Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Miles v R [2012] NSWCCA 88 Hearing dates: 1 May 2012 Decision date: 01 May 2012 Before: Hoeben JA at [1] RS Hulme J at [2] Schmidt J at [8] Decision: Application for bail be dismissed. Catchwords: BAIL PENDING APPEAL TO COURT OF CRIMINAL APPEAL - bail - bail review - unrepresented litigant - whether special or exceptional circumstances existed Legislation Cited: Bail Act 1978 Crimes Act 1900 Cases Cited: Petroulias v R [2010] NSWCCA 95 R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270 R v Wilson (1994) 34 NSWLR 1 Category: Principal judgment Parties: Keith Miles (Applicant) Crown (Respondent) Representation: Counsel: Mr PG Ingram SC (Respondent) Solicitors: Applicant: (self represented) Respondent: S Kavanagh, solicitor for Public Prosecutions File Number(s): 2006/8527 Publication restriction: No Decision under appeal Jurisdiction: 9111 Date of Decision: 2012-02-02 00:00:00 Before: Fullerton J File Number(s): 2006/8527 EX TEMPORE Judgment 1HOEBEN JA: I agree with the reasons of Justice Schmidt and with the observations of Justice Hulme. I also join in Justice Hulme's recommendation to the Department of Corrective Services that it provide reasonable assistance and facilities to allow the applicant to prepare his appeal. Otherwise I agree with the orders proposed by Justice Schmidt. The orders of the Court will be those proposed by Justice Schmidt. 2RS HULME J: I agree with the orders proposed by Schmidt J and substantially with her Honour's reasons. I would, however, add some remarks of my own. One of the matters referred to in s 32 of the Bail Act and which the Court is required to take into account in considering whether to grant bail is the interests of the applicant having regard to the needs of the person to be free to prepare for the person's appearance in Court or to obtain legal advice or both. Those needs are obviously greater in circumstances such as those we are informed exist here where the Legal Aid authorities have declined to assist the applicant in his appeal. Persons charged and persons convicted who have lodged an appeal are entitled to prepare their case or have their case adequately prepared for consideration by courts. 3Recently I had occasion to grant bail to someone who would not otherwise have received it because on the evidence in that case the Corrective Services Department was not providing reasonable facilities for the applicant to prepare his case. The applicant today makes a similar complaint. He subpoenaed from the Corrective Services Department his file and, although it has not been formally tendered, in anticipation of the hearing today I skimmed through the many hundreds of pages which were there. 4It is apparent that since December of last year the applicant has made a number of representations to the authorities for access to a legal library or cases contained therein and for time in which to prepare his appeal. Although in the documentation it is clear that to some degree the applicant's requests have received favourable treatment, it is by no means apparent that he has been provided with reasonable time and facilities. The limited evidence which the applicant put before the Court in this connection was not such as to inspire or require a response by the Corrective Services Department and accordingly I make no concluded judgment on the topic. However, what I have seen does tend to reinforce the impression I have derived in other cases that the Corrective Services Department do not provide what an outsider would regard as reasonable facilities for someone such as the applicant in the circumstances that he is in. 5The Department must realise that if the only way that an accused person or appellant can prepare his case is by being granted liberty then that is the course which the Court might have to take. 6As I have indicated, I express no concluded view in this case. I merely wish to record that what I have seen is a cause for concern and I would urge the Department to ensure that the applicant is provided with sufficient time and sufficient facilities in which to prepare his case. That is, of course, not a suggestion that the Department has to provide the applicant with whatever in those respects he may require. Clearly the custodial authorities have other matters which they must bear in mind. 7There is another matter to which I refer because it also has a bearing on the topic. The applicant has complained that he has been hampered in his preparation by frequent moves from one gaol to another. A study of his file suggests that the Corrective Services Department has not found the applicant an easy person to deal with. That said his custodial history shows that since 2007 he has been moved some eighteen times between one corrective institution and another and that since October of last year he has been moved six times. It is difficult to believe that this is an efficient use of gaol resources and certainly it adds support to his complaint that he has been unduly hampered in the preparation of his case. I find it hard to believe that the number of changes in his correctional services centre over the period can reasonably be justified. That said I have indicated that I agree that the appeal should be rejected. 8SCHMIDT J: The applicant seeks a review of a bail determination made by Fullerton J on 2 February 2012, under s 45(1)(b) of the Bail Act 1978. The Crown opposes bail being granted. The applicant appeared unrepresented before Fullerton J and on appeal, as he explained because he has been refused legal aid. 9The applicant was charged with three offences under s 61I of the Crimes Act 1900, of having sexual intercourse without consent, in July 2005. In 2007, he was tried by a jury before Conlon DCJ. He was acquitted of one count and convicted of the other two. The applicant was remanded in custody and on 1 November 2007 he was sentenced to two partly accumulated prison terms of 7 years and 6 years, with non-parole periods of 5 and 4 years respectively. His earliest release date is 29 June 2012, although on his case he is unlikely then to be released on parole. 10The applicant first filed a notice of intention to appeal on 8 September 2008. By a further notice filed on 14 October 2008 the appeal was abandoned. A further notice of intention to appeal was filed on 15 February 2011 and an application for leave to appeal was filed on 11 November 2011. Thirty one grounds of appeal were there advanced, including that: * the verdict was unreasonable and unsafe; * that the trial judge erred in law: * in not applying 'due process' of Court procedure * in not calling a voir dire * in not directing the jury as to the unreliability of the complainant's evidence; in not giving a character warning; and not giving a direction in relation to delaying complaint * in misdirecting the jury as to relationship evidence and inferences * in allowing prejudicial, biased and irrelevant testimony to be given by Crown witnesses * in allowing the Crown to lead witnesses and put an ex officio charge on the indictment * in imposing a time constraint on the jury * in not instructing the translator to repeat 'word for word' what was expressed by the complainant * in allowing a witness to be present before giving evidence * failure of the applicant's counsel: * to object to irrelevant and prejudicial evidence * in relation to principles governing a fair trial * to cross-examine and test Crown witnesses * to object to various matters * to adequately rebut the Crown's expert evidence * to explain why character evidence was not led * to 'deprive' the applicant from testifying * to advance certain submissions 11An affidavit of 20 October 2011 providing reasons for the grant of leave to appeal out of time accompanied the notice of appeal. There the applicant gave an extensive explanation of his circumstances prior to the commission of the offences of which he was convicted; his compliance with bail conditions prior to conviction; his experiences while in custody, including hospitalisation; his diagnosis of suffering 'schizophrenia with persecution complex'; ongoing unwanted medication up until 2009; the steps he had subsequently taken to pursue his appeal; the difficulties he had encountered; and the need for him to pursue certain legal studies, in an accounting course which he was undertaking. 12On 15 December 2011, Hidden J refused an application for bail. On 2 February 2012, Fullerton J refused a second application. 13Fullerton J observed in her judgment that it was not sufficient for the applicant to show that he had an arguable ground of appeal, it was necessary for him to show that his conviction will almost certainly be quashed. Her Honour noted that the applicant sought to advance 31 grounds of appeal, but she was not persuaded that any one of these grounds, even when read together, supported any prospects of success, much less high to extraordinary prospects of success. Her Honour was also not persuaded that the applicant's need to be at liberty to prosecute his appeal, because of limited facilities available in jail, justified the grant of bail. 14The appeal is next listed before the Registrar of this Court on 10 May 2012, when a hearing date is likely to be set. 15On 17 April 2012, the applicant filed a number of documents, including a document entitled 'Application for review of Bail refusal'. 16The applicant has filed further documents, including a summary of argument for grounds of appeal; grounds of appeal, where at one point 11 grounds are articulated and at another, 16 grounds of appeal. These raise some, but not all of the matters raised in the original grounds, as well as various other issues, including for example, complaints about a tainted police investigation, which are said to have shifted the burden of proof to the applicant; a failure to discharge the jury; and a prejudicial summing up. 17This Court has power under s 30(a) of the Bail Act to grant the applicant bail, given the pending appeal. Under s 30AA such bail may only be granted, however, if it is established that 'special or exceptional circumstances exist justifying the grant of bail'. In R v Wilson (1994) 34 NSWLR 1 it was explained by Kirby P, with whom Sheller JA agreed at 6, that 'the applicant must be most likely to succeed'. Hunt CJ agreed, adding: "In R v Southgate (1960) 78 WN (NSW) 44, this Court, when considering an application for bail, said (at 44) that, where the guilt of the appellant has been established by the jury's verdict in what must be taken - until the contrary be shown - to have been a trial properly conducted and without error of law, it is most unusual that he should be admitted to bail pending the determination of his appeal. In Chamberlain v The Queen (No 1) (1983) 153 CLR 514, Brennan J said (at 519-520) that to grant bail pending an appeal from a conviction is to whittle away the finality of the jury's verdict and to invest it with a provisional quality, thus attacking the central feature in the administration of criminal justice. It was for these reasons that the common law required an appellant to demonstrate special or exceptional circumstances in order to obtain bail pending his appeal; the authorities are discussed in R v Hilton (1987) 7 NSWLR 745 at 746-747, 752. It is that requirement which is now enshrined in s 30AA. In R v Smith (Court of Criminal Appeal, 18 May 1993, unreported), I said (at 2) that, bearing in mind what was said in R v Southgate, it has to have an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application. Where the prospects of success on the appeal are put forward as a special circumstance, I said (at 2-3), what must be established is a ground of appeal which is certain to succeed - and one which can be seen without detailed argument to be certain to succeed. It is not sufficient to show a merely arguable ground of appeal, or even one which has a reasonable prospect of success. Agreement was expressed with my views in R v Olivier (Court of Criminal Appeal, 15 September 1993, unreported) at 60, by Finlay J (with whom Handley JA and Sheller JA agreed)." 18 In Petroulias v R [2010] NSWCCA 95 Barr AJ, with whom Hodgson JA and Rothman J agreed explained at [34]: "While I appreciate that the Court must look at the aggregate effect of all the matters relied on as constituting special or exceptional circumstances justifying the grant of bail, it is worth noting that, at least where the grounds of appeal are put forward as the only or the principal factor to demonstrate special or exceptional circumstances, an applicant has to show much more than that the grounds seem arguable." 19The matters advanced by the applicant in support of the application for bail in the written application which he made to this Court, included that he had not been given a fair hearing by Fullerton J, who had placed him at ill ease by her negative attitude, he being an indigent applicant; that her Honour had belittled him and cut him short, inhibiting him from putting his case; that she had commented that his appeal had no chance of success; and had failed to give him courtroom courtesy. He also foreshadowed that he would rely on medical evidence. 20The applicant's complaints about the hearing before Fullerton J are not strictly relevant to the application before this Court, given that this is a fresh hearing of the application for bail (see Petroulias v R [at [13]). The effect of the provisions of s 30AA of the Bail Act, is that this Court is only empowered to grant the applicant bail if he establishes that special or exceptional circumstances justifying the grant of bail exist. The transcript of the hearing before Fullerton J was, however, put before us. 21It is convenient to observe that the complaints advanced as to the hearing before her Honour had no foundation. Her Honour commenced by explaining to the applicant her understanding of the circumstances in which he came to make his application, and advising him as to what he had to establish, in order to succeed. She said that it would not assist him to simply recite the grounds of his appeal, but explained that he had to show, as she finally paraphrased the test, that his appeal was virtually certain to succeed . She then listened for a considerable time to the submissions which the applicant advanced, without any interruption, before advising him that a number of matters which he wished to advance were not relevant to his bail application. Before giving her decision she asked the applicant whether there was anything further which he wished to put and he advanced a submission as to his personal circumstances. In those circumstances, in so far as these matters might be considered relevant, that the applicant has a basis to complain about her Honour's approach to his application, may not be accepted. 22The applicant's written submissions in support of the application for bail referred to various articles concerning the conduct of criminal trials, as well as numerous longstanding authorities as to the circumstances in which convictions will be set aside by an appellate court such as this, when verdicts are found to have been unsafe or unsatisfactory, the Court having made an independent assessment of the evidence. The submissions also addressed the proper approach of a jury to evidence led at a trial. The applicant also addressed the provisions of s 30 and 30AA of the Bails Act, submitting that under s 25 and s 45 of that Act, the Supreme Court's power to grant bail was unlimited. 23The applicant relied on R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270 at [14] - [15], to argue that there were other circumstances, apart from the prospect of success on appeal, which warranted him being granted bail. There it was observed: "14 It was argued on behalf of the applicants that the grant of special leave is an indicator that the appeal to the High Court "is most likely to succeed" and that "there is a real prospect that the conviction might be set aside". In our opinion this overstates the position. This Court has been reminded by the Crown that it has been said that bail pending appeal will be granted only where the ground of appeal is so strong that it is virtually "certain to succeed", and obviously so: R v Wilson (1994) 34 NSWLR 1. We do not accept that s30AA is so limited. 15 The judgment which has frequently been cited was, in fact, a minority position in Wilson. In Wilson, Kirby P, with whom Sheller JA agreed, said: "... it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed." It is to be noted that, in that passage, Kirby P and Sheller JA seem to envisage that there may be grounds other than the merits of the appeal which would satisfy the s30AA test. Where the application is based only on the ground of the merits of the appeal, the passage has application but these remain open to the possibility that there are potentially other circumstances that might merit the grant of bail." 24The applicant argued that this was such a case. He submitted that a grant of leave to appeal may be considered to be an indicator that his appeal would succeed and that it would be accepted that there is a real prospect that his conviction might be set aside. The difficulty with this submission is that the applicant has not been granted such leave and thus, no such indicator exists. 25The applicant also relied on other circumstances as warranting a grant of bail in his case, including his impending eligibility for parole; the absence of any prior criminal record; his compliance with bail conditions prior to conviction; the return of the complainant to her home overseas; and the findings of the trial judge that he had no prior record, that he was a person of good character, that he was unlikely to re-offend and that he had significant prospects of rehabilitation. He proposed bail conditions as to residence and surrender of his passport, as being appropriate in his personal circumstances, to warrant his release on bail pending the hearing of his appeal. He also relied on his experience of being frequently moved between six correctional facilities while in custody, periods of segregation; restricted phone and computer access; the lack of co-operation which he received from Departmental staff in relation to the provision of precedents and preparation of his appeal; obstructionist behaviour in not acceding to his inmate requests; and precluding him from enrolling in certain courses. The applicant subpoenaed certain documents from the Department of Corrective Services to provide a foundation of these submissions. 26In his written submissions summarising his arguments in support of his grounds of appeal, the applicant also referred to numerous authorities, to support the alleged errors which he seeks to establish on appeal. The Crown's case was that all the applicant had done was to present contentions, many of which could be demonstrated to be palpably inaccurate, or without merit, if a proper examination of the transcript were undertaken. That exercise was not attempted, but the Crown's submissions explained why none of the grounds which the applicant addressed in his further submissions would be established, having in mind what occurred at the trial. The application must be refused 27In my view the application must be refused, the applicant not having met the onus which falls upon him to establish the existence of the necessary special or exceptional circumstances. 28Under s 32(1)(b)(ii) of the Bail Act, the needs of the applicant to be free to prepare for his appearance in court or to obtain legal advice is one of the matters to be taken into account in determining an application for bail. That incarceration has a negative effect on the applicant's ability to prepare for the hearing of his appeal may well be accepted. Of itself, however, this cannot establish that the special or exceptional circumstances which s 30AA requires be shown, exist. 29The applicant is an articulate, educated man. He has advanced lengthy, lucid submissions to support his bail application. When this is considered together with the steps which the applicant has taken to pursue his appeal and bail applications, it is not open to conclude that he has been so inhibited in putting his case, that thereby special or exceptional circumstances have been shown to exist. 30The other matters on which the applicant relied, such as his criminal history, his compliance with earlier bail conditions, the complainant's present whereabouts and his family circumstances, are all matters which would support a grant of bail, were this an ordinary bail application. These matters cannot, however, establish that special or exceptional circumstances exist. Nor has the applicant demonstrated that his appeal is likely to succeed. 31That the applicant has arguments to advance in respect of the various matters which he wishes to pursue, is apparent. The applicant submitted that the ground of appeal on which he is likely to succeed is that relating to the ex officio charge. That was a charge of which he was acquitted. Even so, he complained that as the result of the laying of that charge, the trial had been unfair. The applicant also identified other grounds likely to succeed to be that there was an unreasonable verdict and the failure to give directions in relation to delay in complaint and other matters, as well as a tainted police investigation. The applicant's written submissions are replete with authorities on which he wishes to rely to make out that and other grounds which he wishes to advance. Some of the grounds advanced may be arguable, but their merits will plainly require an examination of what in fact occurred at the trial. On the case advanced the applicant has not established that any of the grounds advanced are likely to succeed. 32In those circumstances it must be concluded that the necessary special or exceptional circumstances have not been shown to exist and the application must be refused. Order 33For these reasons, I would order that the application for bail be dismissed. 34I also indicate that I join in the recommendation which has been made to the Department. ********** 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. Decision last updated: 07 May 2012