Director of Public Prosecutions (NSW) v Duncan

By an application dated 17 June 2022 the Director of Public Prosecutions (NSW) sought the detention of Neil Duncan (the respondent) pursuant to s 22B of the Bail Act 2013 (NSW) (the Act). The application was opposed.

I heard the application on 11 July 2022. At the conclusion of submissions, I dismissed the application and indicated that my reasons would be published in due course. Those reasons now follow.

The respondent was arrested on 6 November 2020 and charged with a number of offences of intentionally sexually touching a child between the ages of 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). He was granted conditional bail on the day of his arrest and released.

The respondent subsequently pleaded not guilty to an indictment alleging 14 counts of such offending, and stood trial before her Honour Judge Tupman and a jury in the District Court at Queanbeyan. On 2 June 2022, the jury delivered guilty verdicts in respect of 8 of those counts. Following those verdicts, the Crown made an application for the respondent’s detention. In the course of hearing that application, the following exchange took place between her Honour and the Crown Prosecutor: [1]

In dismissing the application for the respondent’s detention, her Honour said the following:

Having made reference to the potential risks associated with the respondent’s release, her Honour continued:

The sentence proceedings are presently listed before her Honour on 5 August 2022, although in light of a number of matters which have since arisen and to which I have referred below, it is at least possible that they may not proceed on that day.

Senior counsel for the Director tendered a bundle of documents which included a copy of the Crown case statement setting out the respondent’s offending. In view of the issues which I am required to determine on this application, it is not necessary to make any detailed reference to the contents of that statement, other than to say that the offending is obviously serious, with each count attracting a maximum penalty of 10 years imprisonment.

At the time of bringing the present application, the Director also filed with the Court footage of the respondent conducting himself in a way which was said to constitute a breach of the conditions on which he was released by Judge Tupman. However, at the commencement of the hearing before me senior counsel for the Director made it clear that this issue had since been litigated before a Magistrate in the Local Court, who had found that no breach of bail had been established. Senior counsel also made it clear that he would not be submitting on this application that I should find, based on the footage, that the respondent had breached the conditions of his bail. In these circumstances, the footage was not tendered on the application and I have not had any regard to it.

The respondent relied on the following five affidavits, all of which were read without objection:

As the affidavit of Ms Treadwell went solely to the alleged breach of bail which senior counsel for the Director abandoned, I have not had regard to it. None of the deponents of the remaining affidavits were cross-examined. Accordingly, their evidence is entirely unchallenged. The following matters emerge from that evidence.

Prior to the commencement of his trial in May of this year, the respondent consulted his General Practitioner in Tamworth. As a consequence of the history which he provided, he was advised to have a blood test. [2] In circumstances where his trial was expected to be completed in 2 weeks, he deferred the test. As events transpired, the trial took far longer than had been anticipated, and the respondent was not able to have the test until 16 May, at which time he also had a Prostate Specific Antigen test. [3] The results of the latter test were indicative of prostate cancer, as a consequence of which the respondent was referred to a urological surgeon, Dr Smith.

Ultrasound investigations were carried out on 7 June and 20 June, and a biopsy was taken on 1 July. [4] On 5 July the respondent spoke with Dr Smith who confirmed a diagnosis of prostate cancer. After discussing the available treatment options, the respondent agreed to undergo surgery to remove his prostate gland. [5] At that point it was not clear when the surgery was likely to be scheduled. However, Annexure C to the affidavit of Mr Woodhouse of 11 July 2022 is a letter from Dr Smith of the same date which states the following:

When he spoke with Dr Smith on 5 July, the respondent provided a further history of additional symptoms he had been experiencing. Dr Smith advised him that those symptoms may be indicative of bowel cancer, and recommended that he undergo further tests. [6] In that regard the affidavit of Mr Woodhouse of 11 July 2022 [7] establishes that the Respondent now has the following further investigations scheduled:

As to what he views as the likely outcome of his sentence proceedings, the respondent said the following: [8]

The respondent also stated [9] that apart from his health issues, he had a need to be at liberty to finalise arrangements in relation to the management of his affairs. That need stems primarily from the necessity to reduce the stock numbers on the rural property he operates with his wife, and to organise people to help his wife manage the property in his absence. The respondent stated [10] that since the verdicts of the jury were returned, he has been actively putting in place measures to address these issues. That evidence is generally corroborated by his wife in her affidavit. [11]

On 27 June 2022, which was after the respondent was released on bail by Judge Tupman, s 22B of the Bail Act 2013 (NSW) (the Act) came into force. Before considering the terms of s 22B, there are some other provisions of the Act to which I should refer in light of the issues which have arisen.

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

Section 7 defines “bail” as:

Consistent with the object of the Act, s 49 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 22B, which is the focus of the present application, is in the following terms:

Section 98(1) of the Act is in the following terms:

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

Accepting that the respondent has been convicted but not sentenced, and in light of the submissions made on his behalf, three issues arise for determination:

Senior counsel for the respondent submitted that on its proper construction, s 22B of the Act contravened the common law presumption against retrospectivity. It was submitted that at common law, a statute changing the law should not, unless a contrary intention appeared with reasonable certainty, be understood as applying to facts or events that have already occurred, in such a way as to confer or impose, or otherwise affect, rights or liabilities which the law had defined by reference to past events. [12] Senior counsel submitted that it was impermissible to call in aid, in the construction of s 22B, the provisions of cl 45 of the Regulation. [13]

It was submitted that the common law presumption against retrospectivity applied because (inter alia) s 22B substantially increased the respondent's liability to be imprisoned, by imposing upon him an obligation to demonstrate special or exceptional circumstances. It was submitted that there was a high degree of unfairness in retrospectively requiring the respondent to demonstrate such circumstances where it was not previously a requirement that he do so. Senior counsel further submitted that there was nothing in the terms of s 22B from which it could be concluded that the Parliament had intended it to have retrospective operation.

It was submitted that in all of these circumstances, s 22B should be taken to apply only to persons who were convicted on or after its commencement date, namely 27 June 2022. Senior counsel also referred, in passing, to the Interpretation Act 1987 (NSW) (the Interpretation Act) as providing statutory support for his position. He submitted, in particular, that “the prohibition against backdating legislation is effectively absolute” by virtue of s 39 of the Interpretation Act.

For the reasons that follow I am not persuaded that s 22B operates retrospectively, that it offends common law principles, or that it is contrary to the provisions of the Interpretation Act upon which senior counsel relied.

In determining issues of retrospectivity by reference to common law principles, it is important to draw a distinction between legislation which has a prior effect on past events (which is retrospective) and legislation which bases future action on past events (which is not). [14] In Robertson v City of Nunawading [15] the Full Court of the Victorian Supreme Court put the matter in this way:

In Re A Solicitor’s Clerk [16] a legal clerk was convicted of charges of larceny. At the time of his conviction, no order could be made under legislation which would have prohibited him from being employed as a legal clerk, because the victim of his offending was not his employer or his employer's client. The legislation was subsequently amended to allow such an order to be made. The Court rejected an argument that to apply the amendment to prohibit the clerk from being employed would be to give it a retrospective operation. The Court concluded that the amendment had future operation only, even if the facts on which it depended had taken place in the past. The same approach was taken in La Macchia v Minister for Primary Industry, [17] as well as in Geschke v Del-Monte Home Furnishers Pty Limited. [18]

Viewed in this way, s 22B of the Act does not offend any common law presumption against retrospectivity. Adopting the phraseology in Robertson, s 22B takes into account antecedent facts, namely the fact that a person has been convicted but not sentenced, and uses that as a basis for what it prescribes is to occur in the future, namely that the person is not to be released if he or she will be sentenced to full-time imprisonment, and if there are no special or exceptional circumstances. This approach to the construction of s22B does not involve, in any way, utilising the cl 45 of the Regulation as an aid. The unequivocal terms of cl 45 simply confirm that s 22B applies whether or not an application is made before or after the date of its commencement.

Although not specifically cited by senior counsel for the respondent, I note that s 30(1) of the Interpretation Act is in the following terms:

The only sub-paragraphs of s 30(1) which might possibly be relevant are sub-paragraphs (a) and (c). As to s 30(1)(a), the word “revive” necessarily connotes the restoration of something. Section 22B of the Act does not have the effect of restoring anything which was not in force or existing at the time that it became operative. As to s 30(1)(c), and given the purpose and scheme of the Act, the right or privilege that an offender acquires by operation of the Act is the right to apply to be released. That right is not affected by s 22B. Accordingly, neither s 30(1)(a) or (c) has any application.

Finally, s 39 of the Interpretation Act to which senior counsel for the respondent referred in passing is in the following terms:

For the reasons I have expressed, s 22B is not “backdated legislation”. Section 39 has no application.

I am satisfied that s 22B applies to the present application notwithstanding that it became operative after the respondent’s release.

The respondent unequivocally accepts that a sentence of full-time custody is highly likely. That position has no doubt been taken, at least in part, in light of statements made by the trial judge in the course of the hearing of the previous detention application. [19] Notwithstanding that, senior counsel for the respondent submitted that the use of the word “will” in s 22B(1) rendered it necessary that I reach a state of certainty, or in other words that I be positively satisfied, that a term of full-time imprisonment will be imposed on the respondent. Senior counsel submitted that, given that the sentencing process is not one that leads to a single correct outcome and is not a mathematical exercise, [20] I could not be positively satisfied that the only available sentence was one of full-time imprisonment, and that any other sentence was outside the range of possible outcomes. Whilst accepting that it was undoubtedly “on the cards” that the respondent would be sentenced to full-time imprisonment, it was submitted that this was not certain. In support of that proposition, counsel advanced a number of submissions primarily in relation to the recent developments in the respondent’s health.

In considering these submissions, s 32 of the Act is relevant:

In Director of Public Prosecutions (NSW) v Day [21] Garling J reached the conclusion, with which I respectfully agree, that in an application for the detention of an offender to which s 22B applies, the Director must satisfy the Court, on the balance of probabilities, that no sentencing alternative other than full time imprisonment could lawfully be imposed. In reaching that determination, his Honour concluded [22] that the word “will” as it appears in s 22B(1) connotes a degree of certainty or confidence that full-time imprisonment will be the outcome of the sentencing hearing. His Honour went on to observe: [23]

His Honour ultimately concluded that he could not be satisfied that there was no sentencing alternative available to the sentencing judge in that case, other than full-time imprisonment. In reaching that conclusion, his Honour made particular reference [24] to the fact that the sentencing judge had expressed the view, in refusing an earlier detention application, that whilst a full-time custodial sentence was highly likely, he could not be satisfied that it was certain. The observations of Judge Tupman in the present case, which the respondent appears to accept, are to the opposite effect. They were also made in circumstances where the offending of which the respondent has been convicted is of an entirely different nature to that of which the respondent in Day has been convicted.

I have had regard to the objective circumstances of the offending set out in the Crown case statement, the applicable maximum penalty, the observations of the sentencing judge when releasing the respondent, and the respondent’s candid acceptance, as things presently stand, of the likely outcome of the sentence proceedings. Those matters satisfy me, on the balance of probabilities, that the respondent will be sentenced to imprisonment to be served by full-time detention.

However, I should say that the fact that the Court is required, on an application such as this, to make a determination as to the outcome of a sentencing hearing highlights a practical difficulty, and indeed a degree of artificiality, in the operation of s 22B. This is simply due to the fact that in many cases (this case being an example) a Judge or Magistrate called upon to make a determination of the outcome of sentence proceedings for the purposes of s 22B will not be the sentencing Judge or Magistrate, and will therefore not have the benefit of the entirety, or perhaps any, of the evidence upon which an offender may wish to rely in mitigation.

In the context of the present case, given the respondent’s forthcoming investigative procedures, and his proposed surgery, it is not difficult to envisage that an application may be made on 5 August next for an adjournment of the sentence proceedings, to give him the opportunity of putting before the sentencing judge evidence as to the results of those procedures, the success or otherwise of his surgery, and his general prognosis. Senior counsel for the respondent specifically alluded to the likelihood of such an application being brought. What might ultimately be made of any such evidence will obviously be a matter for the sentencing Judge. The determination that I have made for the purposes of s 22B as to the outcome of the sentence proceedings could obviously not bind her Honour. Moreover, it has obviously been made on the basis of evidence which is substantially less detailed than that upon which the respondent will no doubt rely on his sentence hearing.

The terms “special" and “exceptional” are not defined in the Act. The definition of the word “special” in the Macquarie Dictionary 2022 includes the following:

The definition of the word “exceptional” includes the following:

It will be apparent from these definitions that there is a considerable degree of overlap between the two terms.

Section 9C of the Bail Act 1978 (NSW) provided that in certain circumstances (such as where the accused had been charged with an offence of murder) bail was not to be granted unless the Court was satisfied that exceptional circumstances were established. In R v Tapueluelu [25] Dowd J expressed the view this required establishing something more than “special circumstances” or “mere circumstances”. That does not sit entirely comfortably with the Dictionary definitions of “special” and “exceptional”.

In R v Young [26] Johnson J adopted, for the purposes of s 9C, the definition of “exceptional” set out above. In a subsequent decision of R v Tillman [27] his Honour took the view that whether exceptional circumstances were made out for the purposes of s 9C involved a case by case determination. In my view, given that the facts of cases obviously differ, that approach should be adopted for the purposes of considering whether circumstances are “special or exceptional” for the purposes of s 22B.

In the present case, the respondent relied primarily on the evidence surrounding his health as constituting special or exceptional circumstances. Some reliance was also placed on the need to arrange his personal affairs. In the course of submissions in relation to this issue, I had the following exchange with senior counsel for the Director: [28]

Although senior counsel for the Director purported to eschew a concession that special or exceptional circumstances had been made out on the basis of the respondent’s health issues, he ultimately made such a concession, without equivocation, in the passages of the above exchange which are underlined and italicised. That concession having been made, senior counsel expressly accepted that it would follow that the detention application would be dismissed. In these circumstances, I am not required to consider whether the respondent’s asserted need to be at liberty for the purposes of arranging his affairs amounts to special or exceptional circumstances for the purposes of s 22B.

It was for these reasons that I made the following order: