New South Wales Court of Appeal CITATION: Director of Public Prosecutions (NSW) v Louizos [2008] NSWCA 220 HEARING DATE(S): 9/9/08 JUDGMENT DATE: 9 September 2008 JUDGMENT OF: Bell JA at 1; Johnson J at 29; Price J at 30 EX TEMPORE JUDGMENT DATE: 9 September 2008 DECISION: Application dismissed CATCHWORDS: BAIL - review of trial judge's decision to grant bail following conviction before sentence Bails Act 1978 LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995 Supreme Court Act 1970 DPP (Cth) v Germakian (2006) NSWCA 275 DPP (Cth) v Cassaniti [2006] NSWSC 1103 CASES CITED: R v Budiman (1997) 90 A Crim R 548 R v Pakis (1981) 3 A Crim R 132 R v Roberts and Lardner (1997) 97 A Crim R 456 R v Rowe, unreported, Court of Appeal, 24 December 1991 PARTIES: Director of Public Prosecutions (NSW) (Applicant) Freda Louizos (Respondent) FILE NUMBER(S): CA 40281/08 COUNSEL: R Hoenig (Crown) J Doris (Respondent) SOLICITORS: S Kavanagh (Applicant) Hardinlaw, Lawyers (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2008/31/1000 LOWER COURT JUDICIAL OFFICER: GD Woods QC DCJ LOWER COURT DATE OF DECISION: 25/8/08 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40281/08 DC 2008/31/1000 BELL JA JOHNSON J PRICE J TUESDAY 9 MAY 2008 THE DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v FREDA LOUIZOS Judgment 1 BELL JA: This is an application brought by the Director of Public Prosecutions pursuant to s 48 of the Bail Act 1978 (NSW) to review a decision made by his Honour Judge GD Woods QC granting the respondent, Freda Louizos, bail, following her conviction at trial pending the sentence hearing. 2 Sully J granted the respondent bail on 20 October 2006, subject to strict conditions. She has been at liberty on bail since that date. 3 The respondent was charged on or about 4 October with soliciting a man named Williams to murder her former husband, Barry Leslie Bruce. It was not in issue at the trial that Mr Bruce had been ferociously attacked by a man named Denning, who stabbed him repeatedly with a large knife. Denning was in company with Williams at the time of the offence. A third person, Lee Moyes, was also present at the scene, he having driven Williams and Denning to Mr Bruce's home in order to carry out the assault. Mr Bruce was stabbed nine times and left to die at the scene. He survived the assault. 4 It was the Crown case at trial that the respondent approached Williams in January 2006, asking him to kill Mr Bruce. She and Mr Bruce have three children. They separated in acrimonious circumstances in 2001. The respondent's motive for involvement in the offence was said to be her desire to regain custody of all three children and to avoid further intervention by the Family Court in relation to custody arrangements for them. 5 Williams gave evidence for the Crown at trial. His evidence was the subject of a strong warning under s 165 of the Evidence Act 1995 (NSW). His Honour allowed in, over objection, a recording of an intercepted telephone call between the respondent and Williams on 7 September 2006, which was said to be supportive of Williams' version of events. 6 The jury returned its verdict on 25 August 2008. 7 His Honour adjourned the proceedings for sentence to 18 September. He granted bail subject to the following conditions: "1. Attend at Sydney District Court on 18/9/08 for sentence; 2. Report daily to the officer in charge of the police station at Gosford each day between 7am and 7pm; 3. Reside at 59 George Downs Drive, Central Mangrove; 4. Not to approach Barry Bruce except through the medium of a legal representative; 5. Not to apply for a passport or any other international travel document; 6. Not to approach with 3 kms of any international airport or maritime point of international departure from Australia; 7. To undertake to forfeit the sum of $50,000 in the event of failing to attend for sentence." 8 The Crown's application to review the bail determination, dated 26 August, came before Rothman J on 2 September. His Honour referred the matter to this court, pursuant to s 51 of the Supreme Court Act 1970, in accordance with the established practice: see R v Rowe (unreported) Court of Appeal, 24 December 1991; R v Budiman (1997) 97 A Crim R 548. 9 Section 6 of the Bail Act provides that bail may be granted in accordance with the Bail Act to an accused person in respect of any one or more of the periods set out therein. Subparagraph (c) provides: "the period of any adjournment or adjournments, including (i) any adjournment or adjournments during the course of the trial; and (ii) any period deemed by s 16 to be a period of an adjournment." 10 Section 16 provides: "For the purposes of s 6(c)(ii), each of the following periods shall be deemed to be the period of an adjournment: ­ (e1) the period between the conviction of the person and the sentencing of the person." 11 The only criteria governing the determination of bail are those set out in s 32 of the Bail Act. 12 The offence of which the respondent has been convicted is provided for by s 26 of the Crimes Act. It is an offence that carries a maximum sentence of 25 years' imprisonment. The presumption in favour of bail does not apply to the offence. Unlike some cases to which we have been referred, including Budiman and, more recently, Commonwealth DPP v Germakian [2006] NSWCA 275, the offence under s 26 is not one attracting the presumption against the grant of bail under s 8A. 13 The position is that an accused person who is not entitled under s 8 or 9 to be granted bail may nevertheless be granted bail: s 13. It is to be noted that the respondent, although now convicted of the offence, is, for the purposes of the Bail Act, defined by s 4(2) to be an accused person. 14 Section 48 of the Bail Act provides: "48(1) The power to review a decision pursuant to this Division (a) may be exercised only at the request of (i) the accused person; (ii) the informant (being a police officer); (iii) the informant or complainant (whether or not a police officer) in the case of bail granted in respect of a domestic violence offence or a complaint for an apprehended violence order under Part 15A of the Crimes Act 1900; or (iv) the Attorney General or the Director of Public Prosecutions; and (b) includes the power to affirm or vary the decision or to substitute another decision. (2) A decision as varied or substituted must be in conformity with this Act. (3) The review of a decision shall be by way of rehearing, and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review." 15 The reasons for his Honour's determination to grant bail have not been taken out. The application for review is supported by the affidavit of Thomas Spohr, to which are annexed a number of documents, including one described as a "Bail Chronology." That document sets out, in a summary way, his Honour's reasons for granting bail. 16 His Honour remarked that, in the normal course of events following a verdict of guilty, bail would be refused pending sentence. His Honour noted that he had a discretion to grant bail in the period of the adjournment, and proceeded to consider the criteria in s 32. He found that it was highly unlikely that the respondent would fail to attend in answer to her bail, observing she had been on bail for a long time. His Honour recorded that it was a case in which the penalty to be imposed would be one of full-time custody. He adverted, in terms, to the protection of the complainant, Mr Bruce. 17 His Honour gave two reasons for departing from the ordinary course and granting bail. The first reason was the interest of the respondent in being free in order to obtain material in preparation for the sentence hearing. The second reason is summarised in the Bail Chronology as follows: "His Honour found that it was appropriate for bail to be granted after considering the necessity for arrangements to be made for the children in this matter. His Honour stated that it was a very unusual case - the eldest child had given evidence, the other children had been in court at various times and some important family discussions would need to be had with the children. While his Honour held that the arrangements and custody of the children would ultimately be a matter for another court, he would grant conditional bail." 18 As will be evident, his Honour addressed each of the considerations to which s 32 directs attention. 19 The Crown Prosecutor advanced the application in this Court on the basis that the power of review under s 48 involves a hearing de novo: R v Pakis (1981) 3 A Crim R 132. In written submissions, the Crown Prosecutor referred to the provisions of s 30AA of the Criminal Appeal Act 1912 (NSW), noting cases in which this Court has considered it appropriate to have regard to the threshold test posed by that section by analogy when dealing with an application for bail following conviction. Budiman was one such case. 20 At the commencement of the hearing, we were informed that the respondent had filed a Notice of Appeal. The submission was initially made that the provisions of s 30AA were thus engaged. 21 Mr Doris, who appears for the respondent, informed the Court that the document filed was a Notice of Intention to Appeal. The Crown Prosecutor conceded in the circumstances that the provisions of s 30AA were not engaged. In light of that concession, it is not necessary to further consider the first-mentioned submission. 22 It is important to understand that the determination in this case was to grant bail for a closed period of less than one month for purposes including the preparation for the sentence hearing. In this situation, the consideration of special or exceptional circumstances justifying the grant of bail under s 30AA, which requires assessment of the prospects of success on appeal, are not apt. This was not the grant of bail pending appeal. 23 It is correct to say that the review under s 48 is in the nature of a de novo hearing and that it is not incumbent on the Crown to identify error in the exercise of the discretion by the trial judge: R v Roberts and Lardner (1997) 97 A Crim R 456 at 457; DPP (Cth) v Cassaniti [2006] NSWSC 1103 per Basten JA at [10]-[15]. It remains that this Court, when dealing with the review of a bail determination by a trial judge, exercises restraint, taking into account the trial judge's advantage in weighing the factors supporting or negating the grant of bail: Budiman per Mason P at 549. 24 In the Crown's submission, the severity of the sentence that the respondent is facing is a consideration of such strength, bearing as it does on the risk of flight, as to demand that bail be revoked. 25 His Honour, as the trial judge, is in a superior position to this Court in assessing considerations of that character. In my view, his Honour's assessment that it is highly unlikely that the respondent will fail to answer bail is a matter to which weight is to be given. I interpolate that the respondent has no criminal convictions and has complied with her conditions of bail to date. She is present on the hearing of the review. 26 The needs of a person to be free for any lawful purpose, a consideration relevant under s 32()(b)(iii), may have a limited field of operation when dealing with an application by a person convicted of a serious offence who is facing the inevitability of a sentence of full-time custody. Nonetheless, his Honour, a very senior judge of the District Court, considered that this was a highly unusual case, in which bail was appropriate. The matter will be back before his Honour in nine days' time. 27 His Honour's reference to the need to make arrangements for the children refers to the circumstance that the three children of the marriage, aged 16, 14 and 11, are currently residing with the respondent. In May 2005, the eldest child stated his desire to live with his father and for a time, it would seem, did so. Since then he has returned to live with the respondent. The Crown called that child at the trial. Leave was sought under s 38 for the Crown to question him as though cross-examining. It is not clear what the full range of facts and circumstances were that his Honour took into account in assessing the needs of the respondent to be at liberty for a short period in order to make appropriate arrangements for the children. It was, as his Honour observed, an unusual case. 28 Mr Doris, who appeared for the respondent, has informed the Court that the matter will be ready to proceed on the respondent's behalf on Thursday of next week. In these circumstances, I am not persuaded that the proper exercise of discretion is to refuse bail. I propose that the application be dismissed. 29 JOHNSON J: For the reasons given by Bell JA, I join in the order which has been proposed by her Honour. 30 PRICE J: I also agree with Bell JA. The principal argument advanced by the Crown was that the charge of which the respondent has been convicted is so serious that the likelihood is that the respondent is unlikely to appear for sentence on 18 September 2008, which is nine days hence. The respondent's compliance with rigid bail conditions since she was granted bail by Sully J on 20 October 2006 suggests otherwise. 31 The trial judge granted bail for a confined period, for the reasons which Bell JA has recounted. This court should proceed with care and due deference to the position of the trial judge. I join in the reasons expressed by her Honour. 32 BELL JA: The order of the Court will be as I have proposed. oOo 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.