Macdonald v R; Obeid v R; Obeid v R

Supreme Court of NSW|2021-12-14|Before: Wilson J, Fullerton J

Counsel: P Strickland SC / C Parkin (Applicant) S Callan SC / G Marsden (Crown)

Solicitors: HWL Ebsworth Lawyers (Applicant) Solicitors for Director of Public Prosecutions (NSW) (Crown)

Counsel: A Francis (Applicant) S Callan SC / G Marsden (Crown)

Solicitors: Michael Bowe Solicitor (Applicant) Solicitors for Director of Public Prosecutions (NSW) (Crown)

Counsel: B Walker SC / M Kalyk (Applicant) S Callan SC / G Marsden (Crown)

Solicitors: Murphy's Lawyers (Applicant) Solicitors for Director of Public Prosecutions (NSW) (Crown) File Number(s): 2021/00303738; 2021/00344194; 2021/00307207 Publication restriction: Nil

Judgment

HER HONOUR: On 19 July 2021 Fullerton J, sitting as a judge alone, without a jury, returned verdicts of guilty against each of the applicants with respect to the charge they jointly faced, being conspiracy to commit misconduct in public office: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858 ("the verdict judgment"). This is a common law offence, and the penalty for it is at large. Ultimately, her Honour sentenced each of the applicants to a term of imprisonment.
Mr Macdonald ("the applicant Macdonald") is to serve a term of 9 years and 6 months imprisonment, with a non-parole period ("NPP") of 5 years and 3 months. His earliest possible release date is 20 January 2027. Edward Obeid ("the applicant E Obeid") was sentenced to a term of 7 years imprisonment, with a NPP of 3 years and 10 months. He will be eligible for release to parole on 20 August 2025. A sentence of 5 years imprisonment was imposed upon Moses Obeid ("the applicant M Obeid") with a NPP of 3 years fixed. He will be eligible for release to parole on 20 October 2024: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) (2021) 394 ALR 125; [2021] NSWSC 1343 ("the sentence judgment").
The applicants have each filed Notices of Intention to Appeal ("NIA") in the Registry of the Court of Criminal Appeal ("CCA"), signalling an intention to appeal against their respective convictions and sentences, or to seek leave to appeal insofar as that is necessary. With those applications pending before the CCA each offender now applies to this Court for a grant of bail.

The Relevant Law

The applications for release are governed by the Bail Act 2013 (NSW).

The Jurisdiction of the Court

Jurisdiction to hear the applications is derived from s 62 of the Act, which provides: 62 Power to hear bail application if sentence or conviction appealed A court may hear a bail application for an offence if - (a) the court has convicted a person of the offence, and (b) proceedings on an appeal against sentence or conviction are pending in another court, and (c) the person has not yet made his or her first appearance before the court in the appeal proceedings.
As already noted, the applicants were each convicted of an offence of conspiracy to commit misconduct in public office by this Court, constituted by Fullerton J, and have each filed a NIA. The applicant Macdonald filed a NIA on 26 October 2021; E Obeid filed a NIA on 20 October 2021: and M Obeid filed his NIA on 21 October 2021. Proceedings on appeal are thus pending before the CCA, satisfying s 62(b) of the Act. The Notices having been filed less than two months ago, none of the applicants have yet appeared before the CCA: s 62(c) of the Act is satisfied. The Court has jurisdiction to hear a release application from each of the applicants.

Section 74 of the Bail Act - Edward Obeid

With respect to the applicant E Obeid, s 74(1) of the Bail Act is enlivened and there is a preliminary restriction upon the power of the Court to hear his release application. Section 74(1) provides: 74 Multiple release or detention applications to same court not permitted (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.
The applicant E Obeid made an application for bail before Fullerton J immediately after he was sentenced. The application was, in substance, refused: R v Edward Obeid (Supreme Court (NSW), 22 October 2021, unrep). The Court can only entertain the present application if there are "grounds for a further release application". Counsel for the applicant relied upon the grounds set out at s 74(3)(b) and (c) of the Bail Act, which are in these terms: (3) For the purposes of this section, the grounds for a further release application are - (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, […]
It was submitted on behalf of E Obeid that there is material information to be presented that was not provided to Fullerton J, being different draft grounds of appeal to those tendered to her Honour, and draft submissions in support of the new draft grounds of appeal, which were not available at the time of the first bail application. Further, it was contended that there was a change in the circumstances relevant to the grant of bail, in that the conditions of bail proposed to the Court today, but not to Fullerton J in October, include the involvement of an acceptable person as contemplated by s 26 of the Act.
The Crown submitted that neither of these features amounted to a material change such as to satisfy the requirements of ss 74(3)(b) or (c) of the Act. The prospect of an acceptable person playing a role in any grant of bail was not a matter that was of concern to Fullerton J when the earlier bail application was heard and refused, and thus cannot be regarded as a change of any real relevance to the determination of an application for bail. The Crown accepted that better articulated grounds of appeal could perhaps amount to information material to the application that was not before the court on the last occasion. It submitted however that, in circumstances where Fullerton J drew the applicant's attention to the difficulties a trial judge who was also the tribunal of fact would have in assessing the merits of an appeal, the applicant persisted with his application.
For the reasons identified by the Crown, I am not persuaded that the proposal for the involvement of an acceptable person is sufficient to amount, in this instance, to a change in circumstance relevant to the grant of bail. A condition of bail requiring an acceptable person to enter into an agreement under which the person agrees to forfeit a specified amount of money if the person granted bail fails to appear before court in accordance with a bail acknowledgment, or to deposit security with the court knowing that the security will be forfeited if there is such a failure, are conditions directed to the risk of flight, a bail concern pursuant to s 17(2)(a). I do not understand the Crown to contend that the applicant poses a flight risk, and nor was this a relevant consideration when the decision was made to refuse bail on 22 October 2021.
In those circumstances, that the applicant can offer the involvement of an acceptable person who will deposit or agree to forfeit security should the applicant fail to appear in answer to bail is not a consideration of any real substance. It cannot amount to a change in circumstances relevant to a grant of bail.
The second feature relied upon by the applicant has some substance in the circumstances of this case.
The draft grounds of appeal that the applicant now proposes to advance in support of his appeal against conviction differ from those placed before her Honour and, of some importance, they are supported by draft submissions. In circumstances where s 22 of the Bail Act applies to any application heard by the Court, that the applicant has now refined his proposed grounds, and provided draft submissions in support of the appeal, is significant. On the basis of the more carefully pleaded draft grounds, and the draft submissions articulating the way in which the applicant will advance his appeal, the Court is enabled in a way that did not apply in October to make some assessment of the merits of the proposed appeal, at least to the extent necessary when considering a grant of appeals bail.
Whilst I accept the point made by the Crown, that the applicant should bear the consequences of his decision to pursue a bail application before Fullerton J knowing that her Honour could not consider the issue of the merits of any appeal, I do not think he should be prevented from pursuing an application that can be fully determined by a court, in a way that was not reasonably possible in October 2021. The trial judge, understandably, was not in a position to make an assessment of the merits of complaints concerning her decisions. Although the Court constituted by a different single judge is necessarily less well informed than was her Honour as to the evidence led at trial and the arguments put and judgments there made, and is, arguably, in a worse position to determine this application, the constraint that operated on Fullerton J does not affect the Court as presently constituted.
Those matters lead me to conclude that the availability of more settled draft grounds of appeal and draft submissions in support does amount to material information relevant to the grant of bail under consideration. Consideration of the merits or otherwise of the proposed appeal is ordinarily regarded as important when determining whether s 22 of the Bail Act has been met. A change in the information available to the Court which is material to that assessment is enough to satisfy s 74(3)(b) of the Act.
Having so concluded, it is open to the Court to hear a further bail application from the applicant E Obeid.

Section 22 of the Bail Act

Section 22 of the Act limits the Court's power to release the applicants on bail. This is a hurdle the applicants must meet if bail is to be granted. To succeed in their respective applications, each applicant must establish that "special or exceptional circumstances exist" to justify a grant of bail. Section 22 is, relevantly, in these 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) […]. (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.
The operation of s 22 was discussed in El-Hilli and Melville v R [2015] NSWCCA 146. Hamill J, with the concurrence of Simpson J and Davies J, said, at [13]: " … First, where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special [or] 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 [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)."
The hurdle constituted by s 22 is in place for good reason: the applicant to whom it applies has been convicted and sentenced by a court. He or she is not a person entitled to the presumption of innocence, and the right to liberty has been abrogated.
Although in a different context, the High Court, referring to a grant of bail following conviction and sentence said, in United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60, at [39]: "In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned: − makes the conviction appear contingent until confirmed; − places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; − encourages unmeritorious appeals; − undermines respect for the judicial system in having a "recently sentenced man walking free"; − undermines the public interest in having convicted persons serve their sentences as soon as is practicable." (Footnote omitted)
As was observed in Re Clarkson [1986] VR 583 at 584, the circumstances put forward as special or exceptional must be "strong enough to overcome the powerful considerations of a general character which militate against the grant of bail pending appeal" if a grant of bail is to be allowed to the convicted and sentenced offender. That principle was cited with approval in this State in R v Williams [2020] NSWCCA 348 at [9].
To succeed on an application for bail following conviction and sentence, the applicants must first persuade the Court that special or exceptional circumstances exist to justify a grant of bail. What might constitute special or exceptional circumstances is neither defined nor closed. As Hamill J observed in El-Hilli and Melville, two features commonly relied upon with respect to s 22 are the merits of the pending appeal, and the prospect that the applicant will have served a significant portion of the sentence prior to the resolution of the appeal.
The applications must be assessed within that statutory framework, and having regard to the relevant authorities.

The Proposed Appeals

A significant part of the case of each applicant in support of a grant of bail was that the appeal against conviction to be pursued by each was meritorious and this, together with other features particular to each, established the s 22 criterion of "special or exceptional circumstances". It is convenient to consider that aspect of the application, which is common to all, before turning to the individual cases advanced by each applicant.
Some short background to the trial proceedings is useful to form an understanding of the contentions of the applicants as to asserted errors in the conduct of the trial.
The applicant Macdonald was a Member of the State Parliament from 1988 to 2010. He held the position of Minister for Mineral Resources between August 2005 and November 2009. The applicant E Obeid was also a Member of Parliament during much of this period. A company owned and controlled by E Obeid, his son (the applicant M Obeid) and other members of the Obeid family, purchased a large rural property, Cherrydale Park, in the Bylong Valley near Mount Penny in September 2007.
The allegation against the three applicants was that, between 1 September 2007 and 9 May 2008, they reached an agreement that the applicant Macdonald would commit misconduct in public office by carrying out particular acts in connection with the granting of an exploration licence at Mount Penny that concerned the interests of the applicant E Obeid or his son, the applicant M Obeid, or other family or associates, knowingly in breach of his duties and obligations of impartiality or confidentiality as a government minister. The conspiratorial agreement as averred in the indictment was at a high level of generality.
The trial proceeded on the basis that, to establish the charge, the Crown had to prove to the criminal standard as an indispensable fact, as that phrase is used in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, that the applicant Macdonald knew by 9 May 2008 that the Obeids owned property in the Bylong Valley near Mount Penny.
The Crown particularised its case by adducing evidence of eight specific acts of misconduct said to have been committed by the applicant Macdonald between 9 May 2008 and 13 January 2009, performed in fulfilment of the agreement reached between the three applicants. The trial judge found that five of the eight instances of alleged misconduct were proved by the Crown at trial, and that the charge was proved to the criminal standard against all three applicants.
The trial proceeded intermittently (due to the pandemic) between an extended period from February 2020 to February 2021, and over 77 hearing days. The evidence was voluminous and complex. Difficult issues of law fell to be determined by the trial judge, with her Honour having the additional role of performing the function of the tribunal of fact. The verdict judgment extends to in excess of 560 pages, with 2047 paragraphs, an Annexure, and 2015 footnotes. The sentence judgment is also lengthy.
The applicants have each provided draft proposed grounds to the Court. The proposed grounds follow.
Mr Macdonald raises seven grounds of appeal against conviction: "Ground 1: The trial judge erred in law concluding that it was not necessary for the Crown to prove that Mr Macdonald and the asserted co-conspirators agreed, knew and intended that the misconduct that Mr Macdonald was to engage in would be serious and meriting criminal punishment. Ground 2: The trial judge erred in law in accepting that an agreement that Mr Macdonald would do "what he could, if and when the opportunity presented" was capable of constituting a conspiratorial agreement. Ground 3: The trial judge erred in law in failing to direct herself that the accused did not need to know that the misconduct that Mr Macdonald was to engage in would not have been engaged in "but for" the asserted improper purpose. Ground 4: The trial judge erred in law by failing to direct herself, as required by Criminal Procedure Act 1986 (NSW) s 133(2), that it was an indispensable intermediate fact essential to proof of the Crown case that Mr Macdonald knew, by no later than 8 May 2008, that the Obeids owned a property near Mount Penny that was outside and to the west of the western border of AUTH 287. Ground 5: The trial judge erred in failing to give herself a Mahmood direction, as required by Criminal Procedure Act 1986 (NSW) s 133(2). Ground 6: The trial judge failed to give reasons for her Honour's conclusion that the conspiracy was formed on or before 9 May 2008. Ground 7: The verdict was unreasonable or otherwise unsupported by the evidence."
He advances eight grounds of appeal against sentence.
Edward Obeid proposes the following grounds of appeal against conviction: "Ground One. The Indictment was defective. Ground Two. The trial judge erred in law in admitting evidence of various "representations" on the part of Macdonald and Moses as admissions on the part of the applicant. Ground Three. The trial judge erred in the conclusion that there was reasonable evidence of Edward Obeid's participation in the conspiracy by: (a) relying upon evidence which was either not admitted for that purpose or not available for the use ascribed to it, and, (b) in making material factual findings which were not open on the evidence and not advanced by the Crown. Ground Four. The trial judge failed to direct herself as requested in respect of admissions relied upon by the Crown to demonstrate a consciousness of guild on the applicant's part in accordance with Edwards v The Queen. Ground Five. [a] The trial judge failed to disclose reasons in concluding that the Crown had established an indispensable fact namely that the conspiracy was forged between Moses Obeid and Ian Macdonald on or before 9 May 2008. [b] The trial judge failed to provide reasons excluding the innocent hypotheses advanced on behalf of Moses Obeid that raised a doubt as to his entering into the conspiracy on or before 9 May 2008. Ground Six. The verdict is unreasonable."
Moses Obeid proposes the following grounds of appeal against conviction: "1. The Trial Judge erred in finding that the conspiracy alleged was available at law and, in doing so, erred in convicting the Applicant. 2. The verdicts were unreasonable or unable to be supported by the evidence or, alternatively, the Trial Judge failed to provide adequate reasons in support of the conviction. 3. The Court failed to provide adequate reasons for verdict. 4. The Trial Judge erred in finding that it was not necessary that Applicant agreed, knew and intended that Macdonald would commit acts that were serious and meriting criminal punishment and, in so doing, erred in convicting the Applicant. 5. The Trial Judge misdirected herself as to the application of the 'but for' test in the present case. 6. The Trial Judge erred in failing to consider and/or failing to give a Shepherd direction as sought by the Applicant at Trial. 7. The Trial Judge failed to consider whether the Crown's failure to call evidence from important witnesses meant that her Honour should have entertained a reasonable doubt about whether the Crown had established the case. 8. The Trial Judge erred in finding a case not put by the Crown. 9. The Trial Judge erred in making critical factual findings that were not open."
In these distinct grounds of appeal concerning her Honour's rulings and verdict judgment, there are consistent themes across the individual expressions of them that raise both questions of law and of fact. As can be seen there is, broadly, a challenge to the validity of the charge brought against the applicants on a number of bases, and to the conclusion of the trial judge that the charge was valid; her Honour's conclusions as to what was required in proof of the charge is impugned; the adequacy of her Honour's reasons is disputed; it is asserted that the trial judge was in error in the directions she gave to herself as tribunal of fact; errors in findings of fact are raised; and each of the applicants disputes the adequacy or sufficiency of the evidence adduced to establish the charge.
Senior Counsel for the applicant M Obeid contended that the grounds advanced represented "a serious intent to mount a serious appeal with what might be regarded as reasonably arguable prospects" and it is clear, even on the very limited information available to me, that there are real issues to be raised before the CCA.
The complaint as to the validity of the charge and the approach her Honour took to the elements of the offence may be unique, in that there appears to be no jurisprudence that informs either consideration fully, or even at all. The CCA may well be asked to consider and determine an unprecedented issue. This feature alone makes it at least likely that there will be a grant of leave insofar as leave is required. A grant of leave, however, does not imply that an appeal will necessarily succeed.
The high level of generality of the wrongful conduct said by the Crown to have been the object of the conspiracy is another matter going to the validity of the charge, and one which each of the applicants raise. To be unlawful, the conduct must be such as to merit criminal sanction. The applicants complain that the charge, as averred, imported such vagueness and generality as to be incapable of constituting a criminal conspiracy. It is argued that her Honour was in error in concluding that an agreement for the applicant Macdonald to do what he could, should an opportunity be presented to further the agreement, in effect to abuse his powers if he had an opportunity to do so, was inadequate to be held to be a conspiratorial agreement.
The applicants also raise concerns as to the conclusions of the trial judge as to what was necessary in proof of the charge, with respect to both the mens rea and the actus reus, and the legal directions given on those aspects of the matter. Of the former, there are questions as to proof of what was in the minds of the conspirators, and when relevant knowledge was obtained, if it was, particularly in circumstances where the acts relied upon by the Crown as inferentially pointing to the existence of a conspiratorial agreement all occurred after the final date of the conspiracy, 9 May 2008. It is argued that her Honour's conclusion that it was not necessary for the Crown to prove beyond reasonable doubt that the applicants E Obeid and M Obeid knew that the applicant Macdonald knew of the Obeid ownership of the Mount Penny property and of its location, was wrong in law.
There are also questions raised as to whether the Crown was obliged to prove that the co-conspirators knew that the acts said to have been effected by the applicant Macdonald in furtherance of the conspiratorial agreement were such as to merit criminal sanction, and whether the trial judge determined this matter correctly. Her Honour gave careful attention to this aspect of proof of the charge, which she regarded as requiring consideration of what the applicants needed to know or appreciate or understand in order that what they had agreed the applicant Macdonald would do with respect to the granting of an exploration license at Mount Penny, touching upon Obeid interests, would amount to misconduct in public office. It is contended by the applicants that the conclusion that the trial judge reached, that the Crown did not have to prove that the conspirators knew or intended that the acts of misconduct the applicant Macdonald was to commit were so serious as to merit criminal punishment, was wrong.
Another theme captured by the proposed grounds of appeal is that her Honour's reasons were deficient with respect to a number of matters she had to determine, and that the basis upon which some findings were made and conclusions drawn cannot be appreciated or scrutinised, contrary to the requirements of s 133 of the Criminal Procedure Act 1986 (NSW). One of those matters is said to be the question of proof of what each conspirator knew of the nature of the acts of asserted misconduct. Another is the conclusion of the trial judge that the conspiratorial agreement had been reached by 9 May 2008, an essential fact having regard to the framing of the indictment. It is contended that the verdict judgment does not permit proper scrutiny of her Honour's conclusions, and nor does it expose the reasons for the rejection of other possible explanations for the conduct relied upon by the Crown to go to proof of the charges that were advanced by the applicants as consistent with innocence. It is argued that the failure to explain the rejection of other hypotheses consistent with innocence was particularly stark having regard to a substantial body of evidence that tended to undermine any conclusion that a conspiratorial agreement had been reached, and reached by 9 May 2008.
There are also complaints encompassed by the proposed grounds concerning her Honour's conclusions as to the admissibility of certain evidence, including evidence of representations made by the applicant E Obeid dealt with by her Honour in R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15); and the directions she gave to herself as tribunal of fact, including the asserted failure to give a direction in accordance with Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1, as to witnesses not called in the Crown case.
The final broad theme that grounds advanced by each of the applicants raises is that of the adequacy of the evidence to sustain the verdicts returned. Each applicant contends that the evidence was not sufficient to sustain the verdict returned, and her Honour was in error to return the verdicts she did.
The Crown disputes the contention that any of the proposed grounds raised by the applicants can be regarded as enjoying reasonable prospects of success. In the Crown's written submissions some specific arguments were raised going to particular grounds, but the Crown approached the matter by accepting for present purposes that the Court might take an approach consistent with that described in Gould v R (Cth) [2021] NSWCCA 27, at [35], where the court: "[…] proceeded on the basis that the application is an arguable one, as the applicant submits. Equally no doubt, there is an argument that can be made against the application. Consideration of the merits of those arguments should be left to the Court constituted to hear the application.
Broadly, the Crown argued that the trial judge gave careful consideration to the matters raised by the applicants at trial to impugn the validity of the charge on indictment, and provided equally careful attention to the reasons she gave for the conclusions she reached. The Court was referred to Hopgood v R [2019] NSWCCA 246 where the CCA stressed the importance of considering the reasons given by a trial judge sitting without a jury "fairly and as a whole" (at [47]).

The Evidence for Ian Macdonald

The applicant relies upon an affidavit of his wife, Anita Gylseth, sworn on 7 November 2021. Ms Gylseth deposes that she has a 31 year old daughter, Ms B, who has an intellectual disability and requires constant supervision. Although Ms Gylseth has access to disability support services four days each week between 9.30am and 4.30pm to assist with the care of Ms B, she is solely responsible for her daughter's care outside those hours. Prior to the applicant's incarceration, he gave his wife considerable assistance with her daughter's care. Ms B's behaviour has become more difficult to manage since the applicant's entry into custody, and Ms Gylseth is struggling to manage her care alone. She is finding the burden of caring for her daughter without respite detrimental to her health and well-being, and believes that the separation from the applicant has also had an adverse impact upon Ms B.
The family has not been able to see the applicant via AVL services due to what are understood to be too few video call appointments available to prisoners, or equipment malfunction within the relevant correctional centre ("CC").
The applicant's solicitor, Ronald Heinrich, has sworn three affidavits: the first on 22 October 2021, and the second and third on 13 December 2021.
In his first affidavit Mr Heinrich provided a chronology of events relevant to the prosecution and conviction of the applicant, for this matter, but also for another separate prosecution, pointing out that, despite the proceedings against him, and the prospect of the imposition of custodial sentences, the applicant has complied with bail since being charged in 2015. A detention application following conviction for this offence was dismissed by the Court (constituted by Fullerton J) on 22 July 2021, with her Honour being satisfied that the applicant did not pose a risk of flight pending sentence.
Presumably on the basis of his instructions, Mr Heinrich set out the applicant's age, being 72 years, and his domestic and personal situation. The applicant has one daughter, and three step-daughters with his wife. Prior to entering custody, he worked in a business operated by his wife and received a partial aged pension. His assets are limited.
Mr Heinrich has annexed a quantity of documentary material to his affidavit, which is summarised below, to assert, in part, that the applicant's medical treatment has been neglected and mismanaged in custody in the past, and he is now at risk of contracting COVID-19 in the prison system.
Amongst the material produced by Mr Heinrich were a number of character testimonials that were before the sentencing court earlier this year, and an earlier sentencing court, in 2017. The applicant's wife, in letters from 2017 and 2021, gave an account of the difficulties that her family has confronted in the last years because of court proceedings against the applicant, and how the applicant and his family have suffered. She referred to the situation with Ms B, consistent with her affidavit (and supported by other documentary material produced by Mr Heinrich, which I have considered, but do not propose to summarise here, to preserve Ms B's privacy).
Other reports in the documentary material produced by Mr Heinrich go to the high needs of Ms B and the requirement that she be constantly supervised.
Another of the applicant's step-daughters spoke very highly of the applicant in her letter of 30 August 2021, describing him as a loving step-father who had supported and encouraged her in her education and development.
The Hon. John Della Bosca, in his letter to the sentencing court of 26 August 2021, described the applicant as a trustworthy and honest individual, who was hardworking and ethical in the discharge of his ministerial duties when a Member of Parliament. Mr Della Bosca has shared a personal relationship with the applicant as well as a professional one and believes him to be a dedicated and loving family man.
Dr Jonathon Mak, in a document which, although undated, was filed with the Court on 3 September 2021 prior to the sentence proceedings, provides details of the applicant's medical condition and the problems he experienced in receiving adequate treatment for one disorder in 2017, when incarcerated with respect to another matter, despite requesting that treatment in October 2017. At that time, Dr Mak says the applicant should have been surgically treated, but was not, with some level of exacerbation of his condition as a result. The applicant additionally suffers with glaucoma, sinus problems, and difficulties with sleeping, and he requires regular treatment for and monitoring of sunspots. He is in a high-risk category for the COVID-19 virus, given his age and propensity to infection.
Dr Mak's concerns as to the adequacy of the treatment given to the applicant in 2017 when in custody are echoed in a report from Professor T Borody, who additionally wrote to the Justice Health and Forensic Mental Health Network ("Justice Health") in February 2018 to outline the treatment the applicant required.
The balance of the documentary material produced by Mr Heinrich went to the impact of the COVID-19 virus on the prison system, and those within that system. A report from the Kirby Institute at the University of New South Wales dated 16 April 2020 discussed issues connected with the management of the condition in prisons, whilst an extract from the Bugmy Bar Book of 20 September 2021 considered the incidence of COVID-19 infection in the prison system, and the wider impact of the virus on prisoners.
Mr Heinrich's affidavits of 13 December 2021 detail the difficulties experienced by the applicant's family in securing video calls with him, at least until November 2021 when he was provided with an "electronic tablet" through which to have telephone calls with family and legal advisers. There are also practical difficulties in the applicant's lawyers obtaining instructions from him, given the limitations upon telephone calls, video conferences, and provision to the applicant of documentary material relevant to his appeal.
A family member is available to act in the capacity of an acceptable person depositing security, should that be required as a condition of any grant of bail. Mr Heinrich noted, however, the applicant's history of compliance with bail over an extended period.

The Crown Case Relevant to Ian Macdonald

The applicant has a very dated conviction for two minor offences from the Australian Capital Territory, and a conviction for contempt of court from 1970. His custodial history contains nothing of note.
The Crown read an affidavit from the solicitor with the carriage of the matter for the Director's Office, which was directed to the provision of medical services to prisoners and the management of COVID-19 within the Corrections system, and produced relevant Policy Statements for the provision of medical treatment and infection control.
The evidence establishes that, as at 6 December 2021, there were 5 COVID-19 positive prisoners held within correctional centres operated by NSW Corrective Services ("NSWCS"). These prisoners are not housed in the same centres as any of the applicants.
Vaccination against COVID-19 has been offered to all inmates of prisons and 78.8% of all adult prisoners are fully vaccinated, with 87% having received at least the first dose of the vaccination. All persons entering NSWCS custody are subject to - at present - a 14 day quarantine period.
Justice Health is responsible for the provision of medical services to persons in the custody of NSWCS. Justice Health is part of NSW Health and has links to the services provided by local health districts. Although most health needs of prisoners are managed in the custodial setting by "a multi-disciplinary team", care is provided in local hospitals as required. Justice Health "supports the United Nations Standard Minimum Rules for the Treatment of Prisoners, including principles of equivalence to community standards". A policy document and patient information guide, both publicly available on the Justice Health website, set out the nature of medical and related care available to prisoners, whilst another publicly available policy document sets out the approach taken to the management of COVID-19 in the Corrections system.

The Evidence for Edward Obeid

The applicant Edward Obeid read one of two affidavits from his solicitor, Michael Bowe, filed on the application, being that sworn 8 December 2021.
In Mr Bowe's affidavit of 8 December 2021, he deposed that, following the imposition of sentence on [21 October 2021] [1] the applicant was admitted to the Metropolitan Reception and Remand Centre and subsequently transferred to other centres. Mr Bowe asserts, presumably on the basis of his instructions rather than from personal knowledge that, on admission to custody, the applicant was kept with his son Moses in isolation as a COVID-19 quarantine measure and was largely restricted to his cell. His exercise was obtained through walking in his cell. On subsequent transfer to other facilities the pattern was generally the same.
The applicant was moved to Cooma CC on 2 December 2021 where he suffered claustrophobia on his first night in the prison. He was unable to eat and this led to hypoglycaemia. Mr Bowe says: "The cell is particularly small with the window near the ceiling some 2 metres from the floor".
The applicant's bed is "hard" and the opportunity for exercise is limited to walking in a walled compound. The applicant feels that his health has deteriorated since entering custody. He understands, however, that the isolation of his situation is a protective measure, to limit the prospect of contracting COVID-19.
Mr Bowe tells the Court that Damian Obeid is prepared to agree to forfeit security of half a million dollars against the prospect of flight, should the applicant be admitted to bail. Proposed conditions of any grant of bail have been provided, as has the closing address delivered to Fullerton J on the applicant's behalf at his trial, and her Honour's judgment of 25 November 2020, R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949, concerning the admissibility of evidence at trial.
Six proposed grounds of appeal are advanced, each of which is, in the applicant's submission, likely to succeed, in circumstances where the proviso is unavailable.

The Crown Case Relevant to Edward Obeid

The applicant's criminal history records a conviction for an offence of misconduct in public office from 15 December 2016, with respect to which a term of 5 years imprisonment was imposed, with a NPP of 3 years. There is nothing of note in the custodial history relevant to the applicant.
The Crown relies upon the same evidence summarised at [64] - [67] above.

The Evidence for Moses Obeid

The Court was provided with the transcript of Day 71 of the trial, 2 February 2021, as relevant to the applicant's complaint of error in the conclusions of the trial judge as to what the Crown had to prove to establish its case against him. I have considered that material when setting out the arguments to be advanced in support of the appeal.
The applicant relies upon two affidavits affirmed by his solicitor, Rose Evers, on 21 July 2021 and 10 December 2021. Ms Evers' first affidavit was sworn after the verdict against the applicant was returned, in response to the Crown's application that bail be revoked. In it she deposed that the applicant had been subject to investigation and then prosecution over a lengthy period, commencing in May 2011, and had always complied with conditional bail when subject to it, or had bail dispensed with. The applicant does not have a passport and has not attempted to leave Australia since 2012. He has three children. Ms Evers noted that the applicant suffered from a number of specified medical conditions.
In her December affidavit Ms Evers referred to the hearing of the applicant's bail application as being unable to be heard expeditiously, and notes her expectation that the hearing of the appeal is also likely to be delayed. She opines that the applicant may serve half of his NPP before judgment is handed down. Ms Evers states, presumably on instructions, that the applicant has spent a total of 30 days in COVID-19 related isolation during the period of his incarceration to date. When in isolation access to exercise and phone calls was very limited. Access to medication is asserted to have been "sporadic", and the applicant is not permitted to keep an injectable medication with him.
The Court was provided with copies of the decisions of R v Zerafa [2021] NSWDC 547 and R v Brown (Supreme Court (NSW), 8 October 2021, unrep).
Dr Olav Nielssen, forensic psychiatrist, interviewed the applicant via audio-visual link on 25 July 2021 for the purpose of preparing a psychiatric report for use on sentence. The report produced by Dr Nielssen is dated 6 September 2021 and was tendered in support of the applicant M Obeid's release application.
Dr Nielssen took a history from the applicant who reported a good upbringing as the third of nine children in a "close" family. The applicant completed Year 11 at school and achieved "above average grades" with little effort. Upon leaving school, the applicant commenced work in his father's newspaper business, and has worked in family businesses ever since.
The applicant and his wife have three children together. The applicant enjoys strong family support.
Mr Obeid told Dr Nielssen of the devastation the investigation and criminal prosecution, and consequential media scrutiny, have caused to him and his family. His marriage has been adversely affected, leading to a separation, and his children greatly distressed by what has occurred. Considerable financial hardship has also been caused to the applicant as a result of these events.
The applicant reported seeing a psychiatrist and psychologist from around 2014, both of whom diagnosed him with depression. Dr Nielssen reported that the applicant's treating psychiatrist also noted "a PTSD [post traumatic stress disorder] type scenario has been quite prolonged". He was prescribed both anti-depressant and anti-anxiety medications by his treating psychiatrist. The applicant feels that his physical health has also been greatly affected and he has sought and obtained treatment from a range of health professionals and quasi-health practitioners, such as kinesiologists.
Reporting on his recent symptoms, the applicant told Dr Nielssen he had "lots of panic attacks", was withdrawn from social contact, had low energy and motivation levels, his memory had worsened, he had lost about 10kg - weighing as little as 74kg - and had disturbed sleep where he would wake in the early hours of the morning in a state of panic, and was "very self conscious in public".
Dr Nielssen diagnosed the applicant M Obeid with a depressive illness and an anxiety disorder as a result of "ten years of litigation and the public shaming arising from intense media coverage of the proceedings". The doctor opined that the applicant would find a prison environment onerous, and it would likely exacerbate his depressive illness.

The Crown Case Relevant to Moses Obeid

The applicant has no criminal history apart from the instant conviction. His custodial history reveals nothing of note. The Crown relies upon the Justice Health material referred to above, at [64] - [67].

The Proposed Conditions of Bail

Each applicant provided the Court with conditions of bail which it was proposed the Court could impose, with those conditions completely addressing any perceived bail concerns, and relevant to both the s 22 hurdle and the matters the Court must have regard to under Division 2 of Part 3 of the Act when at the second stage referred to in El-Hilli.
The proposals are as follows: Ian MacDonald "● that the applicant enter into an agreement to observe the following specified requirement(s) as to conduct while at liberty on bail: • To be of good behaviour. • To report to: ▫ Katoomba Police Station, once daily on Monday, Wednesday, Sunday. To report by telephone • Not to apply for a passport or any other travel document. • To live at: ▫ [address redacted] • Not to be absent from that residence each day except to attend scheduled medical appointments or conferences with legal representatives or medical emergency. To notify the ODPP within 24 hours of the date of any scheduled appointments or conferences. • Not to be absent from that residence between 10pm and Sam except in the case of a medical emergency. • To present at the front door at the direction of any police officer between 10pm and Sam. • Not to leave the State of New South Wales. • To appear at the Supreme Court or Court of Criminal Appeal at Sydney by AVL or in person, as required. • That one or more other acceptable persons enter into an agreement under which the person(s) agree to forfeit $700,000 if the applicant fails to appear before a court in accordance with his bail acknowledgment." Edward Obeid "1. The Applicant is to attend Court for the purposes of these proceedings on any date as directed by the Court. 2. It is noted that the Applicant has surrendered his passport to the Local Court. 3. The Applicant is not to apply for any new passports or travel documents. 4. The Applicant is not to go within 100 metres of any international or domestic points of departure from Australia. 5. The Applicant is to reside at [address redacted]. 6. Court to note that Edward Obeid is subject to standard conditions of parole and additional conditions of parole until 14 December 2021. 7. The Applicant is not to be absent from that residence each day except for the purpose of exercise in the company of either, Judith Obeid, Fiona Obeid, Damien Obeid, or Edward Obeid Jnr between the hours of 10am and 1pm or to attend scheduled medical appointments or conferences with legal representatives or medical emergency. To notify the ODPP within 24 hours of the date of any scheduled appointments or conferences. 8. Damien Obeid agrees to be a surety and to provide security with the Supreme Court of NSW in the sum of $500,000 over property [details redacted]". Moses Obeid "1. To be of good behaviour. 2. To reside at [address redacted]. 3. Not to be absent from that residence each day except to exercise outdoors unaccompanied between the hours of 10am to 1pm, report to police, attend scheduled medical appointments or conferences with legal representatives or medical emergency. To notify the ODPP within 24 hours of the date of any scheduled appointments or conferences. 4. To present at the front door at the direction of any police officer between 10pm and 5am. 5. To report to Paddington Police Station once daily between the hours of 6am and 6pm. 6. Not to apply for a passport or any other travel documents. 7. Not to leave the State of New South Wales."

Other Material Information

Inquiries with the Registrar of the Court of Criminal Appeal suggest that, if the applicants' appeals are promptly filed and pursued, or at least by March 2022, it is likely that a hearing date in September 2022 will be fixed.

Submissions

Each of the parties provided the Court with comprehensive and helpful written and oral submissions on the questions of the merits of the respective proposed appeals and, although to a lesser extent for the applicant E Obeid, with respect to the individual release applications. Particularly insofar as the submissions dealing with the proposed appeals are concerned, it is not possible to give a comprehensive summary of them in the present context, where s 71 of the Bail Act applies. Having set out in broad summary the complaints articulated with respect to the conduct of the trial, what follows is a summary of the submissions specifically made with respect to the release applications.
The applicant Macdonald relied upon his draft grounds and submissions on appeal to argue that he has reasonable prospects of success in prosecuting his appeal. He contends that there is a risk of delay in the hearing and determination of the appeal, noting the substantial task that the CCA will face in determining a joint appeal of three appellants, with numerous and complex grounds of appeal advanced.
The complexity of the proposed appeal is relied upon to argue that the applicant needs his liberty to provide instructions to those who represent him to ensure that submissions can be advanced effectively, accurately, and concisely. In the current climate where the COVID-19 pandemic has led to restrictions on access to persons in custody, the applicant's continuation in custody will "gravely prejudice" the conduct of the appeal.
The applicant points to the risks to him of infection with COVID-19 if he remains in custody.
There are no bail concerns with respect to him.
He submits that these factors taken in combination are sufficient to amount to special or exceptional circumstances and, there being no bail concerns, he should be granted bail.
The applicant E Obeid advances similar matters for consideration. Particular reliance is placed upon what is contended to be the clear miscarriage of justice that occurred at his trial by the admission of evidence of previous representations, and the consequential likelihood of his conviction being quashed. Counsel for the applicant sought to rely upon what was said to be the Crown's "concession" with respect to one of the applicant's proposed grounds, a concession to be inferred from the asserted failure of the Crown to specifically rebut the ground in submissions [even though the Crown submitted that none of the grounds had merit].
It is submitted that there are no bail concerns relevant to the applicant and he can comply with stringent conditions of bail, as he has done for an extended period whilst this matter was outstanding.
The applicant submits that he has discharged the s 22 hurdle, and bail should be allowed.
The applicant M Obeid also points to the solid prospects of his appeal being successful, and to his very strong personal case in a claim for bail, submitting that it is in the public interest not to incarcerate him in circumstances where his conviction may not have been in accordance with law. He points to his long history of compliance with bail and the absence of any bail concern that could be legitimately raised against him. The dated nature of the offences and the long and complex process that has led to this point are relied upon as "truly exceptional" such that the interests of justice strongly favour release to bail, particularly in circumstances where the applicant will serve a significant portion of the NPP imposed upon him if not admitted to bail, unjustly reducing the benefit of a successful appeal. Further, the health risks to the applicant of contracting the COVID-19 virus are said to militate strongly in favour of a grant of bail, as a matter of justice and fairness.
The Crown disputes the applicants' contentions that the respective appeals could be said to enjoy reasonable prospects of success. Issue is also taken with the features raised by the applicants concerning the availability of medical treatment and the risk of infection with COVID-19 in custody, with reliance placed upon the evidence adduced by the Crown as to those matters. Referring to the principle stated in Carnaby v R [2021] NSWCCA 203 at [21], the Crown argues that past compliance with bail is not a feature that can go to meet s 22 of the Bail Act. It is submitted that neither the prospects of the pending appeals, nor any of the more personal matters raised by the applicants can satisfy the criteria of special or exceptional circumstances. The Crown highlights the serious interference with the due administration of criminal justice that a grant of bail to a convicted and sentenced offender represents, and the strong public interest in avoiding the appearance of contingency with respect to the orders of trial courts.
The Crown argues that there is no legitimate basis upon which to grant bail to any of the applicants.

Determination

It is important to address at the outset what the hearing of these applications and these reasons cannot do: they cannot serve as a trial run for the appeal proceedings that are on foot, or as predictor of the likely outcomes of those appeals.
The parties gave particular emphasis to the question of the merits of the proposed appeals, filing draft grounds and submissions and lists of authorities relevant to the determination of the appeals. There can be, and is, no criticism made of that approach, as the strength of a forthcoming appeal can be a feature that will bear greatly on whether special or exceptional circumstances have been established: United Mexican States at [41].
This Court, constituted by a single judge in circumstances where the tribunal of fact that heard the trial was also a single judge of the Court, cannot give the same level of informed consideration to the proposed appeals as the parties gave in submissions. None of the evidence adduced at trial was before this Court, and the only trial transcript available recorded a day of legal discussion rather than witness testimony. Including that transcript, only a very limited amount of information concerning the legal argument that took place before the trial judge was available to me. Thus, even were it appropriate to do so, it would be impossible to make any truly informed and detailed assessment of the likelihood of success of the proposed appeals.
Such an assessment is not, however, appropriate. As was said in Obeid v R (No 2) [2016] NSWCCA 321, at [17]: "It is inappropriate for this Court to say much in detail about an applicant's prospects of success on appeal when determining a bail release application pending the hearing of such appeal. That is for two reasons. First, the argument before this Court on such an application can never be as fully developed as it might be. Secondly and consequently, this Court is confined to reaching only a broad overall view of an applicant's apparent prospects."
On that limited basis I accept that at least some of the grounds advanced by each of the applicants may be regarded as having real substance, with at least some prospects of success. The Court cannot conclude, and was not asked to conclude, that the appeals will be, to adopt a phrase used in submissions, "a walk up start". Were that the case, special or exceptional circumstances could be established on that basis alone, as was the case in Sakhra v R [2021] NSWCCA 187, where the trial judge who presided at trial was in a position to conclude, correctly, that there had been a miscarriage of justice and an appeal against conviction to the CCA enjoyed very good prospects indeed.
It must be accepted that, if the applicants are refused bail pending appeal, and are later successful in those appeals, there will have been an injustice worked against them by their incarceration. However, in the absence of appeals conceded to be "walk up starts", or a miscarriage of justice that is clear even on a broad overview of the matter, that cannot be a determinative consideration. It is a feature to be considered in the mix of circumstances advanced in support of bail.
That the appeals have or may have substance to them is not of itself sufficient to establish "special or exceptional circumstances" such as to militate in favour of a grant of bail.
The meaning of those words, or that phrase, is not given in the Bail Act, and they must be taken to have their ordinary meaning. The Court was referred to a decision of Rothman J in which his Honour considered the meaning of "special", and "exceptional", referring to dictionary definitions of each word: R v Alo-Bridget Namoa [2020] NSWSC 1872 at [24] - [25].
The meaning of the words in s 22 must be understood and applied in the context in which they appear, that being consideration of a release order for a convicted and sentenced prisoner.
The Court was also referred to Marotta & Ors v The Queen (1999) 73 ALJR 265; [1999] HCA 4 where a single judge of the High Court, Callinan J, granted bail to three appellants to whom a grant of special leave had been made, following proceedings before the criminal courts in Western Australia. His Honour gave as his reasons for so doing: "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."
Marotta pre-dates the present statutory framework that governs the determination of bail applications in this State but it continues to be useful, at least insofar as it may constitute "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": R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445, at 35, [23].
It must be noted however that, like all single judge bail decisions that determine an individual application for bail, Marotta turned on its own facts and circumstances including, in the case of the appellant Marotta, that he was only months short of having served the NPP of his sentence, and was eligible immediately to leave prison on work release. That the application of Marotta beyond its particular circumstances is limited to an extent must be the case when at least one of the thirteen features nominated by Callinan J as relevant to that decision, the ninth, appears to be inconsistent to at least some extent with what was said at a later time by Gleeson CJ, McHugh and Gummow JJ in United Mexican States at 15 - 16 [39], concerning the "public interest in having convicted persons serve their sentences as soon as is practicable".
The decision of Callinan J in Marotta must be read in light of the decision of the High Court in United Mexican States, and proper weight given to the principles there stated.
Here the applicants rely upon several considerations which, it is submitted, amount to special or exceptional circumstances when taken together.
I have considered the question of the merits of the proposed appeals and accepted that there are real issues to be determined.
The second feature which is frequently regarded as significant in determining an application for bail pending appeal is the extent to which an applicant may serve his or her sentence if refused bail.
Mr Macdonald's sentence will expire on 20 April 2031; his earliest release date, if parole is then granted, is 20 January 2027. Mr E Obeid's sentence will expire on 20 October 2028; with an earliest release date of 20 August 2025. The sentence imposed upon Mr M Obeid will expire on 20 October 2026; with the NPP expiring on 20 October 2024.
Although all of the parties contended that, because of the size and complexity of the appeals, there will inevitably be delay in their determination, the Court's inquiries of the Registrar of the CCA suggest that the delay will not be unusual, or inordinate, or such as to unjustly erode the significance of a successful appeal by causing the applicants to have served most of their sentences prior to any orders being made in the CCA. The parties were advised at the hearing of the applications that, on the basis that each applicant prosecutes his appeal promptly, and each appeal is filed expeditiously the Court will likely be able to hear the matters in September 2022, that is, 11 months after the imposition of sentence.
It can be readily accepted that the issues for the CCA to determine are both substantial and complex, and there is a large amount of material to consider in that process. That does not mean, as was submitted, that any judgment would be delayed for many months. The submission does not take into account the ability and willingness of the CCA to deal expeditiously with appeals where that is essential to a just outcome. The CCA is: "[…]always astute to consider the expiration dates of any short term sentence, and the need in such cases for the expeditious determination of an appeal. Past matters where the Court has made orders immediately, or very soon after the hearing of an appeal, for the very reason that speed is essential to prevent injustice, can be readily identified. There is no reason to conclude that judgment in the applicant's case will not be given in a timely manner appropriate to the circumstances" (Gould v R (Cth), at [39]).
On the basis that it is reasonable to expect the appeals to be considered and determined by the end of 2022, or perhaps in the early weeks of 2023, I do not accept that such a significant portion of the sentences imposed upon the applicants will have been served as to militate in favour of a grant of bail, much less to require it. Mr Macdonald will by that time have the vast majority of his total sentence outstanding, with about three-quarters of the NPP to serve. Mr E Obeid will also have the majority of his overall sentence left to serve; with about two-thirds of the NPP remaining. Even Mr M Obeid, who has the best case on this point, will still have about three-quarters of the head sentence left, and around two-thirds of the NPP remaining.
It cannot be said that a substantial portion of the sentence imposed on any of the applicants will have expired before his appeal is determined.
Each of the applicants has raised the issue of his health and well-being and the capacity of NSWCS and Justice Health to ensure the appropriate medical treatment, and safety of each from infection with the COVID-19 virus. The existence of the virus is also relied upon to point to the difficulties in the applicants maintaining contact with family and others, and providing instructions to legal representatives.
I accept that, during his incarceration in 2017, the applicant Macdonald appears not to have received optimal or even adequate treatment for a medical condition. That is a matter of concern.
I accept that each of the applicants have health issues and are in need of ongoing medical and other treatment. The weight of the evidence, however, is that Justice Health has the capacity to adequately treat prisoners within the Corrections system, to a standard comparable to that available to the average person in the community. That this level of treatment may not amount to the best medical treatment available in the community is not a feature I regard as special or exceptional.
Neither are those matters raised as to the risk to the applicants of contracting COVID-19 special or exceptional. The report from the Kirby Institute relied upon by the applicant Macdonald is largely unhelpful, dating as it does from April 2020. The COVID-19 situation is fluid and much has changed since that time, including the availability of vaccines to both the general and prison population. Whilst the applicants raise issues of isolation and restricted access to others in support of a claim to meet special or exceptional circumstances, to some extent it is those very measures that address the incidence of infection risk. The evidence relied upon by the Crown establishes that the rate of vaccination in the prison system is high, and the rate of infection low, with just five prisoners testing positive for the virus at the present time.
On one view of it, those in custody are less likely to contract COVID-19 than persons in the general population who must move about the community for essential purposes. I do not regard a decision of a single judge of this Court, that of R v Brown that is relied upon by the applicant M Obeid, as at all persuasive in establishing the contrary position, particularly bearing in mind the status of single judge decisions in individual bail cases: see Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247, at [30] - [33]. Much less do I regard a sentencing decision of a judge of the District Court, R v Zerafa, relied upon by the applicant M Obeid, as helpful, for the same reasons.
What is asserted by other offenders on other occasions concerning access to medical treatment and infection control in custody cannot inform this decision. The evidence is that medical treatment will be available to the applicants in custody, and measures are in place within the Corrections system to control the risk of viral infection. The comments of the CCA in Gould v R (Cth) on this point, at [41] - [43], are apposite: "Whilst it may be accepted that there could be a distinction to be drawn between the best health care that significant financial resources can secure, and that available to the average individual in the community or in custody, that does not mean that the medical treatment available to persons in custody is inadequate. In the absence of clear evidence of it, we do not conclude that Justice Health is unable to or will not discharge its statutory functions to administer appropriate medical and dental treatment to the applicant, including meeting its duty to protect prisoners from infection with COVID-19. As was observed by Johnson J in R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152, at [125] - [126], with the concurrence of Macfarlan JA and Garling J: Justice Health is a statutory health corporation, with functions including the provision of health services to offenders and persons in custody: s.236A Crimes (Administration of Sentences) Act. The Chief Executive Officer of Justice Health has a statutory right to have free and unfettered access at all times to correctional centres, medical records and offenders to ensure that statutory provisions relating to Justice Health are being complied with: s.236B Crimes (Administration of Sentences) Act. Accordingly, the Court should approach an appeal such as this upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Respondent whilst in custody. The applicant's health and dental issues are of a kind that afflict many older citizens in particular. There is no reason to conclude that those conditions cannot be managed in a custodial setting."
I accept that isolation and limited access to personal and legal visits as a consequence of measures to minimise the risk of COVID-19 infection weigh heavily upon the applicants and will have an impact upon their individual access to family and lawyers, although I take as a suggestion more dramatic than real the claim in submissions filed for the applicant Macdonald that his continued incarceration will "gravely prejudice" the conduct of the appeals, noting that these are not trial proceedings, but will largely turn upon questions of law in the context of evidence already given.
The effect of COVID-19 restrictions upon the applicants must, in any event, be assessed against the impact of the pandemic more broadly. Many in the community, as well as persons in custody, have been affected, even badly affected, by the pandemic and the restrictions that have been imposed on all by public health measures intended to mitigate against the spread of the disease. That is a burden that is not confined to the applicants alone but is shared with other prisoners and everyone in the community. See generally R v Fletcher [2020] NSWSC 1478 at [65]. This is not a persuasive feature.
That the applicants have family responsibilities, as the applicant Macdonald does to his wife and step-daughter, and the applicant M Obeid does to his children; or that the applicants have a strong desire to be with family members, is also unpersuasive. The same could be said of many if not most persons in the prison system, including prisoners with appeals outstanding.
For the reasons given at [21] of Carnaby, and notwithstanding the third point referred to in the extracted portion of Marotta above, the previous compliance of the applicants with bail conditions over an extended period is of little weight, although I have considered it as one in a number of features relied upon in combination.
The final consideration is whether all the features relied upon by the applicants individually when taken together can be regarded as establishing special or exceptional circumstances. My conclusion is that they cannot. None of the matters relied upon are particularly unusual, or uncommon, or striking, or compelling. Even taking them together they cannot be so regarded.
Ultimately, my decision in that regard has been guided by the principles expressed in United Mexican States. Whilst each applicant has an arguable case on appeal, it cannot be known if the appeals will be successful or not. The applicants have each been found guilty and sentenced by a court and they do not enjoy the presumption of innocence, or have a right to liberty. To stay an order of imprisonment by granting bail would be a serious interference in the administration of criminal justice, that cannot be justified in the absence of special or exceptional circumstances.
It follows that bail must be refused to each applicant.

orders

The Court makes these orders: 1. The release application filed by Ian Macdonald is refused. 2. The release application filed by Edward Obeid is refused. 3. The release application filed by Moses Obeid is refused.

Endnote

The date was given in error by Mr Bowe in his affidavit as 27 December 2021.

Amendments 17 December 2021 - Typographical amendment to Legal Representation of E. Obeid. 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: 17 December 2021

Criminal Procedure Act 1986(NSW)s 133(2), that, s 133(2).

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