El Khouli v R

The Appeal

1. On 20 September 2017, the applicant filed a Notice of Intention to Appeal against both conviction and sentence. At the mention of the appeal in a call-over on 12 April 2018, the applicant's counsel informed the Registrar that the matter was not ready to proceed as transcript of the sentence judgment and summing-up were outstanding and she needed to get further instructions from the applicant.
2. The applicant did not file an application for an extension of time, and at the call-over on 24 May 2018 the applicant's appeal was taken out of the list.
3. On 8 March 2019, the applicant filed an Application for Extension of Time for Notice of Appeal, a Notice of Appeal, Grounds of Appeal, submissions and s 23C certificate.
4. The applicant relied upon four grounds for his conviction appeal as follows: 1. The verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence. 2. The judgment of the "court of trial" is wrong on questions of law, in that the "court of trial erred" in making the direction for the giving of Holly Van de Werff's evidence to the court by audio visual link from any place within New South Wales other than the courtroom, pursuant to the provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the AVL ground"). 3. There was a miscarriage of justice, for amongst other reasons, that the co-offender was permitted to be tried separately to the applicant ("the separate trial ground"). 4. Another sentence is warranted in law and should have been passed.
5. The applicant's sentence appeal was predicated upon the parity principle and, in that respect, it was contended there was a disparity between the sentences given to the applicant and the co-offender.
6. The applicant's appeal against conviction and sentence is presently listed for hearing on 5 August 2019.

Grant of Bail

1. After the arrest of the applicant on 2 November 2012, the applicant was refused bail until 20 December 2012.
2. The applicant was refused bail following the jury's verdict but subsequently released on bail on 20 December 2016. Bail was again refused on 5 May 2017 following the conclusion of the proceedings on sentence. The applicant has remained in custody since that date, namely, for a period over two years.

The Present Application

1. On 9 April 2019, the applicant filed a release application. After hearing the release application on 24 May 2019, the Court announced that the release application was refused and that reasons were to be given in due course. These are our reasons for decision.

Jurisdiction and Power of the Court

1. The Court has jurisdiction to entertain the application by virtue of the refusal of a release application by the District Court: see s 66(1) of the Bail Act 2013 (NSW) and Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 ("Noufl") at [60] (per Hamill J). Further, the provisions of s 22(1) of the Bail Act are attracted because a Notice of Intention to Appeal has been filed (s 22(1) applies in circumstances where an appeal is pending in the Court of Criminal Appeal: see s 10(2)(b) of the Criminal Appeal Act 1912 (NSW); Obeid v R (No 2) [2016] NSWCCA 321 ("Obeid") at [4] and Noufl at [14]).
2. Section 22 is in the following terms: 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.
3. Pursuant to s 22(1), the applicant must establish that special or exceptional circumstances exist to justify the grant of bail, notwithstanding the offence for which the applicant was convicted were not show cause offences: El-Hilli and Melville v R [2015] NSWCCA 146 ("El-Hilli") at [11] (per Hamill J, with whom Simpson and Davies JJ agreed). The requirement to establish special or exceptional circumstances is at least as onerous as the requirement to show cause: El-Hilli at [11].
4. Where s 22 is engaged there are two stages. The applicant must first demonstrate special or exceptional circumstances. Subject to special or exceptional circumstances being found, the Court must then apply the unacceptable risk test and "do so by application of the exhaustive list of matters set out in s 18". In El-Hilli at [13], Hamill J observed: [13] … The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special or 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). (See approved in Obeid at [10]).

Special or Exceptional Circumstances Ground

1. Two factors were relied upon, in combination, by the applicant in support of the release application and, in particular, the demonstration of special or exceptional circumstances for the purpose of s 22 of the Bail Act in this matter both of which went to the strength of the applicant's appeal: 1. the separate trial ground in the applicant's conviction appeal was strong; and 2. the strength of the sentencing appeal having regard to the disparity between the sentence imposed upon the applicant and that imposed on his co-offender, Mr Shousha.

Strength of the Appeal

1. Recently, in R v Williams [2018] NSWSC 994 ("Williams"), Davies J gave consideration of a detention application made under s 22 (particularly by reference to reliance upon the prospects of success of appeal as a factor in demonstrating special or exceptional circumstances for the purposes of that provision). His Honour stated (at [11]-[13]): [11] In Petroulias v R [2010] NSWCCA 95, Barr AJ said of the test for establishing special or exceptional circumstances under s 30AA of the Bail Act 1978 (NSW) (which was in relevantly identical terms to s 22(1)), that an applicant has to show much more than that the grounds seem arguable. His Honour made reference at [34] to R v Wilson (1994) 34 NSWLR 1 in which Kirby P (Sheller JA agreeing) said at [6] that the applicant must appear "most likely to succeed". [12] In R v Antoun [2005] NSWCCA 270 the Court (Simpson, Johnson & Rothman JJ) said: [14] It was argued on behalf of the applicants that the grant of special leave is an indicator that the appeal to the High Court "is most likely to succeed" and that "there is a real prospect that the conviction might be set aside". In our opinion this overstates the position. This Court has been reminded by the Crown that it has been said that bail pending appeal will be granted only where the ground of appeal is so strong that it is virtually "certain to succeed", and obviously so: R v Wilson (1994) 34 NSWLR 1. We do not accept that s30AA is so limited. [15] The judgment which has frequently been cited was, in fact, a minority position in Wilson. In Wilson, Kirby P, with whom Sheller JA agreed, said: "... it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed." It is to be noted that, in that passage, Kirby P and Sheller JA seem to envisage that there may be grounds other than the merits of the appeal which would satisfy the s30AA test. Where the application is based only on the ground of the merits of the appeal, the passage has application but these remain open to the possibility that there are potentially other circumstances that might merit the grant of bail. [13] In El-Hilli, Hamill J (Simpson and Davies JJ agreeing) said of these cases: [24] … 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. [25] 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". [26] 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 [sic] [R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445] at [24]-[25].
2. Reference should also be made to El-Hilli at [28]-[29]. Hamill J observed: [28] 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. [29] 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.
3. Mention may also be made of the discussion by Hamill J in Noufl at [5], as to matters applicable for consideration in the assessment of special or exceptional circumstances for the purpose of s 22, as follows: [5] … As a general proposition the matters informing the question whether special or exceptional circumstances are established include first, whether the proposed appeal or application for leave to appeal has reasonable prospects of success and second, whether it is likely that the sentence subject to the appeal will have expired or largely expired before the appeal has been heard. Other matters, more generally associated with an ordinary bail application, are also relevant to a consideration of an application governed by s 22. The "unacceptable risk" test and the criteria identified in s 18 of the Bail Act are imported into the provision by s 22(3).
4. Two considerations arise in that respect.
5. First, a distinction appears to have been drawn on the authorities, when the grounds of appeal are advanced as a factor demonstrating special or exceptional circumstances, between cases where the strength or merit of an appeal has been relied upon in isolation, and those where the applicant relied upon that factor in combination with other factors including whether the applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal.
6. It is true that Barr AJ (with whom Hodgson JA and Rothman J agreed) in Petroulias v R [2010] NSWCCA 95 at [34] stated, that where the grounds of appeal are put forward as "the only or the principal factor" (emphasis added) demonstrating special or exceptional circumstances, an applicant must show more than that the grounds seem arguable (referring to the test in Wilson v R (1994) 34 NSWLR 1 ("Wilson") at 6, requiring an appeal to be "most likely to succeed").
7. It may be observed, in that respect, Kirby P (with whom Sheller JA agreed) in Wilson, adopted the approach, for the purposes of s 30AA of the Bail Act 1978 (NSW) (repealed by s 100 of the Bail Act 2013, with effect from 20 May 2014), of assessing whether the applicant for bail had demonstrated special or exceptional circumstances by examining whether (potentially) grounds of appeal constituted a "most arguable point" or were "very likely to succeed" (at 6). His Honour did not specifically consider whether the combination of factors may have resulted in a less stringent test, but his discussion under the heading "Need for a powerful case of error in the trial to support bail" was undertaken after the rejection of all the other factors relied upon by the applicant to demonstrate special or exceptional circumstances.
8. Hamill J later found in El-Hilli that such a requirement would only operate where the applicant relied "exclusively on the strength of the appeal" (at [26]). His Honour contrasted that situation with a bail application where the merit of the appeal was relied upon as only one part of a combination of factors said to demonstrate special or exceptional circumstances. Further, at [29], his Honour referred to special or exceptional circumstances being established by a combination of factors. In that context, his Honour referred to two factors relied upon in that matter: the merit of the appeal and the period served in custody by the time of the hearing of an appeal, as being factors relied upon in combination to demonstrate special or exceptional circumstances.
9. The application by Davies J of the test "most likely to succeed" in Williams, in considering whether the merits of the appeal warranted a finding of special or exceptional circumstances, arose in a context where the respondent resisted a detention application based solely on the strength of the Crown case (see at [25] and [38]).
10. Secondly, where the ground of appeal is put forward in combination with other factors to demonstrate special or exceptional circumstances, the relevant criteria in assessing the merits of the appeal would appear to be whether the grounds relied upon by the applicant in the appeal were reasonably arguable or that there were reasonable prospects for the appeal.
11. In El-Hilli, Hamill J stated that the applicable question, where the merits of the appeal are raised in combination with other factors to demonstrate special or exceptional circumstances, was "whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success" (at [26]) (both descriptors are used intermittently in the consideration of the merits of the appeal of the applicant in that case (see at [45])). Reference was made in support of that approach in Peters v The Queen (1996) 71 ALJR 309 ("Peters") (at 310-311); Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4 ("Marotta") (at 266) and R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445 ("Velevski") (at [24]-[25]).
12. Dawson J in Peters (in the context of application for special leave to the High Court of Australia), considered whether there were "reasonable prospects for success" of the appeal (at 310-311). Callinan J in Marotta, referred to "an arguable point, that may have real substance and which, if it succeeds, would probably justify a retrial" (at [18]). Barr J in Velevski, reiterated the approach in Marotta.
13. Ultimately, little turns on those considerations as the applicant posed the question for the establishment of special or exceptional circumstances for the conviction appeal as being whether the grounds of appeal were "strong".
14. In substance, the sentencing appeal also centred upon the strength of the appeal. Although the applicant sought to meet the special and exceptional circumstances test by contending that, by its nature, a disparity in sentence was exceptional, the ground necessarily raised, in substance, a question as to the merits of the appeal.

Examination of the Special or Exceptional Case for the Applicant

1. In written submissions, the applicant relied, in fact, upon three grounds of appeal in support of the first factor relied upon to demonstrate there was special or exceptional circumstances: namely, the AVL and separate trial grounds and the sentencing appeal based on a parity issue. By oral submissions the applicant only relied upon the separate trial ground and parity.

Separate Trials

1. Mr Shousha was tried separately before a jury presided over by Flannery DCJ from 2 to 24 August 2017. The applicant submitted that the decision to permit the applicant be tried separately was contrary to authority that the interests of justice demanded that the jury should have the "whole picture presented to them and not half of it": Collie, Kranz & Lovegrove v R (1991) 56 SASR 302 (per King CJ).
2. We do not consider this ground may be described as strong or likely to succeed.
3. Mr Shousha sought a separate trial, on the basis that the tendency evidence that was admissible against the applicant (namely, the evidence that the applicant had previously planned to set fire to a restaurant to obtain an insurance payout) was not admissible against him and that the evidence was highly prejudicial. In an ex tempore judgment delivered on 19 October 2016, Jeffreys DCJ held that "there is a real risk that if Mr Shousha is tried with [the applicant] that it would result in a positive injustice to Mr Shousha". Accordingly, his Honour ordered that the applicant and Mr Shousha should be separately tried. The applicant's trial proceeded first.
4. In circumstances where the tendency evidence was admissible against the applicant but not Mr Shousha, a contention that it was not open to a trial judge to find that a positive injustice would result to Mr Shousha if he were tried together with the applicant must face some significant difficulties.
5. The applicant has not advanced any other consideration that might demonstrate a miscarriage of justice, particularly as to any prejudice suffered by the applicant as a result of the separation of trial. There was no opportunity, for example, for a "cut-throat defence" if the trial were separated.
6. We do not consider the applicant has succeeded in demonstrating this ground of the conviction appeal is strong.
7. We note for completeness that there is merit in the Crown's submission that the applicant faced a substantial circumstantial case based upon the following: 1. Eyewitness testimony that identified the applicant as present in the café in the hours immediately preceding the fire; 2. Evidence that supported the Crown's case that the applicant and Mr Shousha were in a joint criminal enterprise together, including evidence of phone calls made on the night, evidence that the two men were seen together on the night, evidence from Ms Van der Werff (the applicant's girlfriend) that the applicant had been absent from the bedroom during the night, evidence that when the applicant returned, he was with Mr Shousha and that Mr Shousha had fresh burn injuries, evidence that Mr Shousha's car was seen travelling to the café before the explosion and away from the café immediately after the explosion, and that there were two men in the car; 3. Tendency evidence which indicated that the applicant had previously made plans to burn down a restaurant by leaving a gas cooker on, so as to obtain an insurance payout; 4. Evidence of lies that were told by the applicant to police (which was well capable of demonstrating a consciousness of guilt); 5. Evidence that the applicant directed others (namely, Ms Van der Werff and Ms Jones) to lie (which was also capable of demonstrating a consciousness of guilt); and 6. Evidence of motive, in particular, evidence that the business was not doing well and evidence that the applicant had been involved in the taking out of the insurance policy and had attempted to obtain payment under the policy in the day immediately after the fire.

Parity

1. Mr Shousha was tried before a jury presided over by Flannery DCJ from 2 August 2017 to 24 August 2017. Mr Shousha was found guilty of count 1 on the indictment (dishonestly damage by fire for financial gain) on 24 August 2017. On 23 November 2017, Mr Shousha was sentenced to a period of imprisonment for 4 years commencing 5 July 2017 and expiring 4 July 2021 with a non-parole period of 2 years to expire on 4 July 2019.
2. As earlier mentioned, the applicant received an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 5 years and 6 months for three offences, namely, dishonestly damaging property by means of fire and two offences of doing an act with intent to pervert the course of justice. The applicant's co-offender, Mr Shousha, was only charged with a single offence of dishonestly damaging property by means of fire.
3. In those circumstances, it is difficult to see how the applicant may sustain a contention that there was a failure to apply principles of parity.
4. It may be recalled in that respect that those principles were discussed in Why v R [2017] NSWCCA 101 at [43]-[45] as follows: [43] The principles for the application of the parity principle were summarised by Garling J (with whom Macfarlan JA and R S Hulme J agreed) in Rees v R [2012] NSWCCA 47 at [50]: (1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: […]; (2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: […]; … [44] In Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [31] French CJ, Crennan and Kiefel JJ explained: The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise... [45] Further, their Honours noted, at [32], that: A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.
5. It may also be noted that the applicant did not perform any comparison of the relevant objective and subjective factors of the applicant and Mr Shousha either in the bail submission or in the submissions in support of his sentence appeal. It may be noted Flannery DCJ found there were significant differences between the applicant and Mr Shousha's objective and subjective cases including the role of the offenders, Mr Shousha's higher prospects of rehabilitation and absence of a criminal record and the injuries which Mr Shousha sustained in the commission of the offence.

Conclusion

1. The applicant has not demonstrated that the grounds of appeal upon which attention was directed for his bail application were strong. Nor has the applicant demonstrated that he is likely to succeed in either the conviction or sentence appeal. That being the only factor relied upon to demonstrate special or exceptional circumstances it must follow that the applicant has failed to satisfy the threshold criteria under s 22(1) of the Bail Act and that bail must, therefore, be refused.
2. We confirm our judgment to dismiss the release application made by the applicant.

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: 22 July 2019