El-Hilli and Melville v R

Court of Criminal Appeal (NSW)|2015-06-10|Before: Simpson J, Davies J, Hamill J

Solicitors: Office of Director of Public Prosecutions File Number(s): 2015/22297 and 2015/14820 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 15 July 2014 Before: North DCJ File Number(s): 2015/22297 and 2015/14820

Judgment

SIMPSON J: I agree with Hamill J.
DAVIES J: I agree with Hamill J.
HAMILL J: Issam El-Hilli and Jenny Melville have each made a release application under the provisions of the Bail Act 2013 (NSW). Each applicant had a similar release application refused by a single Judge of the Supreme Court. Those applications were heard separately by different Judges on 19 and 24 February 2015 respectively. The present applications were heard together and, for the most part, Ms Melville spoke for Mr El-Hilli.
Each applicant was convicted on 15 July 2014 of two offences of dishonestly obtaining a financial advantage by deception. The convictions followed a trial by Judge alone before his Honour Judge North DCJ. Mr El-Hilli was sentenced to a total non-parole period of four years and three months commencing 16 December 2012. The non-parole period in respect of the first count expired on 15 March 2015 but the non-parole period in respect of the second count does not expire until 15 February 2017. Ms Melville was also sentenced to imprisonment. On the first count, she was sentenced to a fixed term of nine months commencing 16 December 2014 and expiring on 15 September 2015. On the second count she was sentenced to a non-parole period of 12 months commencing on 16 March 2015 and expiring on 15 March 2016. There was a balance of term of twelve months.

The legislation and nature of the present applications

The Bail Act 2013 ("the Act") commenced on 20 May 2014 and replaced the Bail Act 1978 ("the 1978 Act"). The Act abolished the distinctions between various offences whereby there were presumptions for and against bail depending on the nature of the offence. The Act replaced those presumptions with a system under which a bail authority was called upon to make an assessment of whether an applicant for bail represented an "unacceptable risk" of committing offences or taking flight. If there was an unacceptable risk, the bail authority was required to consider whether bail conditions could sufficiently mitigate that risk. I described the operation of the "unacceptable risk" test in R v Lago [2014] NSWSC 660, and Alexandridis v R [2014] NSWSC 662.
The Bail Amendment Act 2014 ("the Amendment Act") commenced on 28 January 2015. The Amendment Act made a number of significant changes to the Act. It introduced Division 1A (ss 16A-16B) whereby accused persons charged with certain serious offences are required to "show cause why his or her detention is not justified". The operation of the "show cause" provisions was considered by the Court of Appeal in DPP v Tikomaimaleya [2015] NSWCA 83 and by single judges of the Supreme Court in a number of cases: see, for example, M v R [2015] NSWSC 138 (McCallum J), R v Ebrahimi [2015] NSWSC 335 (Beech-Jones J), Raad v R [2015] NSWSC 532 (McCallum J).
Apart from those offences caught by the "show cause" provisions, the unacceptable risk test was maintained although the Amendment Act refined its operation to some degree. The bail authority must now make an assessment of "bail concerns" under s 17 by reference to the exhaustive list of factors in s 18. The authority must then determine under s 19 whether there is an unacceptable risk that the person will (a) fail to appear, (b) commit a serious offence, (c) endanger the safety of victims, individuals or the community or (d) interfere with witnesses or evidence. If the assessment of those factors satisfies the bail authority that there is an "unacceptable risk", bail must be refused (s 19). If there are no unacceptable risks, bail must be granted or dispensed with: s 20. Under s 20A the Court can impose bail conditions. The Court of Criminal Appeal considered the current form of ss 17-20A in R v Kugor [2015] NSWCCA 14.
Section 67 of the Act allows this Court to hear a bail application in certain defined circumstances. Relevantly, section 67(1)(e) allows the Court to hear an application if "a bail decision has been made by the Land and Environment Court, the Industrial Court or the Supreme Court." Sub-s (2) provides that a single Judge of this Court "sitting alone cannot hear a bail application if a bail decision has been made by the Supreme Court".
Section 22 provides a "General limitation on [a] court's power to release". It is in the following terms: "(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."
Two things can immediately be observed about s 22. First, in cases where there is a "show cause requirement" under Division 1A (ss 16A-16B), the requirement to establish special and exceptional circumstances applies rather than the show cause requirement. This suggests that the requirement to establish special and exceptional circumstances is at least as onerous as the requirement to show cause. Second, subject to the operation of s 22(1), the unacceptable risk test in Division 2 (ss 17-20A) applies to a bail decision made under s 22. The present case does not involve an offence in relation to which there is a show cause requirement. However, s 22 is engaged and the applicants must establish that there are special and exceptional circumstances justifying the grant of bail.
In DPP v Tikomainaleya the Court of Appeal (Beazley P, RA Hulme and Adamson JJ) held that the terms of s 16A(2) concerning offences where there is a "show cause" requirement "make it clear that there is a two-step process involved in determining bail release and detention applications for show cause offences". However, having referred to the comments of McCallum J in M v R [2015] NSWSC 138, the Court said at [24]-[25]: "[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."
Given that the "special or exceptional" circumstances requirement in s 22 replaces the show cause requirement (where applicable) and the structure of the Bail Act, the same reasoning employed by the Court of Appeal in DPP v Tikomainaleya supports the following propositions. 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. 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).
R v Kugor was a detention application brought by the NSW Director of Public Prosecutions to the Court of Criminal Appeal. Davies J had granted bail on a release application in the Supreme Court bails list. It was not a case where there was either a show cause requirement or the need to establish special and exceptional circumstances. It was a matter determined on its facts (the Court refused the detention application) and its only relevance for present purposes is that it was common ground that the application was to be heard de novo: [4] (Hoeben CJ at CL; RA Hulme J and RS Hulme AJ agreeing). In other words, when the Court of Criminal Appeal hears an application pursuant to its jurisdiction under s 67, it is not reviewing the earlier decision of a single Judge. The hearing is not an appeal. In the present case, the Court is not hearing an appeal from the decisions of the single Judges by which the applicants' release applications were refused in the bail list.

"Special or exceptional circumstances"

I am not aware of any appellate decisions concerning the operation of s 22 of the Act. However, the 1978 Act had a similar requirement in s 30AA. That section was in the following terms: "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) a sentence passed on conviction on indictment, or (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a), 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."
There is no relevant distinction between that provision and the terms of s 22(1) of the Act. However, s 22(2) and 22(3) engage aspects of the Act which did not exist under the 1978 Act.
This Court considered the operation of s 30AA of the 1978 Act in a number of cases: see, for example, R v George Patrick O'Neill, unreported CCA (NSW) 13 May 1992; R v Wilson (1994) 34 NSWLR 1; R v Velevski [2000] NSWCCA 445; 117 A Crim R 30; R v MFA [2002] NSWCCA 49; R v Antoun [2005] NSWCCA 270; Petroulias v R [2010] NSWCCA 95. Further, there are a number of decisions of single judges of the High Court where a similar test was applied (although not pursuant to the provisions of the 1978 Act): see, for example, Robinson v The Queen (1991) 65 ALJR 519 (Gaudron J); Chew v The Queen (19915) 66 ALJR 209 (McHugh J); Chew v The Queen (No 2) (1991) 66 ALJR 221 (Toohey J); Peters v The Queen (1996) 71 ALJR 309; Marotta v The Queen (1999) 73 ALJR 265 (Callinan J). Those cases involved the exercise of the High Court's inherent jurisdiction but a test of similar stricture was employed.
In R v O'Neill Mathews J said that "one of the matters which has long been treated as constituting special circumstances under this section is the circumstances of the applicant who will, by the time his appeal is heard and disposed of, already have served a substantial portion of his sentence." In that case, an identical question of principle (the proper test of dangerousness in unlawful and dangerous act manslaughter) was pending before the High Court: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. This meant that Mr O'Neill's appeal would inevitably be delayed, probably beyond his release date. That combination of circumstances persuaded Gleeson CJ, Hunt CJ and CL and Mathews J that there were special or exceptional circumstances justifying the grant of bail.
In Robinson v R, Gaudron J took the view that the fact that the non-parole period of a sentence might expire before the appeal decision was not sufficient by itself to constitute "exceptional circumstances such as to invoke the inherent jurisdiction of this court". In that case, "no question arises as to the need for liberty pending appeal so as to prepare the appeal and, on any view, a substantial amount of the sentence would remain to be served in custody or on parole". The application was heard in 1991 and the sentence was not due to expire until 1995, although there was some likelihood of conditional release in 1992.
In Peters v The Queen Dawson J granted bail when the applicant was due to be released before the hearing of the special leave application and where the "application for special leave [was] clearly not hopeless and in my view there is a reasonable prospect that it will succeed".
In Marotta v The Queen Callinan J granted bail for the following stated reasons: "1. Special leave has been granted in all of the cases. 2. Without in any way seeking to pre-judge the appeals, I am of the view that they raise an arguable point, which may have real substance and which, if it succeeds, would probably justify a retrial. 3. Pending trial, the applicants were granted bail. 4. Substantial parts of the custodial sentences are likely to have been served and possibly completed in one case by the time this Court's decisions are published. 5. All of the applicants are, save with respect to the duration of the periods likely to be served, in the same position. 6. If the applicants are acquitted, then the benefit of such acquittals would be hollow victories. 7. The appeals in these cases will not in the normal course be heard for some months yet: there is no reason why the appeals should be given priority over other pending criminal appeals, and it may be expected that the Court would reserve its decision for some time after the hearing. 8. It seems to have been accepted that a concession was made in the Court of Criminal Appeal that some evidence had been wrongly excluded, although it has been made clear to me by the respondent to these applications that it contends that that concession did not in any way affect, or should not have affected the correctness of the convictions and the decision of the Court of Criminal Appeal. 9. I am of the view that so long as it be clear that the full terms in actual time to be served in prison are served if the appeals are refused, the public interest in the fact of the convictions and their consequences will not be adversely affected, whereas, there is, in my opinion, no public benefit or interest in the incarceration of people who might turn out to have been wrongly convicted according to law 10. Although even if the applicants make out their legal points, they may still have to demonstrate that their cases do not call for the application of the proviso, their cases are not ones in which they simply contend that the verdicts were unsafe and unsatisfactory and on that account alone should be set aside 11. There is a carefully reasoned dissenting judgment in the Court of Criminal Appeal. 12. There is no suggestion that these applicants are likely to abscond or offend whilst on bail. 13. There is, and almost all penal legislation and executive policies relating to parole, work release, home detention, rehabilitation and the like recognise, a real distinction between custody in prison and the head sentence actually imposed: and accordingly it is not inappropriate to have regard to the non-custodial aspect of a sentence in considering an application for bail."
In R v Velevski, Barr J (Spigelman CJ agreeing) referred to the approach of Callinan J as "a useful collection of factors or components which in any particular case may well be brought to bear in answering the ultimate question whether, in the instant case, there exist the necessary special or exceptional circumstances warranting a grant of bail". In R v MFA Buddin J (Stein JA and Dowd J agreeing) adopted a similar approach at [12]ff.
In Petroulias v R [2010] NSWCCA 95 Barr AJ made the following observation: "[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. It was said in R v Wilson (1994) 34 NSWLR 1 that the applicant must appear "most likely to succeed" (at 6)."
In some cases (including one of the applications in the present case) the requirement for the appeal to have merit has been elevated to a requirement that that the appeal is almost certain to succeed. In Ms Melville's application it was noted that it was impossible in a busy bail list to undertake a detailed analysis of the grounds of appeal and said "suffice to say I am not satisfied that any of those grounds will inevitably succeed. Nor, with regard to any ground, am I satisfied success is virtually inevitable". This is not a review of, or appeal from, that judgment. However, I should make it clear that I do not accept the suggestion that an applicant must establish that their appeal will either "inevitably succeed" or that success is "virtually inevitable". Neither the statutory language, nor the case law, supports such a strict test. It was rejected by the Court (Simpson, Johnson and Rothman JJ) in R v Antoun.
The comment made by the single Judge may have been based on a misunderstanding of a submission made in the Crown's bail chronology in which the observations made by Hunt CJ at CL in R v Wilson were set out. As the Court pointed out in R v Antoun, those observations did not reflect the majority position. Kirby P (with whom Sheller JA agreed) in R v Wilson did not adopt the proposition that the appeals success must be "virtually inevitable". His Honour referred to the need for there to be "something more than an arguable point" and suggested that the appeal "must be most likely to succeed".
In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulious v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is "most likely" to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v The Queen at 310-311; Marotta v The Queen at 266; R v Velovski at [24]-[25].
This approach also accords with the language of s 18(1)(j) of the Bail Act 2013 which provides: "18 (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division: (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success."
The list of factors in s 18 is specifically brought into s 22 by sub-s (3). However, those factors are subject to sub-s (1), that is, the requirement for special or exceptional circumstances. In a case where the appeal is from a conviction on indictment, the question is whether there are special or exceptional circumstances justifying the grant of bail.
The language used in earlier cases cannot supplant the statutory language or the terms of the limitation created by s 22 (and s 30AA before it). "Special or exceptional circumstances" may exist in the combination of factors or in "the coincidence of a number of features": cf the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20] when dealing with the requirement to establish "exceptional circumstances" in a murder case under the 1978 Act. It is not possible to determine or predict in advance what those features may be. Two features that frequently arise are (i) the merit of the appeal and (ii) the possibility that the applicant will have served their sentence or non-parole period, or a substantial part of it, before the appeal is determined.

The offences

The Court received North DCJ's (82 page) judgment in which his Honour set out his reasons and the basis upon which he was satisfied beyond reasonable doubt of the applicants' guilt. Both parties have also referred to snippets of the transcript of the trial and pre-trial proceedings. North DCJ noted that that the transcript of the trial exceeded 2,000 pages. There were 43 exhibits tendered by the Crown and 79 defence exhibits. None of that material is before the Court. This highlights the difficulty for a bail authority in determining the merits of a proposed appeal for the purpose of determining whether there are special or exceptional circumstances.
The offences involved what is sometimes called the "up-front fee scam". The allegation was that the applicants purported to be able to secure for the victims large loans by using funds made available by a wealthy Arab Sheikh. To secure the loan the victim was required to provide an up-front payment. Count 1 was an allegation that a $400,000 credit was paid into Ms Melville's bank account and that this financial advantage was obtained by means of a deception, namely representing that Mr El-Hilli was able to secure a loan of 18.5 million Euros to Craig Kenway. Count 2 was an allegation that $200,000 was paid into Ms Melville's account as a result of a deception, namely a false representation that a loan of 55 million Euros could be obtained for Maria Duncombe. The events giving rise to the charges took place in 2008.
The Crown relied on evidence given by the two victims as well as witnesses who assisted them to raise the money for payment of the up-front fee that would allow them to access the "Arab funding". It relied on the absence of any evidence of the existence of the wealthy Sheikh. It seems that there was a paper trail showing the money going into Ms Melville's account and a number of documents supporting the allegations made by the victims. The Crown also relied on evidence of flight. There was evidence that shortly after receiving the $400,000 and $200,000 both applicants fled overseas. There was also a body of evidence tendered as "tendency &/or coincidence evidence". This demonstrated (if accepted) that Mr El-Hilli was convicted of offences in 2003 in which a similar modus operandi was employed. He pleaded guilty to those offences but contended on the voir dire and at trial that his plea was a result of a "plea deal" with the DPP and did not represent a true admission of guilt. His previous lawyers gave evidence at the trial and disputed this. He applied to withdraw those pleas as a preliminary matter at the trial but the application was unsuccessful.
The defence case was that the Arab Sheikh truly existed and that Mr El-Hilli has substantial overseas wealth including oil and coal interests in the United States. North DCJ referred to Mr El-Hilli's evidence as "florid and grandiose" and referred to the absence of any objective evidence that supported his evidence. He rejected his evidence. He also found Ms Melville to be "overall an unsatisfactory witness" noting that "she becomes very loud and dogmatic when asked difficult or inconvenient questions".

An assessment of the merit of the proposed appeal

The submissions for both applicants on the release application rely predominantly on the asserted strength of their appeals against conviction. They rely on the written submissions that have already been filed. It is difficult to make an assessment of the strength of the appeal on the limited evidence available. Nevertheless, an assessment, however imperfect, must be made in order properly to deal with the release applications.
Ground 1 contends that the verdict is unreasonable and unable to be supported by the evidence. The merit of this ground is impossible to assess without recourse to the full record of the trial. However, on the basis of North DCJ's judgment, there appears to have been ample evidence upon which it was open (in the relevant sense) to find the offences proved.
Ground 2 alleges a miscarriage of justice arose because North DCJ did not adjourn the trial to enable the applicants to be legally represented. The Crown quotes two passages from the transcript in which each applicant expressed their willingness and desire to proceed unrepresented.
Grounds 3, 4 and 5 concern the evidence relating to Mr El-Hilli's earlier criminal convictions for similar conduct. Complaint is made that the issue of the admissibility of the evidence as tendency or coincidence was not determined before the trial proper commenced (Ground 3), that this meant that a separate trial application was not determined (Ground 4) and that the evidence was used wrongly as evidence as to Mr El-Hilli's state of mind (Ground 5).
The Crown submits that once it was determined that the trial was to proceed by Judge alone, it was unnecessary to determine the admissibility of the evidence in advance of the trial. Rather, the Crown submitted that it was open to the Judge to proceed with the trial and make decisions as to the admissibility and use of the evidence in the course of his final judgment. The Crown relies on a passage of transcript where Mr El-Hilli is recorded as suggesting or agreeing to this course. It also points out that the suggestion of a separate trial was abandoned once the decision was taken to proceed by Judge alone.
At first blush, and on the imperfect and incomplete evidence available on a bail application, it would appear to be preferable to determine the admissibility of such important evidence in advance of the trial. The judgment suggests that there may have been some confusion as to the basis upon which the evidence was received. It was repeatedly referred to as "tendency and/or coincidence" evidence. That of itself raises an alarm bell that the parties at first instance did not grapple at an early stage with the distinction between evidence adduced to prove a tendency in the accused and evidence relied on as coincidence evidence. The "need for care in identifying the basis upon which the evidence is admitted" has been commented on more than once: see, for example, DJV v R [2008] NSWCCA 272 at [30], [36] Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [117]. Ultimately, it seems that the use of the evidence to prove tendency was abandoned and it was relied on as evidence of "state of mind" and "coincidence". The question of its admissibility appeared to be related to the application by Mr El-Hilli to withdraw the plea he had entered back in 2003.
Ground 6 relates to an alleged failure to disclose the complete contracts upon which the allegations were based. The Crown says that the complete contracts were not in the possession of the Crown or the investigating police. The merit of this ground will not be known until the whole record of the trial is before the Court.
Ms Melville's submissions raise four further grounds of appeal. Ground 7 concerns the sentence imposed on Ms Melville. There is a particular complaint that the sentencing Judge failed to take into account, or give credit to, Ms Melville for the lengthy period that she was on onerous bail conditions. She asserts that his Honour's approach to this subject was inconsistent as between the two applicants. The remarks on sentence suggest that there is some substance to this latter complaint. North DCJ backdated Mr El-Hilli's sentence by an additional four months to take into account the period he was on bail. He did not make a similar adjustment to Ms Melville's sentence. While the length of the sentence imposed on Ms Melville does not appear, on its face, to be excessive in view of the sum of money involved ($600,000), the inconsistent treatment of the "quasi custody" involved in the onerous bail conditions satisfies me that Ms Melville's appeal against sentence has some, or reasonable, prospects of success. It is to be emphasised that this conclusion is based on a limited amount of material and in the absence of full argument, particularly from the Crown.
Ground 8 concerns the Crown changing its case theory. The Crown contends that this ground is based on a misunderstanding of an exchange between Ms Melville and the trial Judge. Again, without a complete understanding of all of the evidence, it is impossible to form a reasoned conclusion as to the strength of this ground.
Ground 9 is a complaint that the judge erred in his approach to the concept of joint criminal enterprise. It is contended that there was no direct evidence that Ms Melville was involved in the alleged criminal activity of Mr El-Hilli. On the hearing, Ms Melville contended that there was no direct, "reasonable evidence of pre-concert" to enliven the principles discussed in Tripodi v The Queen [1961] HCA 22; 104 CLR 1 at 7 and subsequent cases. The participation in a joint criminal enterprise is often established by indirect (circumstantial) evidence. In the present case, the evidence that the proceeds of the alleged offences ended up in Ms Melville's bank account might be seen to be reasonable (if indirect) evidence of her participation and the judgment of the trial Judge identifies a number of acts on her part that might give rise to that inference. The Crown submits that Ms Melville provides no detail as to why it was not open to draw the inference. On the material available, I am unable to identify very much substance in this ground of appeal.
Ground 10 of the appeal is a complaint about the imposition of a full time custodial sentence and the failure to find special circumstances. Those are matters involving the exercise of discretionary judgments and are better left for the Court to consider when it is seized of all of the material relevant to a proper assessment of the sentencing Judge's reasons. A total effective sentence of two years and three months for two offences involving $600,000 does not, at first blush, appear to be excessive. Having said that, Ms Melville presented a compelling and powerful subjective case. The sentencing Judge did, in fact, make a finding of special circumstances (s 44 Crimes (Sentencing Procedure) Act 1999 (NSW)) and made a substantial adjustment to the non-parole period in relation to count 1. The total effective non-parole period was one of 15 months, that is 55.55% of the total effective, partially accumulated, sentence of 27 months.
For the purposes of an assessment of whether there are "special or exceptional" circumstances, I am prepared to proceed on the basis that grounds 3, 4 and 5 are at least arguable. I am unable to make any reasoned assessment as to the strength of grounds 2, 6, 8 and 10 but the Crown's responses to those grounds, if established, would tend to defeat them. Grounds 1 and 9 appear on their face to have little merit. Ground 7 appears to enjoy reasonable prospects of success. The comments I have made about these grounds should not be used in support of arguments ultimately made on the appeal. The comments are based on a very limited amount of evidence, in the absence of full argument, and in circumstances where some assessment of the merit of the appeal is necessary to determine the issue that arises under s 32 of the Act.

Other matters relevant to s 32

In the proceedings before the single Judges of the Supreme Court, it was contended that the applicants would have substantially served their sentences (or at least their non-parole periods) before the appeal is heard and determined. That contention cannot be sustained in relation to Mr El-Hilli. His non-parole period does not expire until February 2017. It can reasonably be expected that the appeal will be determined before the end of 2015. The submission has more force in relation to Ms Melville. Her non-parole period will expire on 16 March 2016. Unless the appeal receives an urgent hearing date she will have served most of the total effective non-parole period (15 months) by the time the appeal is determined.
There is also evidence that the couple has a five year old daughter. The child is living in custody in a gaol at Emu Plains with Ms Melville. This is relevant to a consideration of the question of whether special or exceptional circumstances exist. At the time of Mr El-Hilli's original Supreme Court release application the child was living with Ms Melville in custody. This formed part of Mr El-Hilli's release application and was described by the Judge as "very sad and most undesirable". However, the Judge also noted that there was no evidence "to suggest that the child is in any danger or that her environment is adverse beyond what one might ordinarily expect". The matter did not form part of the submissions made on Ms Melville's release application before the single Judge. A statement of Detective Senior Constable Pantos tendered in Ms Melville's application said that there was "more than enough familial support at hand to care for the five year old daughter". Whether or not that is so (and it was disputed by Ms Melville on the hearing before this Court) it remains an important consideration.

Conclusion as to Mr El-Hilli's release application

Mr El-Hilli's appeal against conviction may have reasonable prospects of success. It is difficult to tell based on the limited material available.
The appeal will be resolved a long time before his sentence is due to expire and his release at the conclusion of the non-parole period will be determined by the parole authorities. Unlike Ms Melville, he is not entitled to be released at the conclusion of the non-parole period.
Mr El-Hilli has significant criminal history including offences of dishonesty dating back to 1973 when he was charged with stealing. He was convicted of forgery and false pretences in 1976. He was convicted of offences of stealing and being an accessory to armed robbery in 1987 and sentenced to imprisonment. In 2003 he was sentenced to imprisonment, including a non-parole period of 2 years, for obtaining money by deception. He has also been sent to prison for possessing a firearm with intent to commit an indictable offence although that offence occurred along time ago.
Taking into account all of those matters, I am not satisfied that there are special or exceptional circumstances justifying the grant of bail in Mr El-Hilli's case.
I would dismiss his release application and order that bail be refused.

Conclusion as to Ms Melville's release application

Ms Melville's application has more merit. I proceed on the basis that her appeal has some or reasonable prospects of success. That is a guarded assessment based on very limited material. The grounds relating to the failure to determine the admissibility and use of the evidence of Mr El-Hilli's previous criminal conduct may have impacted on Ms Melville's trial in an indirect but important way. Her association with a man with such a record, and the use of that evidence in determining his state of mind, had a capacity to impact on her case and the question of whether she had a guilty (dishonest) state of mind. It may be that if that issue had been determined in advance, a separate trial application would have been pursued. However, the application for a separate trial and for other pre-trial rulings seemed to abate once it was decided to proceed by Judge alone. Those matters must be considered in a context where Ms Melville was not legally represented at the trial. There appears to be some substance to ground 7 relating to the sentence and the apparent inconsistent treatment of the period of "quasi custody" in the two cases.
It is also the case that a substantial part of Ms Melville's non-parole period will have expired by the time the appeal is disposed of. Because the sentence is less than three years, she is entitled to be released at the conclusion of her non-parole period: s 50(1) Crimes (Sentencing Procedure) Act 1999. In the course of argument and in consultation with the list Judge and Registrar of the Court of Criminal Appeal, it became clear that the Court was in a position to hear the appeals on 30 July 2015 or 11-12 August 2015. In the end the case was listed for hearing on 12 August 2015. That alleviates this concern to some degree although, given the amount of material, there is little doubt that the Court hearing the appeal will need to reserve its decision for some time after 12 August 2015.
Ms Melville has the care of the five year old daughter and is a person with no previous convictions of any kind.
I should also refer to two matters referred to in Detective Pantos' letter insosfar as they have some relevance to a proper assessment of whether there are special and exceptional circumstances. First, it is alleged that on 20 March 2009 Ms Melville made threats to one of the witnesses. She allegedly said that she had links to an "outlaw bikie gang" and that a member of the gang may inflict injury on the witness. Secondly, both applicants fled Australia after receiving the proceeds of the up-front fee (or, as the prosecution would say, the proceeds of the crime). The proceeds of the crime have never been recovered. Attempts to extradite Ms Melville from the United Kingdom were met with persistent resistance. There were appeals including an appeal to the European Union Commission regarding the child's right to stay in the United Kingdom. Detective Pantos asserted that London Metropolitan Police also alleged that Ms Melville was involved in fraudulent activity while in England. Based on those various matters, along with her dual citizenship, the police alleged that Ms Melville is a flight risk and a risk of committing further offences if granted bail.
Against that, it appears that the alleged threat to the witness was never subject to any charge and, in any event, it is an occurrence that took place (if it took place) over five years ago. The substance of the allegations made in Detective Pantos' letter is difficult to assess although such material is often received on bail applications because the rules of evidence do not apply: s 31 of the Act.
Ms Melville was on bail for more than two years after her extradition back to Australia. This was from 25 November 2012 until 26 December 2014. There is no evidence to suggest that there was any breach of the bail or that she attempted to interfere with witnesses, take flight or commit further offences.
For the purpose of s 17 and s 22(3) of the Act I have assessed a number of "bail concerns" and the question of "unacceptable risk". In doing so, I have taken into account only the matters referred to in s 18(1). Dealing with the matter by reference to the paragraphs in that sub-section: 1. Ms Melville has no criminal history. She appears to have family ties to the United Kingdom and took flight to that country after the events giving rise to the offences for which she was convicted. I assume, in the absence of clear evidence, that she has community and family ties in Australia. 2. The offence was serious but it was not an offence of violence and was not of a sexual nature. 3. The prosecution case appears to have been strong and resulted in a finding of guilt. 4. Ms Melville has no history of violence. 5. Ms Melville has never committed an offence while on bail. She has never been subject to bail. 6. Similarly, she has no history of compliance or non-compliance with conditional liberty because she has never been subject to bail or bonds or the like. 7. The only criminal association established by the evidence is with Mr El-Hilli. There is also the suggestion of a connection through him to an outlaw motorcycle club. 8. As to length of time she will be in custody if bail is refused, if the appeal is heard in late early August, she will have spent a total of around seven to eight months in custody pending the hearing of the appeal. At this point she has spent just under six months in custody. Refusal of bail will result in her spending a further two months in custody pending the hearing of the appeal. 9. This provision is not relevant. A custodial sentence was imposed. 10. On the limited material available, I am prepared to accept that the appeal is arguable. However, it is not possible to conclude that it has strong prospects of success or that it is very likely to succeed. 11. There is no evidence that the applicant is specially vulnerable. 12. The applicant does not need to be free to prepare her defence or her appeal. The bulk of the written submissions have been already been filed. 13. The applicant has a legitimate need to be free to care for her five year old child in an environment other than a gaol. As it is the child is in custody with her in gaol, a situation that is not satisfactory and is a strong feature militating in favour of the grant of bail. 14. There is no evidence that the applicant has conducted herself in any relevant way towards the victims of the offence. 15. The Court has not been provided with any information as to the views of the victims of the offences.
The fact that she went to the United Kingdom after the commission of the offences (as alleged) and remained there for some time contesting extradition proceedings, satisfies me that there is at least some risk that Ms Melville will fail to appear: s 17(2)(a). The allegations contained in the letter from Detective Pantos concerning the alleged threat to the witness and the commission of offences in the United Kingdom, along with the facts of the present case, establishes a risk that she will commit a serious offence and/or interfere with witnesses: s 17(2)(b) and (d). On the other hand she remained on bail for a period of 2 years pending her trial without incident and now that the trial is over the prospect of her interfering with witnesses is less significant.
After anxious consideration, and taking the various matters relied on by Ms Melville at their highest, I am not satisfied that there are special or exceptional circumstances justifying the grant of bail in Ms Melville's case. If the anticipated delay in hearing the appeal were longer I may have taken a different view, given the proximity of her release date. However, the appeal can be heard in the next two months and has been listed on 12 August 2015. If the Court seized of all of the material considers that there is merit in her appeal and if there is likely to be a lengthy delay in delivering the judgment, the question of bail could be revisited at that time.
Accordingly, I would dismiss the release application and order that bail be refused.

ORDERS

I propose the following orders in each case: 1. Release application dismissed. 2. Bail is refused.

Amendments 15 June 2015 - Paragraph [23] transposition, amended so that "Barr AJ" appears after the case citation (instead of in the middle of it). 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: 15 June 2015

Bail Amendment Act 2014(NSW)

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