Regina v MFA [2002] NSWCCA 49

New South Wales Court of Criminal Appeal

CITATION : Regina v MFA [2002] NSWCCA 49 FILE NUMBER(S) : CCA 60331/2000 HEARING DATE(S) : 4 March 2002 JUDGMENT DATE : 4 March 2002

PARTIES : Regina MFA JUDGMENT OF : Stein JA at 20; Dowd J at 19; Buddin J at 1

LOWER COURT JURISDICTION : Court of Criminal Appeal LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : LMB Lamprati (Crown) TS Corish (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphries (Applicant) CATCHWORDS : Application for bail pending determination of Appeal to High Court - "special or exceptional circumstances" LEGISLATION CITED : Bail Act 1978 Chew v The Queen (No2) (1991) 65 ALJR 19 Marotta v The Queen (1999) 73 ALJR 265 CASES CITED: Parsons v R (1998) 72 ALJR 325 Robinson v R (1991) 65 ALJR 519 R v Velevski [2000] NSWCCA 445 DECISION : Bail granted upon agreed conditions.

IN THE COURT OF CRIMINAL APPEAL 60331/00

STEIN JA DOWD J BUDDIN J

4 MARCH 2002 REGINA v MFA Judgment 1 BUDDIN J: The applicant seeks bail pending the hearing of his appeal to the High Court. 2 On 22 March 2002 following a trial before Judge Ford and jury, the applicant was convicted of the following offences: (1) Assault and commit act of indecency upon a male person, being at the time of the offence under the age of 16 years, namely 15 years of age. (2) Homosexual intercourse with the same person between the age of 10 and 18 years, namely 15 years of age. 3 He was sentenced in respect of the first matter to a fixed term of imprisonment for two and a half years to commence on 22 March 2000 and to expire on 21 September 2002 and in respect of the second matter to a period of imprisonment for three and a half years to commence on 22 March 2000 and to expire on 21 September 2003 with a non-parole period of 2 years 6 months to commence 22 March 2000. 4 The applicant was acquitted of seven other counts in the same indictment alleging sexual misconduct with the same complainant. 5 Thereafter he appealed to this Court. On 19 December 2000 he was released on bail pending determination of that appeal. 6 On 21 March 2001 the Court delivered judgment. The applicant's appeal against conviction on both counts was dismissed. An appeal against the sentence in respect of the second matter was also dismissed. An appeal against sentence in respect of the first matter was upheld and the sentence reduced. This did not affect the overall sentence imposed. 7 As a consequence of the applicant having been on bail from 19 December 2000 until 21 March 2001, the dates for expiration of the head sentence and non-parole period have been adjusted by the Department of Corrective Services. The applicant will now be eligible to apply for parole on 22 December 2002. 8 On 1 May 2001 the applicant filed an Application for Special Leave to Appeal in the High Court of Australia. On 15 February 2002 the Court granted special leave. 9 The Court of Criminal Appeal may grant bail to any person accused of an offence if, in connection with the offence an appeal from the Court of Criminal Appeal is pending in the High Court - Bail Act 1978, s 30(e) "Person accused" includes a person convicted of an offence (Bail Act s. 4(2)(a)) and includes a person in respect of whom an appeal to the High Court is pending s.4(2)(c). 10 Such bail however shall not be granted by the Court of Criminal Appeal unless it is established that special or exceptional circumstances exist justifying the grant of bail (Bail Act 1978, s 30AA). 11 The relevant principles to be applied in determining whether bail should be granted in such circumstances were enunciated by this Court in R v Velevski [2000] NSWCCA 445. 12 In Velevski the Court considered that a convenient method of assessing whether special or exceptional circumstances existed was to consider the factors outlined by Callinan J in Marotta v The Queen (1999) 73 ALJR 265 at [18] of his Honour's judgment. Such an approach also commends itself as being appropriate in the present case. 13 In support of his submission that special or exceptional circumstances exist, counsel for the applicant did not point to any one individual feature of the case as being decisive. Rather it was submitted that there were a number of matters which in combination were sufficient to satisfy the test. 14 The list included the following matters: