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: (a) the fact that special leave has been granted. In Chew v The Queen (No2) (1991) 66 ALJR 221 Toohey J held that the fact that the applicant had obtained special leave to appeal was a relevant factor because it indicated that the appeal was thought to raise some questions of substance and was accordingly not frivolous. As Callinan J observed in Marotta at para. 14 applications for special leave are not liberally granted. It may be recognised however that a grant of special leave is not of itself a special or exceptional circumstance. See Parsons v the Queen (1998) 72 ALJR 1325; Robinson v R (1991) 65 ALJR 519. (b) the fact that a substantial part of the custodial element of the sentence will have been served by the time of the appeal. See Callinan J in Marotta at para. 18. Again this is not of itself a special or exceptional circumstance. However it is relevant to observe that the appeal is unlikely to be heard before the August or September sittings of the High Court given the Court's present commitments and listing arrangements. The material before the Court indicates that the chances of obtaining a hearing date in that period are described as being "possible" but that it cannot be said that it is "likely". In the circumstances the prospect that the matter would be heard and that in addition a decision would be handed down in the matter before the expiration of the non-parole period on 22 December would have to be regarded as somewhat bleak. The uncertainty surrounding the question of when the applicant's appeal might be resolved is urged as being a significant factor in the present application. (c) the applicant was on bail prior to trial, and relevantly, was granted bail pending the appeal to this Court. To have obtained bail in those circumstances clearly indicates that the applicant has, on a prior occasion satisfied the stringent requirements of s 30 AA of the Bail Act. d) the outcome of the appeal, should it be successful will result in the acquittal of the applicant, by reason of an argument inter alia, concerning the inconsistency of the verdicts. Should that occur the applicant will have had, as Callinan J put it in Marotta at para 18, a "hollow victory". In the view of his Honour , there is "no public benefit or interest in the incarceration of people who might turn out to have been wrongly convicted according to law". This is not moreover a case on its face in which there will be any call for a consideration of the application of the proviso. 15 It was faintly suggested by the Crown that a decision of the High Court could however be confidently expected before the applicant's full term had expired. However as Callinan J said in Marotta there is a "real distinction between custody in prison and the head sentence actually imposed". Accordingly as His Honour said "it is not inappropriate to have regard to the non-custodial aspect of a sentence in considering an application for bail". 16 In my view given the most unusual set of circumstances that exist in the present case the applicant has satisfied the requirements of s 30AA of the Bail Act and therefore, made out an entitlement to bail. 17 It is common ground that in those circumstances that the applicant should be granted bail upon agreed conditions. Those conditions the Court is informed are as follows: 1 The applicant to reside at 2 Nymboida Crescent, Ruse. 2 The applicant to surrender his passport (if applicable) and not apply for a further passport. 3 The applicant to be of good behaviour. 4 The applicant to report to the Officer in Charge, Campbelltown Police Station, on Mondays, Wednesdays and Fridays of each week. 5 The applicant not to associate or in any way communicate or attempt to communicate with any Crown witnesses. 6 That he prosecute his appeal to the High Court with due diligence. 7 On the date of judgment of the High Court, the applicant to surrender himself to the Sheriff of the Supreme Court of New South Wales for the purpose of complying with such orders as the High Court may make. 8 That bail be entered before a Sheriff of the Supreme Court of New South Wales or before the Proper Officer of the Court of Criminal Appeal for the State of New South Wales. 18 Stein JA: I agree with Buddin J and the order for bail which he proposes. 19 DOWD J: I also agree. 20 STEIN JA: Accordingly, the Court will grant the applicant bail on the conditions set out by Buddin J a few moments ago. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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