only that she be of good behaviour, and that she appear before this Court or the District Court whenever she is required to do so.