R v Gregory William JACOBS [2008] NSWSC 417

New South Wales Supreme Court

CITATION : R v Gregory William JACOBS [2008] NSWSC 417

HEARING DATE(S) : 29 April 2008

JUDGMENT DATE : 30 April 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

DECISION : Conditional bail granted.

CATCHWORDS : CRIMINAL LAW - bail - murder - accused partial paraplegic - medical needs - meaning of "exceptional circumstances" - bail granted.

LEGISLATION CITED : Bail Act 1978

CATEGORY : Separate question

Commonwealth DPP v Germakian [2006] NSWCA 275 CASES CITED : R v Daron John Wright (unreported, 7 June 2005) R v PDR (unreported, 1 August 2007) R v Young (2006) NSWSC 1499

PARTIES : Regina (Crown) Gregory William JACOBS (Applicant)

FILE NUMBER(S) : SC 2008/5196

COUNSEL : W Dawe QC (Applicant)

SOLICITORS : Director of Public Prosecutions (Crown) Greg Walsh & Co Solicitors (Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ROTHMAN J

30 April 2008

2008/5196 R v Gregory William JACOBS

EX TEMPORE JUDGMENT - Application for bail

VIDEO LINK TO PARKLEA CORRECTIONAL CENTRE 1 HIS HONOUR: Gregory William Jacobs seeks bail. He has been charged with murdering his wife by strangulation and has pleaded not guilty by reason of self defence and/or mitigates the culpability of the killing by reason of provocation. 2 Mr Jacobs is a partial paraplegic. He suffered an accident while waterskiing in 1982, which, after some rehabilitation, was aggravated by a motor vehicle accident in 1997. He can walk but only up to approximately 50 metres and, even then, with some difficulty. 3 The issue before the Court is whether, in terms of s 9C of the Bail Act 1978, the Court is satisfied that "exceptional circumstances" justify the grant of bail. If not the Court is required to refuse bail. 4 It must be noted that a bail application is not a time at which guilt or innocence is decided. I have said on occasion, as have other judges, that in one sense the Crown case is at its strongest in a bail application. However, the common law and the democratic system under which we live presumes innocence until guilt is proven beyond a reasonable doubt. There is, therefore, generally a presumption in favour of the liberty of the subject. 5 There are exceptions to that presumption based philosophically on the threat to the community posed by persons charged with serious offences. 6 Murder is pre-eminently such an offence and the legislature requires exceptional circumstances justifying bail in order for bail to be granted. 7 What then are the exceptional circumstances? Mr Jacobs relies on the comments of Johnson J in R v Young (2006) NSWSC 1499. His Honour at paras 18, 19 and 20 discussed the concept of exceptional circumstances and said: "[18] The concept of exceptional circumstances is, of course, not defined in the Bail Act 1978. It is a term that is used, from time to time, in statutes to place limits upon the exercise of various powers: cf R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402 at paragraph 12. It is helpful, however, to refer to the ordinary meaning of the word 'exceptional' in the Macquarie Dictionary: