New South Wales Supreme Court CITATION : R v Claxton [1999] NSWSC 653 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 72314/99 HEARING DATE(S) : 29 June 1999 JUDGMENT DATE : 29 June 1999 PARTIES : Bruce Alan Claxton (Applicant) Regina (Respondent) JUDGMENT OF : Dunford J COUNSEL : RD Ellis (Respondent / Crown) SOLICITORS : Mark Rumore Solicitor (Applicant) SE O'Connor (Respondent / Crown) CATCHWORDS : BAIL - Appeal against conviction adjourned. ACTS CITED : Bail Act 1978 CASES CITED : R v Wilson (1994) 34 NSWLR 1. R v Lance Smith (Hunt CJ at CL, 18 May 1993) DECISION : Application dismissed, bail refused. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J TUESDAY 29 JUNE 1999 72314/98 - R v Bruce Alan CLAXTON JUDGMENT (On application for bail) 1 HIS HONOUR: This is an application for bail by Bruce Alan Claxton who was successful this morning in obtaining an adjournment of the hearing of the appeal against his conviction for receiving, following his trial by a jury, for which he was sentenced to penal servitude for a minimum term of one year commencing on 3 October 1998 with an additional term of one year. Unless the conviction is set aside, the minimum term of the sentence will expire on 2 October this year, in approximately three months time; and the adjournment having been granted, it is unlikely that his appeal will be heard before then. He is also serving the balance of an additional term pursuant to an order of the Parole Board which expires on 19 September 1999. The applicant tells me that he has been "led to believe", whatever that might mean, that if he is granted bail on this matter the Parole Board will re-convene to again assess his eligibility for parole, and he may be successful or he may not. 2 The applicant, having been convicted, there is no presumption in favour of bail: ss 8(2)(a)(iii) and 9(2)(b) of the Bail Act 1978, but he may nevertheless be granted bail: s 13. However, as he is an appellant to this Court, s 30AA applies and bail will not be granted unless it is established "that special or exceptional circumstances exist" justifying the grant of bail. Special and exceptional circumstances, it has been held, can include the fact that if bail is not granted the whole or a substantial part of the sentence will have been served before the appeal is determined. 3 It has also been held that special or exceptional circumstances may be found in a ground of appeal which is certain to succeed: see R -v- Wilson (1994) 34 NSWLR 1 at 6, R -v- Lance Smith, (Hunt CJ at CL, 18 May 1993). 4 This is certainly not an appeal where the prospects of success can be regarded as high. It is true that the reason for the adjournment of the appeal this morning was in no way the fault of the applicant, the reason being that counsel assigned by the Legal Aid Commission to assess his prospects of success in the appeal has not yet attended to the matter. There is a further consideration, namely, that he has been informed that his daughter, Bianca, was raped over the weekend. Bianca is seven years old and lives with the applicant's wife from whom he is separated and who has or is about to commence divorce proceedings. He wishes to render her support. 5 Even if he was granted bail, it would be a couple of weeks before the Parole Board could be re-convened, even if it were then minded to release him on further parole. On the other hand he may be entitled, and I express no view on this, but he may be entitled to compassionate leave if he needs to visit his daughter in these circumstances. I do accept that special or exceptional circumstances exist in that if not granted bail he will have served virtually the whole sentence before the appeal is heard, but that does not necessarily entitle him to bail. 6 It then becomes necessary to consider the criteria in s 32 including under subs (1)(c)(iii) the likelihood that he will or will not commit any further offences whilst at liberty on bail. 7 The applicant has an appalling record, particularly for offences of this nature. He has an extensive record of offences of dishonesty between 1970 and 1984 when he was sentenced to twelve years penal servitude on three counts of assault and rob. 8 Since 1993, there have been a number of offences involving driving unregistered and uninsured motor vehicles whilst unlicensed, but there have also been a number of dishonesty offences. 9 On 20 January 1994 at Windsor Local Court he was convicted of receiving. On 15 December 1995 at the Redfern Local Court he was convicted of goods in custody. On 5 March 1996 at the Wollongong District Court he was convicted of larceny of a motor vehicle and possess implements capable of entering a conveyance. 10 On 15 April 1996 at the Wollongong District Court he was convicted of two counts of receiving, two of assault and one of attempt to steal. On 19 April 1996 at the Blacktown Local Court he was convicted of stealing. On the last mentioned matter, he was sentenced to a fixed term of imprisonment of twelve months to commence on 4 September 1996, so that he was released on 3 September 1997. 11 The offence of which he has been convicted and which is the subject of the appeal is alleged to have been committed between 18 and 27 September 1997, some three weeks after his release from custody. In those circumstances, I would be very concerned that, if released on bail, he would commit further offences whilst on bail, and I would regard those offences as serious because although they do not involve physical violence or sexual assault, they do disrupt the lives of people whose vehicles and other goods are taken or removed. 12 I may have been persuaded to grant bail if I, on a brief assessment, considered he had substantial grounds for appeal but I cannot find any. In written submissions filed by him and, obviously, with legal advice and subject to the consideration that if legal representation is granted, the grounds of appeal may well be amended or expanded, he relies on what appears to be three main grounds; firstly, that the trial judge failed to adequately explain to the jury the onus of proof and the elements of the charge of receiving, secondly, that the directions on circumstantial evidence were inadequate, and thirdly, that the Crown failed to provide adequate proof that the horse float in question had been stolen. 13 I can see absolutely no deficiency in the trial judge's directions to the jury in relation to the onus of proof, the elements of the charge of receiving, or circumstantial evidence; they appear to be in what might be called the standard forms, and are more than adequate. 14 In relation to the proposed ground that the Crown failed to provide adequate proof that the article was stolen, there was considerable evidence from the owner of the horse float in question as to distinguishing features of the item that had been stolen, and she identified these items on the horse float which Mrs Zaiter had purchased from the appellant. 15 I do not regard the grounds of appeal as having any strong or reasonably strong prospects of success. In all the circumstances, the application is dismissed and bail is refused. 16 I order that the hearing of the appeal be expedited and the matter is to be placed in the first available callover. ********** Last Modified: 07/09/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.