Obeid (Moses) v Director of Public Prosecutions

Unacceptable risk test

1. Pursuant to s 22(3), if satisfied as to special or exceptional circumstances, the court must determine under s 19(1) of the Bail Act whether, if released, there is an "unacceptable risk" that the applicant will fail to appear, in this case, at the future hearing of his appeal.
2. Submissions that the applicant posed no risk of failure to appear were properly directed to this test, not to the test of special or exceptional circumstances.

Constraint on repeat applications

1. One further legal constraint needs to be identified. Pursuant to s 74 of the Bail Act, subject to a number of exceptions, a court which refuses bail after hearing a release application is to refuse to hear another release application for the same offence. Two grounds for a further application are that (i) relevant information was not presented on the first occasion, and (ii) circumstances have changed since the previous application was made: s 74(3)(b) and (c).
2. This is the second release application made by the applicant since being convicted and sentenced. In December 2021, Wilson J heard release applications made by the applicant, Mr Macdonald and Mr Edward Obeid. They were refused. However, at that stage, although the applicant had filed a notice of intention to appeal and provided a draft of proposed grounds, neither a notice of appeal, nor written submissions in support of the appeal had been filed.
3. Section 74(2) is not engaged as the earlier release application was made to a judge of the Supreme Court sitting alone, not to the Court of Criminal Appeal. That course was permissible at that time because the applicant had not made a first appearance before this Court: Bail Act, s 62(c).

Circumstances relied upon

1. Counsel for the applicant relied upon three sets of circumstances as satisfying the statutory test. One was a denial that the applicant posed a flight risk. He relied upon a long history of the applicant complying with bail conditions. That may be accepted: however, as noted above, it is relevant to the unacceptable risk test, not to establishing special or exceptional circumstances.
2. Secondly, he relied upon the fact that the applicant will have served some 18 months (or half) of his non-parole period by the time his appeal is heard and, in all probability, a greater proportion by the time it is decided. That is a relevant consideration which must weigh in the balance in favour of a release order. However, the weight to be given to it is limited. It arises in every case in which there is a conviction appeal, where there is a relatively short non-parole period and where, if successful, the appeal is likely to result in an acquittal or, if a retrial is ordered, the appellant is likely to be granted bail pending the retrial. Further, some six of the 18 months elapsed before a notice of appeal was filed. Some further delay after the filing of a notice of appeal is inevitable.
3. Thus, taken in isolation, the continued service of a sentence pending the determination of an appeal against conviction is neither special nor exceptional. The higher the proportion of the sentence served before the appeal is likely to be determined is a significant consideration, but even that will carry little weight in isolation.
4. Thirdly, the primary emphasis in the applicant's submissions was upon the "strength" of the grounds of appeal. It is therefore necessary to turn to those matters.

Assessing merit of appeal

1. It is uniformly remarked upon that, where special or exceptional circumstances are said to turn upon the likelihood of success on appeal, the bail court must undertake an evaluative assessment based upon limited information and made with limited time for consideration. Where the verdict is given by a jury, unless there has been a manifest flaw in the trial process, sufficient to constitute a special or exceptional circumstance, the exercise is likely to fail. In this case the submission did not need to identify a flaw in the judge's ruling on the admissibility of evidence, or the terms of a direction given to the jury. That was because the judge, being the trier of fact, produced a lengthy and detailed judgment in accordance with s 133 of the Criminal Procedure Act 1986 (NSW).
2. That circumstance provided an opportunity for the applicant which might not have been available had he been convicted by the inscrutable verdict of a jury. However, it also provided a real obstacle to demonstrating manifest error. The judgment [3] covered some 673 pages and 2,047 paragraphs. As will be explained, the applicant's case was that a key element to be established beyond reasonable doubt by the prosecutor had not been addressed in the judgment. A judgment involving three accused, complex legal issues and a large volume of evidence will proceed in stages. What may appear to be a cursory statement of final conclusions, with limited reasoning, may simply be a summary of findings which have been addressed earlier in some detail. To be sure that something is missing requires a lengthy and detailed consideration of the judgment.
3. Bearing those considerations in mind, it is convenient to turn to these specific issues raised by counsel for the applicant.

Strength of specific grounds

1. Counsel for the applicant submitted that the grounds were "strong" or "sufficiently arguable as to give rise to a relevant concern". [4] That is, they were sufficiently strong to allow a finding that the case was special or exceptional for the purposes of the bail application.
2. Counsel contended that the strength of the appeal could be assessed by considering ground 2 in the notice of appeal. Ground 2 stated that the verdict was "unreasonable or unable to be supported by the evidence". Despite the potential width of the ground (which in due course will require this Court to assess the whole of the case presented at trial), counsel focused upon a particular issue, which was said to be central to the various grounds of appeal. The issue was identified by reference to the manner in which the prosecution ran the trial, namely that the conspiracy involved an agreement at a high level of generality and was an agreement that had been reached by no later than the morning of 9 May 2008. [5] Counsel continued: [6] "By way of general background, the Crown sought to prove this conspiracy largely by way of nine identified acts of what they called misconduct …. The first act occurred on the morning of 9 May and the balance occurred largely throughout the next few months and the final act [was] said to have occurred in January 2009."
3. Counsel sought to make good his claim as to the strength of the appeal by taking the Court to passages in the written submissions on the appeal, which themselves extended over 154 pages. Those submissions contained closely considered arguments referring in detail to the evidence, to an extent not readily capable of being summarised or assessed on a bail application. Further, the Director had not filed (and was not due to file) written submissions in response. In any event, it would not be appropriate for the Court to make a preliminary assessment of the appeal by considering the detailed submissions on each side of the record. That is consistent with the approach adopted by this Court in an earlier matter involving different offences: Obeid v R (No 2). [7]
4. In his written submissions on bail, the applicant's counsel emphasised that the nature of the prosecution took the Court into "uncharted territory". [8] That conclusion was founded upon three propositions. First, the fact that the prosecutor identified the conspiracy as based on an agreement which had occurred by a particular date, but was proved by subsequent events, was said to be unusual and in that sense special. Secondly, it was submitted that the charge itself, being a common law conspiracy to commit the offence of misconduct in public office, was unusual and therefore special. Thirdly, reliance was placed upon the fact that there was no legal authority giving guidance to the trial judge as to how to deal with either of these unusual circumstances. The inference, at least implicitly, was that the judge was more likely to have erred than if the prosecution had been for a more well-known form of conspiracy, supported by conventional evidence of an agreement.
5. Whilst accepting that the applicant no longer enjoyed any presumption of innocence, these submissions had a strong flavour of rendering the conviction contingent upon confirmation by a higher court.
6. These submissions might have had greater force if the thrust of the grounds of appeal had been directed to whether the conspiracy charged was available at law and whether there was a clear misdirection as to an essential element of the offence, as alleged in ground 1. The remaining grounds, which were directed to the sufficiency of the evidence and the factual findings made by the trial judge, were almost impossible to assess as being strong or weak, in the circumstances of a lengthy trial and a lengthy and detailed written judgment. Particularly was that so in circumstances where it was submitted that there was an absence of evidence to support a particular finding.
7. In fact, the Court was taken to various aspects of the submissions with respect to ground 1. (Ground 1 was dealt with at some length in the applicant's written submissions on appeal, at pars 124-303, covering some 50 pages.) Much of the reasoning was fact-intensive; other aspects of the reasoning involved a comparison between the nature of the conduct alleged in the present case and the nature of the conduct alleged in other indictments and other cases of conspiracy involving persons holding public office. In combination, a central complaint was that there could be no criminal conspiracy to commit the offence of "misconduct in public office" without an understanding as to the precise elements of misconduct which were going to be undertaken. That contention involved matters of degree and, indeed, reference to the evidence.
8. Counsel explained that he sought to focus on the unreasonable verdict ground on the basis that the other grounds contained elements of nuance. So much may be accepted, but until the complex arguments as to the elements of the offence are resolved, it would not be possible to say with confidence that the verdict was or was not supportable on the evidence.

Conclusion

1. Three matters raised on this release application were not in doubt. One was that the applicant was likely to have served a significant part of his non-parole period prior to determination of his appeal against conviction. Secondly, the prosecution involved an offence with unusual elements and a complex evidentiary basis. Thirdly, the applicant was not a serious flight risk.
2. The first two matters were relevant to determining whether special or exceptional circumstances had been made out, justifying release on bail pending determination of the appeal. The first is accepted, but is not sufficient by itself. Furthermore, the delay until the hearing of the appeal is only four months. The proportion of the non-parole period which will be served before the appeal is to be heard might have been reduced if the applicant had filed a notice of appeal more expeditiously. It is no criticism of the applicant that he did not do so: however, the delay and the need for lengthy written submissions in support of the grounds militate against a finding that there is some manifest error and a strong likelihood that the appeal will be upheld. Further, if the Court hearing the appeal forms a different view, it will be in a position to act upon that opinion if satisfied that the interests of justice warrant a release order with immediate effect. At this stage, the Court cannot be satisfied that the grounds of appeal carry a real likelihood that the conviction will be overturned.
3. Not being satisfied that special or exceptional circumstances exist, the release application must be refused.

Endnotes

1. (2001) 209 CLR 165; [2001] HCA 60; (original footnotes omitted).
2. [1986] 1 Qd R 303 at 310.
3. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858.
4. CCA Tcpt, 29/11/22, p 5(8).
5. CCA Tcpt, p 6(3).
6. CCA Tcpt, p 6(17).
7. [2016] NSWCCA 321 at [17] (Bathurst CJ, Hoeben CJ at CL, R A Hulme J).
8. Applicant's written submissions, 7 October 2022, par 28. 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: 09 December 2022