R v Fabian Michael [2013] NSWSC 854

Supreme Court New South Wales

Medium Neutral Citation: R v Fabian Michael [2013] NSWSC 854 Hearing dates: 20, 26 June 2013 Decision date: 26 June 2013 Jurisdiction: Common Law - Criminal Before: Slattery J Decision: Conditional Bail Granted Catchwords: CRIMINAL LAW - bail application - notice of intention to appeal against conviction filed - but appeal not yet filed - whether a single judge of the Supreme Court has power to grant bail in those circumstances - whether Bail Act s 30AA "special or exceptional circumstances" exist - Applicant has serious medical and psychological conditions -argument in the legal opinion on the merits of appeal well structured and compelling. Legislation Cited: Bail Act 1978 s 4, s 28, s 30, s 30AA Crimes Act 1900 s 319 Criminal Appeal Act 1912 s 10(2)(b) Cases Cited: R v Joseph Antoun [2005] NSWCCA 270 R v Wilson (1994) 34 NSWLR 1 DPP v Cassaniti [2006] NSWCCA 335 Category: Principal judgment Parties: Fabian Michael (Applicant) Representation: Counsel: Director of Public Prosecutions R. Sutherland SC (Applicant) P. Kintominas (Applicant) Solicitors: File Number(s): 2011/332412

EX TEMPORE Judgment 1Fabian Michael is an Applicant for bail today. His application came before me last Thursday, 20 June 2013 and was adjourned to today, so I could consider all the materials advanced on his behalf. 2On 21 March 2013 the Applicant filed a Notice of Intention to Appeal against his conviction of one count of doing an act intending to pervert the course of justice contrary to Crimes Act 1900 s 319. The facts alleged and established by the Applicant's conviction were that the Applicant advised a person involved in an incident being investigated by police to give a false version of events to police. The Applicant was tried before Judge Payne and a jury in the District Court at Parramatta commencing on 21 August 2012. The jury returned its verdict of guilty on 29 August 2012. After that verdict the Applicant Judge Payne granted bail to the Applicant until his sentence hearing. He was finally sentenced on 21 March 2013 to imprisonment for two years and three months with a non-parole period of fifteen months. The Applicant has been in prison ever since. 3An appeal under the Criminal Appeal Act 1912 has not yet been filed. So the Applicant comes before the Court in circumstances where a little over three months, or 20%, of his non-parole period has been served, a non-parole period which will expire in June 2014. Senior and junior counsel for the Applicant, Mr Sutherland SC and Mr Kintominas indicate that were the appeal to be filed presently, that even with expedition, the Applicant's appeal against conviction could probably not be heard by the Court of Criminal Appeal until near the end of this year, if not early next year. 4The first question is the power of a single judge sitting in the bails list to grant bail in these circumstances. In a judgment such as this it is not necessary to set out all the applicable legislative provisions, which are well known. But I will explain the basis of the Court's jurisdiction in summary form. 5Leaving aside the Court's inherent jurisdiction, Bail Act 1978 ("Bail Act") Part 4 might be seen to confer the power to grant bail after conviction and on appeal only to the Court of Criminal Appeal. Bail Act Part 4 Division 4 - Supreme Court s 28 confers power on the Supreme Court to grant bail "to any person accused of any offence" whether or not the person has appeared before the Supreme Court in connection with that offence. This at first seems a somewhat inapt description of a person who has already been convicted of an offence. Bail Act Part 4 Division 5 - Court of Criminal Appeal appears to deal with what happens after conviction. Bail Act s 30, within Division 5 confers power on the Court of Criminal Appeal to grant bail "in accordance with this Act to any person accused of an offence" in circumstances where there is "an appeal pending in the Court". It seems clear that if a person who has lodged an appeal can be described as someone "accused of an offence, then the power in Bail Act s 28 using the same language "accused of any offence" must be broad enough to cover a person not only accused, but convicted, of an offence. 6This construction is supported by two other matters. In Bail Act s 4 the word "offence" is defined inclusively. It "includes an alleged offence", supporting the construction that it may also mean "convicted of an offence". In placing limitations on the power to grant bail, Bail Act s 30AA says "bail should 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" [emphasis added]. Thus Bail Act Part 4 Division 4 contemplates that "any other Court" can grant bail pending appeal. Moreover, this is the manner in which courts have interpreted the provisions: DPP v Cassaniti [2006] NSWCCA 335 (Basten JA, Bell J and Johnson J). 7The Applicant can be granted bail before filing his appeal. The language of Bail Act s 30 and s30AA is that the Court of Criminal Appeal or any other Court may grant bail if "an appeal is pending in the Court" in connection with the offence. But Criminal Appeal Act s 10 makes it clear that those words encompass the Applicant's Notice of Intention to Appeal filed on 21 March this year. Criminal Appeal Act s 10(2)(b) provides that for the purposes of any other Act or statutory instrument an "appeal against a conviction or sentence is taken to be pending in the Court if notice of intention to appeal or apply for leave to appeal has been duly given to the Court." There is no doubt that has happened in this case. It seems to me there is no procedural obstacle to me dealing with this application. 8I have been referred to many authorities on the meaning of the words "special or exceptional circumstances exist justifying the grant of bail" in Bail Act s 30AA. Authority makes clear that the term within Bail Act s 30AA is not limited to questions of the strength of the appeal, although such considerations are obviously central to the Court's task: R v Joseph Antoun [2005] NSWCCA 270 at 14 and 15 (Simpson, Johnson and Rothman JJ). 9In my view there are Bail Act s 30AA special and exceptional circumstances established here, warranting the grant of bail to this Applicant. 10The Crown opposes bail and points to the Applicant's conviction and his strong motivation not to attend Court and the need to protect the community in relation to what is a serious offence. Although the Crown concedes there is a presumption in favour of bail for this offence, it identifies the obstacles to that bail from Bail Act s 30AA. The Applicant's case of "special or exceptional circumstances" justifying the ground of bail is based upon four factors: his current medical condition, his current psychological condition, the strength of his appeal and the probability of his answering bail. I will deal with the last of these matters first. 11Despite the Applicant's conviction there is little doubt he will answer bail. He had no convictions prior to August 2012 and he complied without fail with his bail conditions from the time that he was first charged in October 2011, until his sentencing in March 2013. He has strong family connections. Substantial sureties are offered together with a regime of daily reporting to Burwood Police Station. 12The Applicant proposes to appeal against conviction and seeks an acquittal from the Court of Criminal Appeal. Whilst it is difficult on the materials presented to say that the appeal is virtually "certain to succeed" in the language of R v Wilson (1994) 34 NSWLR 1, the Court has been provided with detailed written submissions prepared by Mr Game SC in relation to the conviction appeal together with the relevant trial transcript. This is not the place for extensive analysis of the draft grounds of appeal. But I observe that the argument is well structured and compelling. Its final merits will no doubt be a matter for the Court of Criminal Appeal. I propose to impose as a condition of bail that an appeal be filed in the registry of the Court of Criminal Appeal by 5.00pm on 10 July 2013. 13The Applicant has a serious medical condition. Before his sentencing hearing, due to a family history of serious cardiac disease, hypertension and Type II diabetes, he underwent an ECG in February this year. The ECG indicated he has had a myocardial infarction with resulting sinus brachycardia. His general practitioner, Dr B.A. Maroun, says he needs urgent review and treatment by a cardiologist. I accept Dr Maroun's evidence that this medical treatment is needed urgently "as he is at the risk of having serious further cardiac events, even potentially cardiac arrests". I am satisfied from the Applicant's account of events that he is not receiving treatment within in his correctional facility with the urgency his condition deserves. 14His medical condition is compounded by a psychological one. He was assessed by a clinical psychologist at the Silverwater Correctional Centre on 29 March 2013 and diagnosed with a stress related major depressive order. The stress associated with incarceration would not ordinarily on its own constitute special or exceptional circumstances. But in the Applicant's case the medical evidence infers that his stress related depression puts him at increased medical risk of a myocardial event. 15There has been some delay in putting on an appeal. This is not the Applicant's fault. The evidence discloses quite intense efforts have been made to secure all the transcript of the proceedings and the remarks on sentence so that an appeal against conviction and any application for leave to appeal on sentence could be filed together. The Applicant is in a position to achieve at least the former. And that is what should now be done. 16In my view the Applicant has made out the special or exceptional circumstances justifying bail pending appeal. It is difficult to forecast when this matter will come before the Court of Criminal Appeal. Unless bail were granted now a very substantial part of the non-parole period of the Applicant's sentence would probably be served before his appeal is heard. Having regard to his prior compliance with bail conditions pending trial there is no reason to fear his non-attendance. To deprive him of bail at this stage may well deprive him of the benefit of his appeal should he be successful. For those reasons I will grant bail upon the following terms: The Applicant is granted bail pending the Applicant's appearance as directed by the Court of Criminal Appeal upon compliance with Bail Condition 9. (1)The Applicant is to reside at [address not published]. (2)The Applicant is not to leave the residence each day between the hours of 9.00pm and 6.00am except in the company of [name withheld]. (3)The Applicant is to report to police at [name withheld] Police Station daily between the hours of 8.00am and 6.00pm. (4)The Applicant is to surrender his passport to the officer in charge of the investigation and is not apply for another passport. (5)The Applicant is not to approach within 300 metres of any point of departure from this country. (6)The Applicant is to enter into an agreement without security to forfeit the sum of $5,000 if he fails to comply with his bail undertaking. (7)One acceptable person/s, is to enter into an agreement to forfeit the sum of $50,000 if the Applicant fails to comply with his bail undertaking, and is to deposit acceptable security in that amount. (8)The Applicant is to be of good behaviour. (9)The Applicant is to lodge in the Registry of the Court of Criminal Appeal an appeal against his conviction by 5.00 pm on Wednesday 10 July 2013, and thereafter is to conduct his appeal expeditiously. (10)Bail is to be automatically revoked in the event of any breach of any one of these conditions and the Applicant may thereupon be arrested by any police officer.