Obeid v R

Statutory provisions

1. All "bail authorities" (which include this Court) are required to assess any bail concerns before making a bail decision: s 17(1) of the Bail Act. A "bail concern" is defined in s 17(2) as a concern that if the person is released on bail they will (a) fail to appear; (b) commit a serious offence; (c) endanger the safety of victims, individuals or the community; or (d) interfere with witnesses or evidence.
2. Section 18 of the Bail Act provides an exhaustive list of matters that must be considered in the assessment of bail concerns. Particularly relevant to the present matter, they include: "(1)(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success"
3. Section 19 of the Bail Act provides that a bail authority must refuse bail if it is concluded that there is an unacceptable risk in respect of any of the matters that are a bail concern. Otherwise, s 20 provides that the bail authority must grant bail, release the person without bail, or dispense with bail. Importantly, however, this provision is "subject to Divisions 1A and 2A", the latter of which includes s 22. Section 22 provides, relevantly: "(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, … (3) Subject to subsection (1), Division 2 (Unacceptable risk test - all offences) applies to a bail decision made by a court under this section."
4. The significance and operation of s 22 was considered by this Court in El-Hilli and Melville v R [2015] NSWCCA 146. Hamill J, with the concurrence of Simpson J (as her Honour then was) and Davies J, stated the following propositions: "[13] … First, where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special and [sic - 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 and [sic] 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)."
5. Hamill J also reviewed a number of earlier decisions concerned with the meaning of the expression "special or exceptional circumstances" (many in a somewhat different statutory context). He concluded: "[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 [of the Bail Act 1978 (NSW)] before it). 'Special or exceptional circumstances' may exist in the combination of factors or in 'the coincidence of a number of features': cf the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20] when dealing with the requirement to establish 'exceptional circumstances" in a murder case under the 1978 Act. It is not possible to determine or predict in advance what those features may be. Two features that frequently arise are (i) the merit of the appeal and (ii) the possibility that the applicant will have served their sentence or non-parole period, or a substantial part of it, before the appeal is determined."

The issues

1. It was the applicant's case that there were "at least 13 special or exceptional circumstances for the purposes of s 22". They were: 1. The applicant's grounds of his proposed appeal were at least arguable and reasonable and, in fact, were "very likely to succeed". 2. The issue of the "duty" the applicant was said to have breached (Ground 1 of the proposed appeal) concerned an area of the law that was subject to uncertainty. 3. The applicant has significant health problems which were not capable of being managed in prison as effectively as outside prison. 4. The applicant is elderly and has a life expectancy of four to seven years. 5. The applicant intends to appeal against his sentence as well as his conviction. 6. It is unlikely that any appeal will be heard for at least some months and it is likely that judgment will be reserved for some time. A significant portion of the applicant's sentence will likely be served before the appeal is finalised. 7. The applicant was on bail at all times until he was sentenced. 8. The applicant may be acquitted on appeal; if refused bail, this would be a "hollow victory". 9. The public interest will be served if the applicant goes to gaol upon his appeal being rejected; not if he is incarcerated but it is found that he was wrongly convicted. 10. There are a number of grounds of appeal asserting arguable errors of law which go to the root of the conviction; the appeal is not confined to a contention that the jury's verdict is unreasonable or unsupportable. 11. There is no prospect of the applicant re-offending. 12. There is no risk of the applicant absconding. 13. The applicant has another criminal trial pending. His preparation for trial would be assisted by him being at liberty.
2. The Crown opposed the release application. It contended that there were no special or exceptional circumstances; the proposed grounds of appeal will not most likely succeed and the other matters relied upon by the applicant, even in combination, are insufficient.
3. The Court had the benefit of very detailed written submissions by both parties which its members had the opportunity to read prior to the hearing. Senior counsel for the applicant devoted particular attention in his oral address to Ground 1 of the proposed appeal which concerned the trial judge's formulation of the "duty" that was the subject of the applicant's asserted breach. The applicant's position is, first, that there is no relevant duty, and secondly, if there is, the formulation of it in the trial judge's directions to the jury was so broad as to lead to "unreal, unworldly and impractical results".
4. The Crown made the point that the majority of the proposed grounds of appeal concerned matters that were not raised at trial. Rule 4 of the Criminal Appeal Rules provides a hurdle to the applicant in such circumstances to establish that there has been a miscarriage of justice. Proposed Ground 9 (unreasonable verdict) was dependent upon some of the substantive grounds being made out. Grounds 10 to 13 were the subject of this Court's determination in 2015 in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309. Special leave to appeal to the High Court was refused by Nettle and Gordon JJ on the basis that there was no reason to doubt the correctness of the decision of this Court: Obeid v R [2016] HCASL 86.

Determination

1. Although the applicant relied upon a multitude of matters it was clearly the case that if he did not make good his contention that he has a high likelihood of success on appeal, the balance of matters would fail to establish special or exceptional circumstances for the purpose of s 22 of the Bail Act. This is particularly so given the Court indicated its preparedness to list and hear the appeal on the earliest available date, 15 March 2017 (provided a Notice of Appeal and associated documents were filed relatively promptly).
2. 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. That said, the written submissions by both parties as we have observed were helpfully detailed and the Court had the benefit of senior counsel further exposing in oral submissions the more significant points.
3. In the end, however, we were of the view that special or exceptional circumstances were not established that would justify a grant of bail pending the hearing of an appeal. A significant matter in our assessment was that the most of the grounds of appeal concern points that should have been raised with the trial judge and no direct explanation was given as to why they were not. The applicant faces the hurdle of establishing that there was a miscarriage of justice in order to rely upon such points despite r 4 of the Criminal Appeal Rules.
4. It may well be that leave to raise one or more of such grounds will be given in due course. However, on the limited materials that were before the Court, it did not appear that the applicant's case was sufficiently strong to meet the threshold requirement of s 22 of the Bail Act, even when considered in conjunction with the various personal and procedural factors relied upon.
5. It was for these reasons that at the conclusion of the hearing the Court refused the application. ADDENDUM: Refer to Obeid v R (No 1) [2016] NSWCCA 320.

Amendments 08 February 2017 - Representation amended 08 February 2017 - Addendum added 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: 08 February 2017