Supreme Court New South Wales Medium Neutral Citation: Seong Won Lee and Do Young Lee v Regina [2012] NSWSC 1168 Hearing dates: 19 September 2012 Decision date: 28 September 2012 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Applications for bail dismissed Catchwords: BAIL - Application for bail pursuant to Bail Act 1978 - special or exceptional circumstances under s 30AA of the Bail Act - principles in respect of post-conviction bail applications - delay arising in the course of a part-heard appeal in which grounds of appeal raise miscarriage of justice - Crown concession as to special or exceptional circumstances - Court to be satisfied that relevant factors taken either individually or in combination exist and support concession made by Crown as to the existence of circumstances under s 30AA of the Bail Act and as to the existence in fact of such circumstances - caution to be exercised in determining whether to stay an order of imprisonment and to grant bail - need to consider both position of applicant to bail and position of the Crown - issues concerning interference with the due administration of criminal justice to be considered in determining what constitutes special or exceptional circumstances - such circumstances not established in the subject applications. Legislation Cited: Bail Act 1978 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985 Evidence Act 1995 New South Wales Crime Commission Act 1985 Cases Cited: Arun Vinayagamoorthy v Commonwealth Director of Public Prosecutions (2007) VCS 265 Chamberlain v The Queen (No 1) [1983] HCA 13; 153 CLR 514 Director of Public Prosecutions v Louizos [2008] NSWCA 271 Director of Public Prosecutions v SKA [2009] NSWCA 51 Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103 Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265 R v CB; MP r R [2011] NSWCCA 264 R v Giordano (1982) 31 SASR 241 Regina v MFA [2002] NSWCCA 49 R v Smith (Court of Criminal Appeal, unreported , 18 May 1993) R v Velevski [2000] NSWCCA 445 R v Wilson (1994) 34 NSWLR 1 Tieleman v R [2004] WASCA 285; (2004) 149 A Crim R 303 United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 Category: Interlocutory applications Parties: Seong Won Lee (Applicant 1) Do Young Lee (Applicant 2) Regina (Respondent) Representation: Counsel: Mr P Hamill SC with Mr S Pararajashingham of counsel (Applicant 1 Seong Won Lee) Mr M Thangaraj SC (Applicant 2) Ms N Adams (Crown Advocate) Solicitors: Nyman Gibson Stewart (Applicants 1 & 2) Solicitor for Public Prosecutions (Regina) File Number(s): 2009/276079 (R v Seong Won Lee) 2009/208798 (R v Do Young Lee) Judgment on APPLICATIONs for bail 1The applicants, Seong Won Lee and Do Young Lee, apply for a grant of bail pursuant to s 30AA of the Bail Act 1978, in circumstances in which an appeal by each applicant is presently part-heard in the Court of Criminal Appeal. 2The applications were heard together on 19 September 2012. Mr P Hamill SC appeared with Mr S Pararajashingham of counsel on behalf of the applicant, Seong Won Lee and Mr M Thangaraj SC appeared on behalf of the applicant Do Young Lee. This judgment accordingly deals with both applications. A. Procedural history 3The notices of appeal by each of the applicants were filed on 18 April 2012. The proceedings were set down for hearing before the Court of Criminal Appeal on 23 August 2012. 4Written submissions were filed on behalf of each of the applicants on 18 April 2012. 5The Crown filed its written submission in respect of each appeal on 14 and 21 August 2012. Prior to doing so, the Director of Public Prosecutions, on 13 August 2012, filed a notice of motion seeking to vacate the hearing date for each appeal, namely 23 August 2012. The basis for that application was the fact that the decision of the Court of Criminal Appeal in R v CB; MP v R [2011] NSWCCA 264 being an interlocutory judgment had only recently come to the Crown's attention. 6That motion came before McClelland CJ at CL on 16 August 2012. The application for an adjournment was refused. 7The Crown filed further written submissions on 21 August 2012 in relation to Ground 1 to each appeal. 8The hearing on 23 August 2012 was adjourned part-heard. The proceedings came before the Registrar on 4 September 2012. The Registrar informed the parties that the Court was prepared to list further hearing dates in September 2012. All parties indicated to the Registrar that further time would be required in order to consider whether there was a need for further evidence and submissions. The Registrar accordingly did not set the proceedings for further hearing in September but relisted for further hearing on 12 and 13 November 2012. 9On the hearing of the present applications, the Crown Advocate stated that she had indicated to the Registrar when the matter was before him that her instructions were that if the only reason for the appeal proceedings not being set down for further hearing in September was to accommodate the Crown's need for time to consider its evidentiary position and for further submissions by the Crown to be prepared, then as the applicants were still in custody, the Crown would agree to "Court of Criminal Appeal bail": Transcript of proceedings: 19 September 2012 at p 2. B. Counts in the indictment 10The applicants, Do Young Lee, and his son, Seong Won Lee, stood trial in the District Court on an indictment charging offences relating deemed supply of a large commercial quantity of prohibited drug, namely pseudoephedrine, and possession of various firearms and weapons. The charges on the indictment all related to items located at premises in Lachlan Street Waterloo on 7 December 2009. The charges on the indictment can be summarised as follows: Count 1:Possession of a prohibited weapon ( a sub-machine gun) without authorisation contrary to s 7(1) of the Firearms Act 1996 Count 2:Possession of a prohibited weapon (a silencer) without authorisation contrary to s 7(1) of the Weapons Prohibition Act 1998 Count 3: Possession of a prohibited weapon (two firearm magazines) without authorisation contrary to s 7(1) of the Weapons Prohibitions Act 1998 Count 4:Possession of a prohibited weapon (a brass catcher) without authorisation contrary to s 7(1) of the Weapons Prohibitions Act 1998 Count 5:(Do Young Lee only) Possession of a pistol (a six chamber revolver) without authorisation contrary to s 7(1) of the Firearms Act 1996. Count 6: Supply of a prohibited drug (pseudoephedrine) in an amount not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Count 7:(Seong Lee only) IN THE ALTERNATIVE TO COUNT 6. Knowingly take part in the supply of a prohibited drug (pseudoephedrine) in an amount not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Count 8:(Do Young Lee only) Supply of a prohibited drug (pseudoephedrine) in an amount not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. 11The trial commenced on 31 January 2011, an earlier jury having been discharged in the course of the evidence of the first witness in the trial. 12In summary, the Crown case was that on 7 December 2009, the applicant Do Young Lee supplied a large commercial quantity of pseudoephedrine located in the laundry (in boxes of clothes washing detergent) and, additionally, supplied a large commercial quantity of pseudoephedrine (contained in large bags) located in a locked main bedroom at the Waterloo apartment. 13Both applicants were charged in relation to four counts relating to a sub-machine and accessories located in the laundry. 14A large amount of cash, exceeding $1million was found in the course of the execution of a search warrant. 15The Crown alleged that Seong Lee also supplied the pseudoephedrine found in the laundry, or alternatively was knowingly concerned in his father's supply (deemed) of that substance. 16The supply charges were all of deemed supply, based on possession of greater than the trafficable quantity of the substance; s 29 Drugs Misuse and Trafficking Act 1985. 17The applicant, Do Young Lee was alone said to have been in possession of the revolver found in the main bedroom. 18The date of all Counts in the indictments, namely, 7 December 2009, was central to the issue as to whether or not the applicant, Do Young Lee was in possession of any of the items as he no longer resided in the apartment at that time. 19There was no issue in the trial that, as at 7 December 2009, the applicant and his wife in fact lived in premises in another suburb of Sydney. 20The applicant Seong Lee, however, did reside at the apartment with his girlfriend at that time. 21In the submissions for the applicant Do Young Lee on the appeal, it was observed that there was physical and forensic evidence suggestive of others also either residing or accessing the apartment, including the main bedroom of the apartment, at the relevant time. 22A further issue at trial was the reliability of the evidence of a person said to be criminally concerned (one Pak). Further, there is a question as to whether the jury could be satisfied that there was pseudoephedrine in the washing powder located at the apartment and the inferences that could be drawn in a circumstantial evidence case. C. The verdicts 23On 16 March 2011, the applicant, Do Young Lee was found guilty on Count 5 (possess firearm in bedroom), Count 6 (supply drugs in the laundry) and Count 8 (supply drugs in the bedroom). He was acquitted of Counts 1 to 4 (possess firearm and weapons in the laundry). 24Seong Lee was found guilty of Counts 1 to 4 (possess firearms and weapons in the laundry), not guilty of Count 6 (supply drugs in the laundry) but guilty of Count 7 (the alternative to Count 6, knowingly take part in supply by the applicant of drugs in the laundry). Do Young Lee was found guilty in relations to Courts 6 and 8. D. The concession made by the Crown on Ground 1 of the appeal 25Both applicants have appealed their convictions on a number of grounds. 26It is necessary at this point to refer to Ground 1 in the grounds of appeal. In relation to Mr Do Young Lee Ground 1 was in the following terms: "1. The trial miscarried be virtue of an irregularity going to the root of the proceedings, namely, the illegal release of the appellant's compulsory examination before the NSW Crime Commission to the DPP and its use by the prosecutor in the trial." 27In relation to Seong Won Lee Ground 1 was expressed in the following terms: "1. The trial miscarried due to the prosecutor's possession of the appellant's compulsory interview which denied the appellant's right to a fair trial." 28Both applicants were examined in 2009 pursuant to the compulsory powers vested in the NSW Crime Commission. The applicant, Do Young Lee, was examined on two dates, namely 26 November 2009 and 1 December 2009. Seong Lee was examined by the Commission on 16 December 2009. It is noted that the examinations took place at a time during which criminal charges had already been laid against the applicant, Do Young Lee, for other offences (on 25 February 2009 Do Young Lee was charged with three offences, two offences of knowingly deal with proceeds of crime and one offence of goods in custody). These charges were subsequently no-billed by the DPP and formally withdrawn and dismissed on 13 May 2010, which was the date that the charges were laid that became the subject of the applicant's trial. The discontinued charges were subsequently reinstated by the police and prosecuted by the DPP in the Local Court. Those charges were later stayed as an abuse of process. 29On 28 October 2010, prosecuting authorities served on the legal representatives for the appellants/applicants a brief of evidence which included transcripts of the two compulsory examinations of the applicant, Do Young Lee, dated 26 November 2009 and 1 December 2009 and the compulsory examination of Seong Lee on 16 December 2009 and the transcript of three compulsory examinations of the witness Pak. Also included in the brief were said to be statements from persons arising from investigations based on the compulsory examination transcripts. 30A separate trial was granted to the applicant, Do Young Lee, in relation to the Count of knowingly possess proceeds of crime, namely $1.147million cash, on 7 December 2009, located at the same premises at Waterloo, the subject of the other Counts. 31On the hearing of the appeal, it was submitted on behalf of the applicant, Do Young Lee, that a non-publication order had been made at the time of the hearings of the NSW Crime Commission involving that applicant. The direction was to the effect that the evidence given before the Commission "... shall not be published except in such manner and to such persons as the Commission specifies." 32It was submitted for the applicant Do Young Lee that no direction by the Commissioner or by the Court had been made that evidence obtained during the course of the compulsory hearings of the Commission were to be published to NSW Police, the Officer of the Director of Public Prosecutions instructing the trial or the Crown Prosecutor. 33It was further submitted that it was clear that statutory directions of the Commission had been breached and that the transcripts were put to the derivative use of compiling the brief of evidence served in the trial. 34It was contended that the publication of the evidence before the Crime Commission to the prosecuting authorities in the applicant's trial, was contrary to s 18B(2) of the New South Wales Crime Commission Act 1985 ("the Act") and was an offence under s 13(12) of that Act. 35It was submitted that a miscarriage of justice resulted from the disclosure to the prosecution of the transcripts of their respective examinations before the Crime Commission. In that respect the applicant Do Young Lee relied on what was said to be an unlawful release of the transcript of his examination in breach of a non-publication order. It was also argued that there were two prejudicial consequences of that release: disclosure of his defence to the prosecution and derivative use of the evidence that Do Young Lee gave to the Commission. 36The applicant Seong Won Lee did not claim that release of the transcript of his examination was unlawful by reason of breach of non-publication order, no such order having been made. Nor did he rely upon any derivative use, but rather it was submitted on his behalf that the Crown Prosecutor's possession of the transcript of his examination at trial breached the "protective prohibition" in s 13(9) of the Act and that meant that he was denied his right to a fair trial. 37The Crown noted in its written submissions on Ground 1 that the applicant Do Young Lee had not been charged with any of the offences the subject of the trial at the time that he was examined on 26 November and 1 December 2009. 38The applicant Seong Won Lee was charged with Counts 1 to 4 on 7 December 2009, the same day that the police executed the search warrant at the Waterloo premises. He was not charged in relation to Count 6 and 7 until 17 May 2010. Accordingly, at the time that he was examined before the Crime Commission on 16 December 2009, Seong Won Lee had not been charged with any drug offences, though he had been charged in relation to weapon offences found during the execution of the search warrant. 39The Crown conceded that the dissemination to the Director of Public Prosecutions of the examination transcripts was unlawful in the usual circumstances of the case and that the applicants' trial miscarried in respect of the drug charges, namely Count 6 (only Do Young Lee was convicted on this Count), Count 7 (Seong Won Lee only) and Count 8 (Do Young Lee only). The Crown did not, however, make that concession in relation to the applicants' trial on the weapons offence, Counts 1 to 4 (Seong Lee only) and Count 5 (Do Young Lee only): Respondents' Submissions on Ground 1, dated 21 August 2012 at [7]. 40In making the above-mentioned concessions in respect of the drug counts, the Crown expressly stated that it did not concede that either a verdict of acquittal or a permanent stay would be an appropriate remedy. 41The Crown emphasised that the required analysis of the evidence and issues, in particular an assessment of the factual matrix, was required in order to determine whether there had been a miscarriage of justice. However, that said, the Crown accepted that if the Court undertook an individual assessment, as required in relation to Counts 6, 7 and 8, it would be satisfied that the DPP's possession of the transcript in this case in fact led to a miscarriage of justice: Crown's Submissions dated 21 August 2012 at [10]. E. Submissions for the applicants on the bail application 42At the hearing of the applications, Mr Hamill SC tendered a bundle of documents in support of the application on behalf of his client (Exhibit A). The documents included an extract of the Crown's submissions to the Court of Criminal Appeal in relation to Ground 1 of the appeal grounds, the affidavit of Jin Yu Yang affirmed 18 September 2012 and the affidavit of Dennis Miralis, solicitor, sworn 16 September 2010 (filed in relation to an earlier bail application. Paragraphs 1-21 only were read). The affidavit of Seul A (Jenny) Lee sworn 19 September 2012 was also filed in the application. 43Mr Thangaraj SC on behalf of his client stated that he relied upon the documents constituting Exhibit A in so far as the documents were relevant to his client. He also adopted the submissions of Mr Hamill. 44Mr Hamill submitted that the present application arises in what was described as "a most unusual case": Transcript 19 September 2012 at p 6. The submission was that the concession made by the Crown as to the application of s 30AA in these applications as well as the fact that the Crown did not oppose the grant of bail together constituted "special" circumstances within the meaning of that section. In relation to the usual criteria that apply to applications for bail, it was submitted that central matters (including the issue of flight risk), favoured the grant of bail. 45Mr Hamill submitted that the applicant had effectively served the sentence of imprisonment imposed upon him in respect of the weapon offences (Counts 1 to 4). In that respect it was noted that the applicant had been sentenced to a fixed term of imprisonment of 2 years 6 months commencing on 30 April 2010 and expiring on 29 October 2012. 46The latter date, it was submitted, has significance in circumstances where the appeal is now to be heard on 12 and 13 November 2012, that is after the whole of the sentence in respect of Counts 1 to 4 has expired. 47In respect of the sentence imposed for Count 7 (the drug offence) the total sentence imposed was a period of 7 years and 6 months with a non-parole period of 4 years to commence on 30 April 2011. It was said that this meant that the weapons offence carried an effective sentence of 12 months before accumulation of sentences. (As noted above the sentence in respect of Count 7 commenced on 30 April 2011.) 48In addition to the above matters, Mr Hamill referred to the Crown's concession made at the hearing of the appeal in relation to Ground 1. The Crown's concession in relation to Ground 1, it was argued, if ultimately accepted, was a "significant factor" in considering the present application for appeal bail. Mr Hamill observed: "If that concession is ultimately accepted, the conviction in relation to Count 7 would be quashed." (Transcript at p 6) 49It was submitted that in the event that the applicant is successful in establishing a miscarriage of justice on the basis of that Ground, the question of what Mr Hamill referred to as "the appropriate remedy" would then arise. This was a reference to whether, in that event, a new trial should be ordered or, as the applicant contends, there should be an acquittal or a stay order. 50A further question, Mr Hamill submitted, would arise on the appeal, namely whether the provision of the NSW Crime Commission transcripts to the Director of Public Prosecutions would flow into a consideration as to the propriety of the applicant's conviction in respect of the weapons charges. The Crown contended it would not. 51Even if the Crown's position in this latter respect were accepted, it was submitted for the applicants that the reality was that the sentence for Counts 1 to 4 has all but expired and will in fact expire before the November hearing in the Court of Criminal Appeal. 52If the conviction on Count 7 was quashed, then, Mr Hamill observed that an exercise of the powers to re-sentence under s 7 of the Criminal Appeal Act 1912 or s 52 of the Crimes (Sentencing Procedure) Act 1999 by the Court of Criminal Appeal would result in an adjustment to the sentence for the weapons offences. If a non-parole period was set for the weapons offences and the statutory ratio of 75 per cent was applied, the non-parole period for the weapons offences would be 22.5 months. If such a non-parole period commenced on 30 April 2010, then it would be expressed to expire on 13 March 2012. However on the basis that the sentence for the weapons offences was less than 3 years, a non-parole period and parole period would not arise and an order for release would be made upon expiration of the sentence. 53In relation to the issue of "special or exceptional circumstances", Mr Hamill relied upon the following: (1) The case on appeal was more than arguable particularly taking into account the concession he said had been properly made by the Crown as to a miscarriage of justice on the basis of Ground 1. This, it was argued, was a significant matter, whether or not the Court of Criminal Appeal in due course acts on the basis of the concession. (2) The applicant Seong Won Lee will, by the hearing in November, have served the relevant sentence in respect of the weapons charges in respect of Counts 1 to 4. (3) The Crown's concession that special or exceptional circumstances exist in this case. As earlier indicated the Crown referred in the latter respect to the fact that it had before the Registrar sought additional time to consider the matter and, if necessary, to file further evidence. (4) In respect of the future, it was submitted that there was the possibility that the appeal may succeed and in that event a further possibility will exist, namely, an acquittal or a stay order on the prosecution of the drug charges. (5) If both possibilities were realised, it was submitted, the applicant, notwithstanding, would have served a considerable amount of time in custody. (6) The relevant factors in terms of time include the part-heard hearing in November next, the time required for the Court of Criminal Appeal to deliver judgment and the possibility of proceedings in the High Court. 54In addition to the above-mentioned matters, Mr Hamill stated that even if there was a re-trial, such a trial would not take place until the early part of 2013 thereby resulting in further incarceration of his client. 55Reference was made by Mr Hamill to the position arising assuming a re-trial was ordered, in particular taking into account the presumption against bail. Where such a presumption exists the strength of the Crown case is a relevant factor. Mr Hamill submitted that there will be problems in the Crown case on a re-trial in particular in relation to the following matters: (i) The premises in question, whilst occupied by his client, were used by other people. It would be necessary for the Crown to exclude the possibility of the drugs being those of others. (ii) The heavy reliance the prosecutor will place upon the person Pak. It was contended that he was significant to the case against Seong Won Lee but that he was concerned in the events giving rise to the offences in question. Accordingly, a warning under s 165 of the Evidence Act 1995 would be necessary. The witness Pak, Mr Hamill contended, was 'a suspect witness' and that he had "an axe to grind": Transcript p 12. (iii) Initially no traces of drugs were found on the detergent boxes which is why Seong Won Lee was on bail for some time until an analyst later made a different finding. There would be an issue as to whether the "belated analysis" could be relied upon. (iv) An issue would also arise as to the 'knowledge' of Seong Won Lee as to the activities of the co-appellant/applicant. 56If the appeal was dismissed, Mr Hamill observed, then questions of law would arise which are likely to be subject of a special leave application to the High Court. 57As to the relevant considerations on a bail application before trial submissions on the matters (i) to (iv) below were relied upon: (i) There was no real risk of the applicants absconding or committing further offences whilst on bail. In that respect, although there was a breach of bail by the applicant in respect of reporting conditions on 13 - 16 May 2010, that had occurred in the circumstances explained in the affidavit of Mr Dennis Miralis, solicitor, sworn on 16 September 2010. The applicant had been on bail since 11 December 2009. He subsequently, through his solicitors, made arrangements to surrender himself to police when he was advised that pseudoephedrine had been detected on boxes of detergent and that as a consequence he was to be charged with the more serious offences in Counts 6 and 7. (ii) The period of 6 months during which the applicant was on bail is itself evidence against the proposition that he is a flight risk. (iii) The duration of custody likely to be served before the proceedings (including the present appeals) are resolved. (iv) The evidence of Jin Yu Yang, accountant, as to the deponent's preparedness to enter into an agreement as surety for the applicants to forfeit a large amount of money fortified by a security on real estate. 58I have earlier referred to the fact that Mr Thangaraj adopted and relied upon the submissions made by Mr Hamill. Additionally, Mr Thangaraj observed: (i) That his client Do Young Lee had in fact served his sentence referrable to the relevant weapon conviction. The fixed term under that sentence had expired (ii) That his client is not a flight risk. All his assets have been restrained by virtue of an order having been made under the Criminal Assets Recovery Act 1990. If he absconded he would forfeit his assets. (iii) That his client Do Young Lee has community ties, in particular his wife and daughter. (iv) On the basis of the affidavit evidence surety in the amount of $200,000 is available, to be shared between his client and Seong Won Lee. (v) Delay would arise in the event that an order was made dismissing the present appeal followed by a special leave application to the High Court, or in the event of a successful appeal but a re-trial being ordered. In the latter event an application for a stay of any re-trial may be made. 59On behalf of the Crown, the Crown Advocate stated: (i) The Crown's submissions were limited to one discrete basis. The Crown had sought an adjournment of the part-heard appeal to a date later than September 2012 and had so advised the Registrar. The Crown Advocate stated that the Crown was not now in a position to oppose or resile from that position in any way. (Transcript p 14). That said, it was acknowledged that there remained a high threshold for the applicant in obtaining bail and it was obviously a matter for the Court. (ii) As to the stringent requirements imposed by s 30AA, the Crown Advocate stated that the issue of delay occasioned by the adjournment until November 2012 was the only basis on which the Crown agreed to a grant of bail. It conceded that matter could be said to constitute a special exceptional circumstance within s 30AA. (iii) The above matter, the Crown Advocate stated, was the only basis upon which she had instructions to agree to bail: T 15. (iv) The Crown's position on surety was that an amount of $100,000 on the security proposed would be adequate. Consideration (a) Limitation on grant of bail 60Section 30AA of the Bail Act so far as relevant to the present applications provides 30AA Limitation on power to grant bail Notwithstanding anything in this Act, if: (a) an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) ... (b) ... bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail. (b) Principles 61In determining whether special or exceptional circumstances exist one individual factor or circumstance may be sufficient although more often than not a number of factors in combination are relied upon as satisfying the statutory test. See, for example, Regina v MFA [2002] NSWCCA 49 at [13] and Arun Vinayagamoorthy v Commonwealth Director of Public Prosecutions (2007) VCS 265 at [18]. It has also been observed that there is a need for the exercise of extreme caution about the grant of bail pending appeal: R v Giordano (1982) 31 SASR 241, at 242 per King CJ. 62Where the prospects of success on appeal are put forward as a special circumstance in support of the grant of bail after conviction, it is not sufficient to show a merely arguable ground of appeal, or even one which has a reasonable prospect of success. R v Smith (Court of Criminal Appeal, 18 May 1993, unreported, per Hunt CJ at CL). 63In R v Wilson (1994) 34 NSWLR 1, Hunt CJ at CL said (at p7): "... I agree ... that something more than an arguable ground of appeal must be shown in order to establish the special or exceptional circumstances required by s 30AA of the Bail Act 1978. 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 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." 64The length of the term of a sentence of imprisonment and the issue of delay may be relevant factors. In Director of Public Prosecutions v Louizos [2008] NSWCA 271, the offender received a sentence of 10 years imprisonment with a non-parole period of 6 years. The hearing of the appeal was then about six weeks away. In proposing that bail granted by the sentencing judge be revoked, McClellan CJ at CL, who wrote the leading judgment, observed that: "[w]here, as in the present case, the term of the non-parole period imposed extends well beyond the date of the likely resolution of the appeal, unless there is likely to be some extraordinary delay, the fact that the appeal cannot be heard in the immediate future could not justify a finding of special or exceptional circumstances. ... I have indicated that the possibility that an appeal may lead to an acquittal is a relevant consideration. However, because of the term of the respondent's sentence that consideration is of minor significance in the present case." (At [21] and [23]) 65The test applied by the High Court in considering applications to that Court for the grant of bail rests upon the common law. However, the collection of factors or components identified by Callinan J in Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265 provides a guide. They may be brought to bear in answering the ultimate question whether there exists the necessary special or exceptional circumstances warranting a grant of bail in the case of an application under s 30AA: R v Velevski [2000] NSWCCA 445 at [23]. 66The relevant principles were revisited in Director of Public Prosecutions v SKA [2009] NSWCA 51 (McClellan CJ at CL, Buddin and Price JJ). In that case Buddin J referred to the High Court's judgment in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 in which Gleeson CJ, McHugh and Gummow JJ in a joint judgment observed, in effect, that there was a need for caution in determining whether to stay an order of imprisonment and to grant bail. The High Court stated in that case that it was necessary that consideration be given not only to the position of the applicant for bail but also to the position of the Crown before staying an order of imprisonment prior to a decision being given in an appeal. To stay an order of imprisonment before deciding an appeal is, the Court stated, a serious interference with the due administration of criminal justice. The Court referred with approval to the observations of Thomas J in Ex parte Maher [1986] 1 Qd R 303 at 310 in which it was stated that to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned: · makes the conviction appear contingent until confirmed; · places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; · encourages unmeritorious appeals; · undermines respect for the judicial system in having a 'recently sentenced man walking free'; · undermines the public interest in having convicted persons serve their sentences as soon as is practicable. 67The decision in Cabal is to be taken as authoritative and the burden on an applicant is not diminished by the statements made by Callinan J concerning the observations of Brennan J (as his Honour then was) in Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 519 in Marotta v R, supra, at 266. See Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103 per Basten JA at [26] - [30]. 68In the latter case Basten JA observed that the approach adopted in Cabal has been applied by the Court of Appeal in Western Australia in Tieleman v R [2004] WASCA 285; (2004) 149 A Crim R 303. His Honour stated that although the principles enunciated by the High Court involve no statutory test, but rather an application of the general law, that gave rise to no point of distinction. Having referred earlier to the remarks by Callinan J in Marotta, supra, Basten JA stated that he was not persuaded that there had been any diminution of the burden placed on an applicant for bail pending appeal to establish circumstances that are truly special or exceptional. 69In the present case, Mr Hamill contended that the Crown's concession in relation to Ground 1 might be seen as being similar to a case in which special leave had been granted by the High Court in so far as it demonstrates that there is a strongly arguable point. Whilst I do not regard the concession as at all equivalent or comparable to the grant of special leave by the High Court, it is nonetheless a material factor to be taken into account in the consideration of the present applications. 70The length of time before which an appeal was to be heard is also a relevant matter to be taken into account: MFA, supra. I refer in this respect to [63] above. I take that matter into account. 71The provisions of s 30AA pose a stringent test and they are to be applied in accordance with the above principles. Underlying those principles lies the foundational proposition identified by the High Court in Cabal. Together they require a determination as to whether special and exceptional circumstances exist in what have been referred to in the present applications as the "unusual" circumstances of the case. 72The issue raised in Ground 1 of the grounds of appeal undoubtedly does raise an unusual and an important issue going to the question as to whether a miscarriage of justice occurred in the applicants' trial. The potential significance of Ground 1 has been reinforced by the Crown's concession in its written submissions that there was a miscarriage of justice based on that Ground. These are important matters to be taken into account in assessing the submission for the applicants to the effect that they have strongly arguable appeals against their convictions. Added to that is the delay that will occur before the hearing of the appeal continues in November next, together with the Crown's acceptance of responsibility for that delay by virtue of its need for time to further prepare the Crown case before the resumption of the hearing in November. 73Whilst the submissions for the applicants in the present applications for bail directed attention, in particular, to the issue of miscarriage of justice based on Ground 1, it is important to note that the submissions of the parties directed to that ground had not reached completion at the time at which the hearing of the appeals was adjourned on 23 August 2012. Further, it is to be noted: (i) The submissions made to the Court of Criminal Appeal on that date proceeded in circumstances in which the transcripts of the Crime Commission's examinations were not before the Court. The question as to whether the transcripts could or should be tendered in the appeals is a matter that may well be revisited when the hearing resumes on 12 and 13 November next. (ii) Aside from the fact of the release before trial of the transcripts of the Crime Commission examinations to the Director of Public Prosecutions the contents and use of those transcripts by the prosecuting authority are matters that may be the subject of further submissions. Whether or not that occurs may not be known until the further hearing of the appeals. At this point, however, the position as to what further issues may arise in relation to Ground 1 is unknown. (iii) On the basis of the matters referred to in (i) and (ii), for the purposes of determining bail, it is at present impossible to assess the appeals as having extraordinarily high prospects of success or that they are certain to succeed, that being the appropriate standard as discussed above. This is particularly so in a case that may be described as unusual and that may be considered to involve some novel issues. 74I have concluded that the concession made by the Crown in relation to the issue of special or exceptional circumstances concerning Ground 1 cannot be accorded the significance sought to be attributed to it in the submissions for the applicants. The concession made by the Crown in relation to Ground 1, as matters presently stand, exists in circumstances that may require an examination of issues of fact and of law before the question of a miscarriage of justice is capable of being determined. In other words, in determining the applications for bail it is not presently open to proceed upon the basis that all issues and submissions in relation to Ground 1 have as yet been identified and that the prospects of success on Ground 1 are accordingly capable of being assessed for the purpose of the present applications as the relevant case law authorities require. Further, the concession made by the Crown in relation to Ground 1, though an important matter, still requires the Court of Criminal Appeal to determine for itself whether the concession was one properly made. 75Although the delay of approximately three months between the hearing on 23 August 2012 and the resumption of the hearing on 12 November 2012 is an important factor to be taken into account considering whether bail should be granted, I do not consider that that period of itself is sufficiently lengthy in the circumstances of the cases to constitute special or exceptional circumstances and this, notwithstanding the Crown's concession that it could be so regarded. In other words in the context and circumstances of the case I do not consider that that delay could be considered to be an 'extraordinary' one or a delay that should be considered to be 'exceptional'. 76I do not consider that the lack of opposition to the grant of bail by the Crown or it agreeing to bail, either alone or in combination with other factors relied upon in the submission for the applicants, constitutes "special" circumstances. 77The question to what is "special" or "exceptional" is essentially a question of fact in the unique circumstances of each individual case. That said, it is important to bear in mind that s 30AA was intended to restore the common law provision: R v Velevski, supra, at [15]. As the High Court in Cabal, supra, observed, the need for "exceptional circumstances" arises by reason of the fact that to stay an order of imprisonment before deciding an appeal is a serious interference with the due administration of justice. With that in mind, the absence of an objection by the Crown to the grant of bail or, indeed, even consent by the Crown to the grant of bail cannot in itself, in my opinion, constitute a special or exceptional circumstance in a case where the Court considering the application for bail concludes that the concession in that respect does not have support from other circumstances or factors that independently satisfy the statutory test. 78I have closely considered all of the matters raised in the comprehensive and helpful submissions of Mr Hamill and Mr Thangaraj. For the reasons I have given, I have, however, concluded that the circumstances relied upon in support of the applications are not, whether considered individually or in combination, "special" or "exceptional" within s 30AA of the Bail Act. 79Accordingly, the application for bail made on behalf of each applicant must be dismissed. In each application I so order. ********** 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: 28 September 2012