McGlone v Director of Public Prosecutions (Cth)

WHITE JA: On 8 May 2019, the Court heard a release application under s 49 of the Bail Act 2013 (NSW) (“the Bail Act”) by the applicant, Richard McGlone. The Crown opposed the grant of bail. The Court granted Mr McGlone’s release application and granted him bail on certain conditions. There was no dispute about the conditions imposed once it was found that bail should be granted.

These are my reasons for joining in the orders of the Court.

In 2016 the applicant was tried and convicted in the District Court along with a co-accused, Mr Jason McKell, for offences relating to the importation and conspiracy to import commercial quantities of pseudoephedrine and methamphetamine. They were each also tried and convicted of an offence relating to the dealing with proceeds of crime. On 11 November 2016, the applicant was sentenced to an aggregate term of imprisonment of 19 years with a non-parole period of 12 years.

The applicant’s co-accused, Mr McKell, appealed his conviction. His appeal to this Court was dismissed by majority (McKell v R [2017] NSWCCA 291). He obtained special leave to appeal to the High Court. On 13 February 2019 the High Court allowed his appeal, quashed his convictions, and ordered that a new trial be had (McKell v The Queen [2019] HCA 5). The High Court held that the trial judge’s summing up was unfair and denied Mr McKell a fair trial.

The applicant filed a notice of appeal on 16 May 2018. The fourth ground of appeal was that the trial judge’s summing up to the jury caused a miscarriage of justice. His notice of appeal also contains other grounds, some of which he would contend, would lead to his acquittal if established. The applicant’s appeal is listed to be heard in this Court on 29 July 2019. The Crown concedes that in the light of the High Court’s decision in McKell, the applicant’s fourth ground of appeal has merit. The Crown will not oppose an order quashing the applicant’s convictions and ordering a new trial. The Crown accepts that if the result of the appeal is the ordering of a new trial, such a trial is unlikely to be able to take place before the middle of 2020.

The applicant was arrested on 20 May 2013. On 24 October 2013, he was granted conditional bail by Barr AJ. He was committed for trial on 23 March 2015 and his trial commenced on 6 June 2016. Guilty verdicts were returned on 21 July 2016 and his bail was revoked.

The applicant complied with his bail conditions.

Section 22 of the Bail Act applies. It provides:

Count 2 on the indictment, being a charge of conspiracy to import a commercial quantity of methamphetamine contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) is a “show cause” offence. By reason of s 22(2), subs 22(1) applies instead of the requirement that would otherwise arise under s 16A to show cause why his detention was not justified. Subsection 22(1) applies to each of the offences in question.

The Crown submitted that special or exceptional circumstances had not been established to justify the bail decision because appeal prospects were a factor to be considered in the context of other relevant circumstances, including the unacceptable risk factors said to be imported into consideration of s 22(1) by s 22(3). When those factors were taken into account, according to the Crown’s submissions, special or exceptional circumstances had not been established under subs 22(1). In support of this submission, the Crown referred to the judgment of Hamill J in El-Hilli and Melville v R [2015] NSWCCA 146 at [13]. Hamill J, with whom Simpson J and Davies JJ agreed, said:

These observations were made with reference to the reasons of the Court of Appeal in DPP v Tikomaimaleya [2015] NSWCA 83 in relation to offences where there was a “show cause” requirement. The Court there said (at [24]-[25]) in a passage quoted by Hamill J in El-Hilli and Melville v R:

It is clear, as Hamill J said, that the same kind of two-stage approach is called for by s 22. The first stage is to determine whether special or exceptional circumstances exist that justify a grant of bail. Section 22(3) stipulates that the unacceptable risk test in Div 2 also applies to the making of a bail decision. In substance, the need for special or exceptional circumstances is an additional hurdle. There may well be matters that are relevant to both a determination of whether there are special or exceptional circumstances and to the unacceptable risk test.

Hamill J went on to say (at [13]) in a passage relied upon by the Crown:

I do not entirely follow this reasoning and his Honour was careful to say that the bail authority must apply each test in accordance with the terms of the Act. The present case is an example where a particular matter qualifies as a special or exceptional circumstance, namely that the Crown concedes the merit of ground 4 of the Notice of Appeal and accepts that the convictions should be quashed and a new trial ordered. The essence of the Crown’s opposition to the grant of bail is that there is an unacceptable risk that the applicant, if released from custody, would fail to appear at a new trial (Bail Act, s 19(2)(a)). The question whether special or exceptional circumstances exist is to be assessed independently of whether there is an unacceptable risk referred to in s 19(2), although whether there is an unacceptable risk must nevertheless be considered by reason of s 22(3). Whether the assessment of unacceptable risk will always or usually form part of a consideration as to whether there are special or exceptional circumstances, should be of no real moment, provided both matters are addressed.

In another context, Gleeson CJ said (in Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 (at [13])):

The Crown’s concession in this case is in my view plainly a special and an exceptional circumstance. (A circumstance does not have to be unique, unprecedented or very rare to be exceptional, but must not be a circumstance regularly, routinely or normally encountered (R v Kelly [2000] QB 198 at 208 and Baker v The Queen at [173]-[174] per Callinan J)).

In assessing whether there was an unacceptable risk as described in any of paragraphs (a)-(d) of s 19(2), the Court was required to consider all of the matters in s 18(1) and only those matters in its assessment of bail concerns. Addressing each of the paragraphs in s 18(1) in turn:

These conditions addressed the bail concerns in s 17(2).

The remaining paragraphs of subs 18(1) are not relevant.

The risk of flight is not greater now than it was when the applicant was on bail before his trial. He complied with his bail then. A friend whom the Crown accepts to be an acceptable person to deposit security has proffered his preparedness to enter into an agreement to forfeit $150,000 in equity in a property he owns in Bondi secured by second mortgage in favour of the Queen if the applicant fails to comply with his bail undertaking. The applicant’s wife deposes that he would not risk separation from his family whom he loves and would not risk his friend losing his surety.

In concurring in the Court’s decision to grant bail, I was satisfied that the applicant’s strong family connection, the unlikelihood that he would risk his friend’s surety by fleeing, and his record of having complied with his bail conditions before his trial satisfactorily address the bail concerns in s 17. I did not consider that there was an unacceptable risk that the applicant, if released from custody, would fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence. For these reasons I joined in the making of the orders.

HARRISON J: I agreed with the orders made by the Court on 8 May 2019 for the reasons given by White JA.

R A HULME J: I joined in the making of the orders by the Court on 8 May 2019. The factual matters and conclusions discussed in the judgment of White JA at [17]-[21] represent my reasons for doing so.