REGINA v LOUIS BAYEH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, POWELL and STEIN JJA 7 August 1997, 7 August 1997 [1997] NSWCA 262 Criminal law — Bail — claimant guilty of attempting to pervert course of justice — refusal of bail by trial judge — application to single judge of Supreme Court and referral to Court of Appeal — whether custodial sentence likely — effect of pending appeal — Bail Act 1978, s30AA — whether exceptional circumstances Mason P The applicant for bail, Mr Louis Bayeh, was charged in January 1995 with attempt to pervert the course of justice. He was committed for trial. The trial commenced on 2 July 1997 before his Honour Acting Judge Stewart in the District Court at Sydney. On 4 July at the completion of the Crown case and in the absence of the jury, after a no case submission was rejected, the applicant pleaded guilty to the charge. The jury was directed to return a verdict of guilty, which they did. Bail was applied for pending sentence. It was proposed the matter stand over for several months. The first ground that was advanced at that stage was the need for access to counsel, particularly having regard to the fact that as matters then stood the applicant had been committed for trial on two counts of demanding money with menaces and a trial for those matters had been fixed for 21 July 1997. The second basis of the application was the health of the applicant and his need for readier access to medical treatment than would otherwise have been available. Although the Crown did not oppose bail, it was refused by the learned trial Judge. In some preliminary remarks his Honour said that the prisoner had been convicted of a most serious charge, being one that struck at the administration of justice and which was reprehensible in the extreme. The prisoner had, as he was entitled, pleaded not guilty, but in so doing and then changing his plea at the eleventh hour it could, in his Honour's view, be said quite fairly that he could expect no discount in relation to any sentence that may be imposed upon him for pleading guilty at an early stage. Responding to the grounds that were advanced, which I have summarised already, his Honour said: "..Many persons are placed in a situation where preparations for trial must be made while the person is in custody. Within the prison system there are facilities for the treatment of illnesses. If his illness or illnesses are so serious as not to be able to be treated within a hospital within the prison complex, it is not beyond the facilities and power of the Corrective Services authorities to allow the prisoner to have treatment at another place, for example, Prince Henry Hospital. I find that this offence is a serious one. There is a maximum penalty of fourteen years attaching to it. I don't suggest that that is the appropriate penalty by any means. However, it can readily be seen that the legislature treats matters such as this with the utmost seriousness. As I have already observed it strikes at the heart of the administration of justice. 2 UNREPORTED JUDGMENTS He pleaded not guilty, that is his right, but he pleaded not guilty in what turned out to be, in my view, an unanswerable case and at the very last minute when that became apparent he pleaded guilty. There can be no resiling from that fact. Guilty he has pleaded and guilty he is.... " His Honour remanded the prisoner for sentence to 19 September 1997 and bail was refused. The matter upon which the applicant pleaded guilty was indeed a matter of considerable seriousness. The facts are summarised in the statement of facts. A short time later the previously fixed trial date relating to the charges of demanding money with menaces was vacated on the application of the defence. A new trial date was set for 2 February 1998. Bail was refused in relation to that matter. I mention that but immediately qualify it by recording that it was common ground between counsel who argued the matter today that the bail disposition referable to that matter should in effect follow the bail arrangements that would follow in relation to the matter upon which the applicant stands convicted. On 15 July 1997 the applicant appeared before his Honour Judge Sinclair QC in relation to an interlocutory stage of the other criminal proceedings. On that date his Honour made a recommendation to the Department of Corrective Services concerning the provision of medical treatment to the applicant whilst in custody. A copy of that recommendation has been forwarded to the appropriate authorities. This matter comes before this Court on a reference by Dowd J before whom it first came. This is consistent with the practice that has been adopted since 1979 whereby if an application for bail is made in the Supreme Court following a refusal of bail by a judge either of the District Court or Supreme Court during a trial or pending sentence then in at situation the single judge of the Supreme Court before whom the application comes will, as a matter of practice but not jurisdiction, decline to exercise the jurisdiction. The authorities are referred to in The Queen v Roberts Court of Appeal (unreported) 14 March 1997. In that same case I emphasised, when giving the reasons with which Powell and Beazley JJA agreed, that the jurisdiction of this Court is an original jurisdiction not dependent upon demonstrating error on the part of the trial Judge. Nevertheless, it obviously is a matter in which an appellate Court should exercise restraint having regard to the fact that a trial Judge will be in a much better position than an appellate Court to weigh up the various factors supporting or negating an application for appeal. Of course, those remarks have application where there is no change in the evidence that is of any bearing upon the matter. In the present case a body of evidence was placed before this Court upon which the Court is invited to determine the matter. On 5 August the applicant filed a notice of appeal to the Court of Criminal Appeal. The Court was informed that the ground of appeal indicated in that notice is that the verdict was unsafe and unsatisfactory. Of course, it would clearly be open to the appellant to file a more detailed and, one hopes, more helpful notice of appeal in due course. Since an appeal has, however, been lodged it is appropriate to record that the power of this Court in dealing with the application for bail is subject to s30AA of the Bail Act which relevantly states that, notwithstanding anything in the Act, if an appeal is pending in the Court of Criminal Appeal against a conviction on indictment bail shall not be granted unless it is established that special or exceptional circumstances exist justifying the grant of bail. URJ REGINA v LOUIS BAYEH (Mason P) 3 In Regina v Wilson (1994) 34 NSWLR 1 at 6 Kirby P said that in an application for bail where a person after conviction stands for sentence it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground the application for bail is likely to succeed. The application must be most likely to succeed. In the same case Hunt CJ at CL said at 7 that: "\..it has to have an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application..." Counsel for the applicant, Mr Bodor QC, frankly accepted that this was not a case in which, on the material before the Court, the exceptional circumstances referred to in the passages I have read from Wilson's case come into play. This is a case in which, if the conviction stands, there is a high probability that a substantial custodial sentence will be imposed; and this is not a case where, on the material presently before the Court, the Court can say that there has been shown to be any significant prospect of success in the appeal. I emphasise that that is an assessment based upon the material presently before the Court and the frank concession by counsel for the applicant. It was at one stage argued that there is a relevant distinction between a jury verdict following a contested trial and a verdict by direction following a plea of guilty. The relevance of any such distinction presently escapes me. I would have thought that a verdict following a plea of guilty, unless that plea itself is shown to be tarnished in some way, is of a stronger nature than a verdict following a contested trial, at least as regards the prospects of success of the applicant in upsetting the conviction. Of course, the plea may be a factor taken into account in sentencing, but the remarks of the learned trial Judge make it plain that in this case the late plea is not likely to receive much, if any, discounting effect. Although the applicant relied upon other grounds for seeking bail to which I shall shortly turn, I think it must be emphasised that the terms of s3;0AA cannot be skirted around simply by running one's case on grounds other than attacking the verdict below and pointing to the prospects of success in a pending appeal. S30AA is addressing a situation where there has been a conviction on indictment and an appeal has been lodged, but it expresses a more general principle of deference to a jury verdict in circumstances where that which was in issue prior to the verdict has in the eye of the law passed beyond issue once the verdict has been given, subject only to appellate rights. The grounds that were particularly relied upon in the application before the Court today related to the medical condition of the applicant; the desirability of the applicant having unhindered access to his counsel for the preparation of the appeal (and I suspect also the preparation of the pending further trial); and exhibit A. As to the medical situation there was placed before the Court a volume of medical evidence referring to a high anxiety state on the part of the applicant for which a consultant psychiatrist, Dr Canaris, expresses a detailed opinion in his report dated 2 August 1997. In this report he records concern about the psychiatric state of the applicant and the level of psychiatric and medical care which he is receiving or likely to receive within the prison system. Issue has been joined, in part, in medical evidence that has been filed on behalf of the Crown both as to the extent of the medical condition and the capacity of the prison service effectively to treat it. The other aspect of the applicant's medical condition to which the evidence refers relates to his peptic ulcer and severe oesophageal reflux, as well as a condition of sleep apnoea. Some of these conditions have been with Mr Bayeh 4 UNREPORTED JUDGMENTS for a considerable time. Others are a consequence of drug treatment which he has been receiving, which itself is receiving some belated attention at the hands of the medical authorities. Although the medical evidence filed by each party was somewhat at issue, the case proceeded today on the basis the Court was not invited to resolve exactly where the truth lay in that regard. I am certainly prepared to accept for the purpose of the present application the medical condition as deposed to in the report from Dr Canaris. But I cannot see how that, in itself, is determinative of this matter given the fact that there has been a conviction for the particular offence, given the remarks of the judge as to the likely outcome of the matter as conceded by counsel and given, in particular, the stern injunction contained in s30AA. As to the criticisms of the prison medical service, again I do not think it is necessary to resolve those because, even taking Dr Canaris' evidence at its highest, I am not persuaded that it makes out a case for bail to be granted referable to the medical condition having regard to the other factors to which reference has been made. These include the judge's remarks on this very topic that I have already set out. The second matter which I referred to was the need of the applicant for access to his legal advisers to assist in the preparation of the proposed appeal and the preparation for the further trial. I do not think that that submission carries any weight. The appeal is some time off, as is the rescheduled trial. Neither, on the material before us, are such that there would be any significant impairment in the applicant's right to a fair hearing merely because those rights of access to his lawyers have to be exercised while the applicant is in custody. The third matter and the one upon which principal reliance was made concerned a document which became exhibit A in these proceedings. The Court received it as a confidential exhibit. Although this is not a sentencing proceeding it was tendered on the basis that it contained material that may be relevant to the likely disposition of the sentencing phase in the criminal proceedings. The basis upon which it was tendered and received is discussed in Regina v Tait (1979) 24 ALR 473 at 478-9. Each member of the Court has given careful consideration to the information provided in the exhibit and to the submissions of counsel concerning it. It is noted that the Crown, despite being aware of the contents of the exhibit, continues to oppose bail. I propose to order that the exhibit be placed in a sealed envelope to be delivered to the Registrar of the Court of Criminal Appeal to be maintained in safe custody and not to be made available to any person except with an order of a Judge of Appeal. It is inappropriate, having regard to the way in which the matter was conducted, that anything further be said about the contents of the exhibit, which can speak for itself, albeit only to the ears of those who have seen it. I remain very comfortably of the view that it has not been established that special or exceptional circumstances exist that would justify the grant of bail in the present stage of the proceedings. Even if s30AA did not directly apply, for example, were no appeal pending but the applicant simply be on remand pending sentence, I would be of a similar view. But having regard to the fact that an appeal is pending, s30AA is directly applicable. The case is one in which, having regard to the matter upon which the applicant stands convicted, the likely sentence that is likely to be imposed, the prospects of success as they presently appear to the Court and the terms of s30AA that it is appropriate, in my view, to refuse bail. URJ REGINA v LOUIS BAYEH (Mason P) 5 Powell JA I agree. In the course of his submissions Mr Bodor, who, if I may say so, has said everything that could be said on behalf of the applicant in what I regard as a difficult case, has submitted that notwithstanding the filing within the last few days of a notice of appeal against conviction the Court ought to proceed upon the basis that the applicant is to be regarded as a person on remand pending sentence. In the light of the provisions of s30AA of the Bail Act and of the approach revealed by the Court of Appeal in Regina v Wilson (supra) to which the President has earlier referred, I would seriously question that it would be legitimate for this Court to proceed on that basis. This notwithstanding, I am prepared to proceed upon the basis that this Court might approach the application in the light of the less stringent tests that apply in the case of a person who is on remand pending sentence and who has not lodged and does not contemplate lodging a notice of appeal. Notwithstanding that I am prepared so to do and notwithstanding that I have read and I hope given due consideration to the various subjective matters to which Mr Bodor has directed our attention in both the affidavits which have been filed on behalf of the applicant and in the confidential exhibit to which the President has referred, I do not think that this is a case in which a right to bail has been made out. I cannot avoid the conclusion, in the light of the material which I have read, that there is at the very least a significant possibility, if not a degree of inevitability, about the prospect of a custodial sentence for a significant period. I would join with the President in rejecting the application. Stein JA I also agree. Putting to one side the fact of the appeal should I be permitted to do so and the content of s30AA of the Bail Act, I am unpersuaded bail should be granted. It seems to me from what we have heard and seen a custodial sentence is highly likely. Mason P The orders of the Court are as follows: 1. Application for bail refused. 2. Direct that exhibit A be placed in a sealed envelope, delivered to the custody of the Registrar of the Court of Criminal Appeal and not be made available for inspection by any person unless by order of a judge of appeal. Counsel for the claimant: P Bodor QC Solicitors for the claimant: John Bettens & Co Counsel for the opponent: R Hulme Solicitors for the opponent: Director of Public Prosecutions