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: 'Forming an exception or unusual instance; unusual; extraordinary.' [19] Section 9C does not constitute a prohibition on granting bail in cases of murder. Cases of alleged murder, of course, can vary considerably. It is no doubt for that reason that in the second reading speech, emphasis was placed upon the need for a case-by-case examination. The context in which the term 'exceptional circumstances' is used is relevant to the construction of the term. The statutory context in which the term 'exceptional circumstances' appears in s.9C involves the existence of a murder charge against the applicant. Elsewhere in the Bail Act, in s.30AA, the term 'special or exceptional circumstances' is used in the context of an applicant who has been convicted of an offence on indictment and is appealing to the Court of Criminal Appeal. That difference in statutory context is not insignificant involving, as it does, bail determinations at different points along the path of the criminal justice process. [20] It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail." 8 The Crown, which opposes bail, has referred the Court to the judgment of the Court of Appeal in the Commonwealth DPP v Germakian [2006] NSWCA 275, in which the Crown suggests the comments of the Court of Appeal were to a different effect than the comments of Johnson J. In Germakian, Tobias JA, whose reasons for judgment are the reasons of the Court, discussed the relationship between s 8A and s 32 of the Bail Act and said: "… in a case to which s8A applies, such as the present, the s32 considerations to which I have referred do not have the force that they otherwise would have in cases to which s8A would be inapplicable. As was Hunt CJ at CL observed in Kissner, by enacting s8A with respect to an offence such as the present, the legislature intended the court to place less weight upon the circumstances which are common to all applicants for bail and more weight upon the strength of the Crown case against the applicant in the particular case under consideration. Accordingly, given the heavy burden that rests upon an applicant to satisfy the court that bail should be granted in a case to which s8A applies, and that the application must be 'somewhat special' if the Crown case in support of the charge is strong, the mere fact that a consideration of the relevant s32 considerations would ordinarily support the grant of bail is not of itself sufficient to displace the presumption against bail in relation to offences to which s8A applies." 9 These matters were discussed by me at some length in two judgments: R v Daron John Wright (unreported, 7 June 2005) and R v PDR (unreported, 1 August 2007). In Wright in dealing with s 9D of the Bail Act I said: "[18] Turning therefore to the provisions of sub-section 9D(1) of the Act, as already stated, there is a requirement not to grant bail in circumstances where the person is a repeat offender unless the court is satisfied that exceptional circumstances justify the grant of bail. The question which arises is the meaning of the expression 'unless the … Court is satisfied that exceptional circumstances justify'. [19] … Section 32 of the Act provides that the Court must take into account certain considerations and only those considerations in determining the question of whether or not to grant bail. Section 32 has been described as a mandatory, exhaustive and exclusive statement of the criteria to be considered in bail applications. (See R v Hilton (1987) 7 NSWLR 745 at 750B). [20] The requirements of s.32 of the Act are requirements as to the grant of bail and considerations appropriate thereto. Section 9D of the Act, on the other hand, deals with particular issues associated with repeat offenders and it seems that factors which would make an applicant an exceptional case from the point of view of a repeat offender may fall outside the criteria in s.32 of the Act…. … [22] … The use of the term 'exceptional circumstances' means that the circumstances need to be exceptional but not necessarily special. 'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial. [23] The Macquarie Dictionary defines the word 'exceptional' as: '1. forming an exception or unusual instance; unusual; extraordinary. 2. exceptionally good, as of a performance or product. 3. exceptionally skilled, talented or clever.' [24] The Oxford English Dictionary defines the word 'exceptional' as: 'Of the nature of or forming an exception; out of the ordinary course; unusual, special.' [25] Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or situation out of the ordinary or unusual … sub-section 9D(1) of the Act … [will be satisfied]. 'Special' on the other hand, seems to imply a unique situation or one which pertains only to that individual. [26] Once one is satisfied of the 'exceptional circumstances' one is drawn to the presumptions otherwise contained in the Act and the provisions of s.32 on the question of the grant of bail…" 10 The above discussion occurred in the course of discussing s 9D of the Bail Act, which relates to repeat offenders. Different considerations arise in relation to s 9C, which deals with the serious offence of murder. 11 However, it is clear from the above citations that, in my view, there is no divergence of view, as suggested by the Crown between the expressions of the law in Germakian and that in Young. Mere satisfaction of the balancing exercise in s 32 of the Bail Act will not satisfy the requirements of either s 9C or s 9D of that Act, but exceptional circumstances may arise from an accumulation of factors otherwise described in s 32 of the Act. 12 In this case there is evidence from Professor Yeo as to the needs of Mr Jacobs and the danger to his health from his imprisonment. It is clear from that evidence, which I accept, that Mr Jacobs' medical and health needs are not being met and his health is seriously deteriorating. Professor Yeo stresses that these are necessities. However, these health issues, without more, would not, in my view, satisfy the test in the Act for exceptional circumstances. 13 This murder, if it be murder, occurred when the estranged wife of Mr Jacobs came to his home to collect their child. Mr Jacobs has no prior criminal record and there is evidence of violence, previously and on this occasion, by the deceased toward Mr Jacobs. With the exception of the possibility of the threat to the integrity of the child's evidence, there is no real threat to the community by Mr Jacobs' conditional liberty. That statement does not detract from the seriousness of the charge. 14 Notwithstanding the statement suggesting self defence, it cannot be said that the Crown case is weak, but guilt is a matter ultimately for a jury. On the basis of the very strict, almost house arrest conditions, that I will impose, I am satisfied that the child and the evidence of the child can be protected. 15 As a matter of abundant caution I make clear that the other provisions of s 32 of the Bail Act satisfy me that this applicant, who has no prior criminal record, should be granted bail on very strict conditions. ********** 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.