Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99 Hearing dates: 8 May 2019 Date of orders: 08 May 2019 Decision date: 20 May 2019 Before: White JA at [1]; Harrison J at [22]; R A Hulme J at [23] Decision: Bail granted with conditions. Catchwords: CRIME – Bail – Release Application – Applicant and co-accused convicted at same hearing – Co-accused successfully appealed conviction – Whether Crown concession given in respect of applicant's own conviction appeal special or exceptional circumstance justifying grant of bail – Release application and bail granted Legislation Cited: Bail Act 2013 (NSW), ss 16A, 18, 19, 22, 49 Criminal Code (Cth), ss 11.5 and 307.1 Cases Cited: Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1 Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 DPP v Tikomaimaleya [2015] NSWCA 83 Edward Moses Obeid v R (No 2) [2016] NSWCCA 321 McKell v R [2017] NSWCCA 291 McKell v The Queen [2019] HCA 5 R v Kelly [2000] QB 198 Category: Principal judgment Parties: Richard McGlone (Applicant) Commonwealth Director of Public Prosecutions (Respondent) Representation: Counsel: P Lange (Applicant) S Duggan (Crown) Solicitors: Zahr Partners (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2019/99103 Judgment 1. WHITE JA: On 8 May 2019, the Court heard a release application under s 49 of the Bail Act 2013 (NSW) ("the Bail Act") by the applicant, Richard McGlone. The Crown opposed the grant of bail. The Court granted Mr McGlone's release application and granted him bail on certain conditions. There was no dispute about the conditions imposed once it was found that bail should be granted. 2. These are my reasons for joining in the orders of the Court. 3. In 2016 the applicant was tried and convicted in the District Court along with a co-accused, Mr Jason McKell, for offences relating to the importation and conspiracy to import commercial quantities of pseudoephedrine and methamphetamine. They were each also tried and convicted of an offence relating to the dealing with proceeds of crime. On 11 November 2016, the applicant was sentenced to an aggregate term of imprisonment of 19 years with a non-parole period of 12 years. 4. The applicant's co-accused, Mr McKell, appealed his conviction. His appeal to this Court was dismissed by majority (McKell v R [2017] NSWCCA 291). He obtained special leave to appeal to the High Court. On 13 February 2019 the High Court allowed his appeal, quashed his convictions, and ordered that a new trial be had (McKell v The Queen [2019] HCA 5). The High Court held that the trial judge's summing up was unfair and denied Mr McKell a fair trial. 5. The applicant filed a notice of appeal on 16 May 2018. The fourth ground of appeal was that the trial judge's summing up to the jury caused a miscarriage of justice. His notice of appeal also contains other grounds, some of which he would contend, would lead to his acquittal if established. The applicant's appeal is listed to be heard in this Court on 29 July 2019. The Crown concedes that in the light of the High Court's decision in McKell, the applicant's fourth ground of appeal has merit. The Crown will not oppose an order quashing the applicant's convictions and ordering a new trial. The Crown accepts that if the result of the appeal is the ordering of a new trial, such a trial is unlikely to be able to take place before the middle of 2020. 6. The applicant was arrested on 20 May 2013. On 24 October 2013, he was granted conditional bail by Barr AJ. He was committed for trial on 23 March 2015 and his trial commenced on 6 June 2016. Guilty verdicts were returned on 21 July 2016 and his bail was revoked. 7. The applicant complied with his bail conditions. 8. Section 22 of the Bail Act applies. It provides: "22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision: (a) an offence for which an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment, (b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a). (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified. (3) Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section." 1. Count 2 on the indictment, being a charge of conspiracy to import a commercial quantity of methamphetamine contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) is a "show cause" offence. By reason of s 22(2), subs 22(1) applies instead of the requirement that would otherwise arise under s 16A to show cause why his detention was not justified. Subsection 22(1) applies to each of the offences in question. 2. The Crown submitted that special or exceptional circumstances had not been established to justify the bail decision because appeal prospects were a factor to be considered in the context of other relevant circumstances, including the unacceptable risk factors said to be imported into consideration of s 22(1) by s 22(3). When those factors were taken into account, according to the Crown's submissions, special or exceptional circumstances had not been established under subs 22(1). In support of this submission, the Crown referred to the judgment of Hamill J in El-Hilli and Melville v R [2015] NSWCCA 146 at [13]. Hamill J, with whom Simpson J and Davies JJ agreed, said: "First, where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special and exceptional circumstances exist justifying the [decision to grant bail]'. Then the Court must apply the 'unacceptable risk test' and do so by application of the exhaustive list of matters set out in s 18. The second proposition is that the same factors and evidence may operate at both stages." 1. These observations were made with reference to the reasons of the Court of Appeal in DPP v Tikomaimaleya [2015] NSWCA 83 in relation to offences where there was a "show cause" requirement. The Court there said (at [24]-[25]) in a passage quoted by Hamill J in El-Hilli and Melville v R: "24 We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well. 25 It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment." 1. It is clear, as Hamill J said, that the same kind of two-stage approach is called for by s 22. The first stage is to determine whether special or exceptional circumstances exist that justify a grant of bail. Section 22(3) stipulates that the unacceptable risk test in Div 2 also applies to the making of a bail decision. In substance, the need for special or exceptional circumstances is an additional hurdle. There may well be matters that are relevant to both a determination of whether there are special or exceptional circumstances and to the unacceptable risk test. 2. Hamill J went on to say (at [13]) in a passage relied upon by the Crown: "Where an applicant establishes special and exceptional circumstances, it is likely that the same material will also succeed in satisfying the unacceptable risk test. However, that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act. A case may arise where a particular matter qualifies as a 'special or exceptional circumstance' and yet the application of the unacceptable risk test results in the refusal of bail. Such a case is likely to be rare because the 'unacceptable risk' factors are imported in the 'special or exceptional circumstances' requirement by s 22(3)." 1. I do not entirely follow this reasoning and his Honour was careful to say that the bail authority must apply each test in accordance with the terms of the Act. The present case is an example where a particular matter qualifies as a special or exceptional circumstance, namely that the Crown concedes the merit of ground 4 of the Notice of Appeal and accepts that the convictions should be quashed and a new trial ordered. The essence of the Crown's opposition to the grant of bail is that there is an unacceptable risk that the applicant, if released from custody, would fail to appear at a new trial (Bail Act, s 19(2)(a)). The question whether special or exceptional circumstances exist is to be assessed independently of whether there is an unacceptable risk referred to in s 19(2), although whether there is an unacceptable risk must nevertheless be considered by reason of s 22(3). Whether the assessment of unacceptable risk will always or usually form part of a consideration as to whether there are special or exceptional circumstances, should be of no real moment, provided both matters are addressed. 2. In another context, Gleeson CJ said (in Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 (at [13])): "There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a power [eg United Mexican States v Cabal (2001) 209 CLR 165]. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." [1] 1. The Crown's concession in this case is in my view plainly a special and an exceptional circumstance. (A circumstance does not have to be unique, unprecedented or very rare to be exceptional, but must not be a circumstance regularly, routinely or normally encountered (R v Kelly [2000] QB 198 at 208 and Baker v The Queen at [173]-[174] per Callinan J)). 2. In assessing whether there was an unacceptable risk as described in any of paragraphs (a)-(d) of s 19(2), the Court was required to consider all of the matters in s 18(1) and only those matters in its assessment of bail concerns. Addressing each of the paragraphs in s 18(1) in turn: 1. apart from the offences of which he was convicted the applicant did not have a criminal history. He has strong family ties which form part of his "circumstances" within s 18(1)(a). He is married and has three young children with his wife. He was born in New Zealand, but moved to this country as a young child. The Crown said that he moved to this country when he was four. He would have strong family support not only from his wife, but his sister and would be expected to assume some responsibility in helping to look after his children and nephews. Also to be considered as part of his "circumstances" is the fact that he was on bail before his convictions and complied with his bail conditions; 2. as to para 18(1)(b), the offences with which he would stand charged if successful only on ground 4 of his appeal are undoubtedly very serious, with one such offence carrying a maximum penalty of life imprisonment; 3. as to para 18(1)(c), the prosecution case would seem to be strong, at least in relation to the issues ventilated at his trial. At one point at trial his counsel described the Crown case as overwhelming, although that was in the context of his counsel complaining that the defence was not receiving a fair trial, where it might sometimes be said that there is a particularly strong need for the trial judge to put both the Crown case and the defence case fairly and impartially to the jury; 4. as to para 18(1)(d), the applicant does not have a history of violence; 5. as to para 18(1)(e), the applicant has not committed a serious offence while on bail; 6. as to para 18(1)(f), the applicant complied with the bail conditions and appeared at trial; 7. as to paras 18(1)(c) and (f) in combination, the Crown accepted that the Crown case was not stronger now than it was before his trial. The Crown submitted that the risk of flight was greater now than it was before trial because the applicant received very lengthy sentences and has now spent some time in custody so would be very well aware of the consequences of a conviction on retrial. But it is safe to infer that before his trial the applicant knew that if he were convicted for offences, he would receive a very substantial sentence. The applicant had been on remand for about five months before he was granted bail and so had experienced prison life before his trial, yet made no attempt to flee after his release on bail. Since he was in custody the applicant has started a university degree, works in the print shop and has been a member of the inmate committee at Wellington Gaol where he represented matters of inmate welfare in meetings with the guards; 8. in relation to para 18(1)(g), there is no evidence that the applicant has any criminal associations except as arise from the circumstances of the offences on which he was convicted; 9. as to para 18(1)(i), if convicted after a new trial a lengthy custodial sentence is highly likely, if not inevitable; 10. as to para 18(1)(j), the appeal on ground 4 has more than reasonably arguable prospects of success. It is unnecessary to express any view as to the prospects of success of the other grounds of appeal which, if successful, the applicant would contend would result in his acquittal; 11. as to para 18(1)(l), the applicant does not need to be free to prepare for the pending appeal. It is unlikely that he would need to be free to prepare for a new trial; 12. as to para (18)(1)(m), the applicant's wife deposes as to the impact of the applicant's incarceration on their family and the burden it has placed on his wife who struggles to attend to their daughter's requirements whilst doing full-time shift work to support the family. She also deposes to her assessment of the effect of the applicant's incarceration on the behaviour and motivation of his sons; 13. as to para 18(1)(p) the bail conditions imposed include being of good behaviour; daily reporting to the police; not having contact with the co-accused, Mr McKell, or any person notified as a prosecution witness (except police officers) otherwise than through his legal representatives; the retention of the applicant's passport by the police and the applicant's not applying for any new passport or travel document; his not going within one kilometre of any point of departure from Australia otherwise than for the purpose of transporting his wife to or from her place of work; and the provision of acceptable security for the payment of $150,000 to be forfeited if he failed to appear in accordance with the bail acknowledgment. 1. These conditions addressed the bail concerns in s 17(2). 2. The remaining paragraphs of subs 18(1) are not relevant. 3. The risk of flight is not greater now than it was when the applicant was on bail before his trial. He complied with his bail then. A friend whom the Crown accepts to be an acceptable person to deposit security has proffered his preparedness to enter into an agreement to forfeit $150,000 in equity in a property he owns in Bondi secured by second mortgage in favour of the Queen if the applicant fails to comply with his bail undertaking. The applicant's wife deposes that he would not risk separation from his family whom he loves and would not risk his friend losing his surety. 4. In concurring in the Court's decision to grant bail, I was satisfied that the applicant's strong family connection, the unlikelihood that he would risk his friend's surety by fleeing, and his record of having complied with his bail conditions before his trial satisfactorily address the bail concerns in s 17. I did not consider that there was an unacceptable risk that the applicant, if released from custody, would fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence. For these reasons I joined in the making of the orders. 5. HARRISON J: I agreed with the orders made by the Court on 8 May 2019 for the reasons given by White JA. 6. R A HULME J: I joined in the making of the orders by the Court on 8 May 2019. The factual matters and conclusions discussed in the judgment of White JA at [17]-[21] represent my reasons for doing so. ********** Endnote 1. See also the discussion of "special reasons" in Director-General, Department of Community Services v The Adoptive Parents (2005) 64 NSWLR 268; [2005] NSWCA 385 per Giles JA at [44]-[46]. 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: 18 August 2020