R v Habambo

The Applicant's Submissions

1. Counsel for the applicant relied on a detailed written outline of submissions in which he set out the background to the application as summarised by me above. Counsel referred to the decision of R v Smith 2023 NSWSC 36 where Yehia J dealt with the question of appeal bail and the operation of s 22 of the Bail Act. That section requires an applicant for appeal bail to establish special or exceptional circumstances and the applicant relied on what her Honour said at [27] of her judgment, that the phrase "special or exceptional circumstances" means that what must be shown is that there is some situation which is out of the ordinary or unusual in some respect which the applicant can point to as being special or exceptional. At [30] her Honour went on to state: "The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case by case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence and features which emphasise that the applicant is otherwise a person who will answer bail"
2. The applicant here relies upon a combination of circumstances, namely, the advice of Kings Counsel that he has strong grounds of appeal which demonstrate that the appeal is arguable and has reasonable prospects of success, together with the financial hardship referred to in the affidavit of his solicitor and the subjective matters which are relevant in an assessment of whether there is an unacceptable risk in granting bail contained in s 18 of the Bail Act which I will come to later.
3. In his oral submissions, counsel for the applicant submitted that the three conditions for the bail application here were met, namely, that he had been convicted in this Court, that there was an appeal on foot for which there had not been a return date and that he had reasonable prospects of success. Counsel rehearsed his submissions concerning those reasonable prospects by reference to Holt KCs advice and outline of submissions to be filed in the Court of Criminal Appeal and also relevant matters pursuant to s 18. It was submitted that the trial seriously miscarried and that a Notice of Appeal was to be filed next week. Counsel submitted that the time served is an irrelevant factor in this conviction appeal. It was not in issue that this Court had jurisdiction to determine the matter.

The Crown's Submissions

1. The Crown also relied on a written outline of submissions. It was conceded that there was no issue as to this Court having jurisdiction and that the Notice of Intention to Appeal had been filed on 6 October 2022, within time. The Crown position was that there was an insufficient basis for the Court to make a determination here where no Notice of Appeal had been filed and therefore the Crown did not have sufficient detail of the grounds of appeal to be prosecuted by the applicant. That meant that the Crown was denied procedural fairness on this application because the grounds of appeal were not laid out.
2. On the question of "special and exceptional circumstances", the Crown also relied on R v Smith and referred to [26] of her Honour's judgment which made it clear that s 22 of the Bail Act poses a significant hurdle to any grant of bail and that the test is at least as onerous as the requirement to show cause. The Crown also referred to El-Hili and Melville v R [2015] NSWCCA 146 where the Court said:- "Where the grounds of appeal are put forward as the only or principle factor to demonstrate special or exceptional circumstances, an applicant has to show much more than that the grounds seem arguable. It may be necessary for the respondent to establish that the appeal is most likely to succeed."
3. This was contrasted with the situation where the merit of the appeal was put forward as part of a combination of factors to demonstrate special or exceptional circumstances. The Crown submitted here, first, that there were no grounds of appeal on foot and, secondly, that there were no other factors made out. The only other potential relevant factor was of the offender's financial position which needed to be very carefully scrutinised.
4. The Crown submitted that there was no evidence as to the family's financial position in respect of property except his untested instruction that his mother had taken on a second job. The Crown submitted that on these bases, special and exceptional circumstances do not arise here. Further, the Court was faced with an almost insurmountable task in undertaking the exercise of assessing the merit of an appeal not yet on foot given that the trial went for six weeks and the transcript is in excess of 1600 pages.
5. The Crown submitted that in the absence of a Notice of Appeal and grounds of appeal, the Court can only make an assessment of the evidence based on the draft submissions of counsel for the appellant. These were naturally argumentative and put a particular slant on the evidence. In no way were they an objective outline or an assessment of the evidence in the case.
6. The Crown further noted that the first two grounds which pleaded the inadmissibility of evidence being screenshots of messages, the Crown submitted were not objected to by very experienced defence trial counsel. These also only related to the two counts on the Indictment, which posed a challenge on appeal. The third and fourth contemplated grounds related to the timing of the tender of text messages authored by the complainant which were not admitted during cross-examination of the complainant but were subsequently tendered later in the proceedings and were before the jury in its ultimate determination.
7. The Crown noted that the jury returned mixed verdicts which showed that there was a nuanced consideration given to the outcome rather than a blanket set of convictions which might be said by the appellant to have a taint attached to them. The Crown submitted that it almost certainly does not follow, given that the potential appeal related to those two issues, that the appeal is either most likely to succeed or is reasonably likely to succeed.
8. The Crown urged extreme caution on the part of this Court where the submissions relied on made reference to evidence which is not before the Court and about which the Court is not placed to make any objective assessment.
9. In her oral submissions the Crown rehearsed her submission regarding the absence of the 1600 pages of transcript and evidence which meant that there was, together with the trial judge's directions which gave no context to the current application. In Holt KC's advice at [4], he had highlighted only one message only. This gave rise to a real difficulty as the Crown could not respond to an appeal which it submitted does not yet exist. The Crown therefore could not engage reasonably with the argument put by the applicant, nor could the Court.
10. The Crown rehearsed her submissions regarding the two categories of appeal grounds referred to in [22] and [23] of her written outline and again rehearsed her submission that the verdicts delivered by the jury were nuanced verdicts being a spread of both guilty and not guilty verdicts for various counts on the Indictment. The Crown submitted that any assessment of the appellant's prospects could only be regarded as speculative and notwithstanding that Kings Counsel for the applicant had identified potential error, it was impossible for the Court to forecast any prospects on appeal. The Crown submission was that there was nothing special or exceptional concerning the applicant's financial position. Rather, it was an inevitable consequence of his conviction and sentence that he suffered financial hardship which the Crown submitted "goes with the territory". The evidence demonstrated very large expenditure on legal costs but no impecuniosity.
11. The Crown thus submitted in conclusion there was nothing out of the ordinary here and therefore the hurdle in s 22 of the Bail Act had not been cleared. In his submissions in reply, counsel for the applicant referred to the right to cross-examination on messages sent by the complainant going to credit and motivation were fundamental to the accused right to put his case to cross-examination and therefore there were strong prospects on appeal.

Determination

1. Section 22 of the Bail Act 2013 provides as follows: "22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision - (a) an offence for which an appeal is pending in the Court of Criminal Appeal against - (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment, (b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a). (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified. (3) Subject to subsection (1), Division 2 (Unacceptable risk test - all offences) applies to a bail decision made by a court under this section."
2. Section 59 of the Bail Act provides as follows: "59 Meaning of pending proceedings In this Part, a reference to proceedings for an offence pending in a court is a reference to substantive proceedings pending in the court."
3. In the definition section in s 5 of the Bail Act 2013 s 5(3) provides as follows: "(3) Proceedings for an offence are substantive unless the proceedings are - (a) proceedings relating to bail, or (b) proceedings on an appeal against any interlocutory judgment or order given in proceedings, or (c) proceedings declared to be non-substantive by the regulations."
4. Also relevant to this determination is s 10 of the Criminal Appeal Act 1912. "10 Method and time for making appeal (1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence - (a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence. (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice. (c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court, which may include - (i) provision with respect to any statement of grounds of appeal, transcripts, exhibits or other documents or things to accompany the appeal or application, and (ii) provision with respect to the timely institution and prosecution of the appeal or application, and (iii) provision with respect to the period during which the notice under paragraph (a) has effect. (2) For the purposes of any other Act or statutory instrument (whether enacted or made before or after the commencement of this subsection) - (a) the period provided for making or lodging an appeal or notice of appeal to the court against a conviction or sentence is taken to be the period for giving the court notice of intention to appeal or notice of intention to apply for leave to appeal, or (b) an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court)."
5. In accordance with s 10 of the Criminal Appeal Act 1912 this matter may be regarded pursuant to subsection 10(3)(b) as pending in the Court of Criminal Appeal given the Notice of Intention to Appeal was duly filed and served within time. I further note that the Crown does not contest that this Court has jurisdiction to deal with the matter. However given the fact that this is a matter within s 10 I reject the Crown's submission that the Court has no determination to make here because there has been no Notice of Appeal filed. In any event, counsel for the applicant has advised the Court that the Notice of Appeal is to be filed within a week.
6. The principles to be applied on this application are set out in the judgment of Yehia J in R v Smith referred to above. As noted above her Honour noted at [26] that s 22 poses a significant hurdle to any grant of bail. In relation to the construction of special or exceptional circumstances as set out in s 22 of the Bail Act her Honour held at [27] as follows: "What must be shown is that there is some situation which is out of the ordinary or unusual in some respect which the applicant can point to as being special or exceptional."
7. Her Honour then referred to the judgment of Harrison J in R v Naizmand [2016] NSWSC 386 where his Honour said as follows: "The expression 'exceptional circumstances' is not defined in the legislation. Clearly, enough circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things a reference to circumstances being exceptional is literary a reference to the regularity with which they might be expected to occur not necessarily a reference to the nature or quality of the circumstances in question. In other words, what I look for are circumstances that are or that appear to be an exception to what normally or regularly occurs whatever may be their particular or defining characteristics."
8. In relation to the basis of the application relying in part on the advice of Kings Counsel for the applicant and his submissions to be filed in the Court of Criminal Appeal, what her Honour said at [31] and following is relevant. At [31]: "Where the grounds of appeal are put forward as the only or principle factor to demonstrate special or exceptional circumstances an applicant has to show much more than that the grounds seem arguable. It may be necessary for the respondent to establish that the appeal is most likely to succeed." [32] If, however, the merit of the appeal is put forward as part of a combination of factors to demonstrate special or exceptional circumstances the relevant criteria in assessing the merits of the appeal would appear to be whether the grounds relied upon by the applicant in the appeal were reasonably arguable or that there were reasonable prospects for the appeal." [Authorities and citations omitted.]
9. Here, the applicant relies on a combination of factors, namely, strong prospects of appeal, financial position of the applicant and strong subjective factors pursuant to s 18 of the Bail Act to demonstrate he is not an unacceptable risk in terms of a bail decision.
10. The applicant makes out a strong case that the proposed grounds of appeal are arguable. The more difficult task is to determine whether there are reasonable prospects of a successful appeal given that the only evidence before me is the advice and written submissions of Holt KC to be filed on behalf of the applicant in the Court of Criminal Appeal.
11. I find that the submissions of Holt KC are as submitted by the Crown, argumentative. The trial took place over a period of six weeks and I have been informed that there are over 1600 pages of transcript. None of the exhibits or the transcripts of the trial judge's summing-up or directions of law are available on this application.
12. Yehia J referred to the judgment of El-Hili and Melville v R [2015] NSWCCA 146. There Hamill J, delivering the judgment of the Court, referred at [13] to the construction of special or exceptional circumstances in s 22 of the Bail Act. His Honour said at [13]: "First where s 22 is engaged there are two stages. The applicant must demonstrate that special and exceptional circumstances exist justifying the decision to grant bail. Then the Court must apply the unacceptable risk test and do so by application of the exhaustive list of matters set out in s 18. The second proposition is that the same factors in evidence may operate at both stages. Where an applicant establishes special and exceptional circumstances it is likely that the same material will also succeed in satisfying the unacceptable risk test. However that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act."
13. It is a difficult exercise to make an assessment of the strength of the applicant's appeal to the Court of Criminal Appeal in terms of its prospects of success on the limited evidence available and any assessment which I must make must be regarded as somewhat imperfect. I do accept on face value the opinions expressed by Holt KC in his letter dated 24 July 2023 that the following are reasonably arguable: 1. First, that the trial judge erred in admitting the text messages into evidence that were inadmissible contrary to s 76 of the Evidence Act and were highly prejudicial to the applicant; 2. Secondly, that the admission of this evidence caused a miscarriage of justice; and 3. Thirdly, that the applicant suffered a profound forensic disadvantage when the messages were later admitted in that his counsel was unable to cross-examine on them and to comply with his obligations pursuant to s 43 of the Evidence Act.
14. I acknowledge the difficulty caused by the lack of context and I hesitate to be critical of another trial judge in this Court. However, I find that each of the three above matters appear on the evidence before me to be reasonably arguable and if accepted would have reasonable prospects of success on appeal.
15. The hearsay evidence regarding the applicant's financial position could not be regarded as entirely reliable, however, I accept that prior to his separation from his wife that he could service his various creditors and provide financial assistance to his family. It is not clear whether he has complied with his obligations under the property settlement with his former wife, the victim, however, I accept that since his incarceration his monthly expenses and legal fees have been paid by his family and partner and that he has suffered some financial hardship. I do accept that his employment at TQM Design & Construct is open to him in the event that he was released on bail.
16. Section 22(3) provides that the unacceptable risk test applies to a bail decision under s 22. I take into account the following relevant factors pursuant to s 18 of the Act. 1. S 18(a) That the applicant has no prior criminal convictions; 2. (b) That he has been convicted of 28 serious offences; 3. (c) That relying on Exhibit 1.4 that the Crown's case was relatively strong; 4. (f) That the applicant has complied with stringent bail conditions for a period of some two years. 5. (i) If successful on appeal there will be a re-trial. 6. (i1) if convicted on re-trial the applicant would be likely to have a custodial sentence imposed, noting that he is presently serving a lengthy custodial sentence. 7. (j) I find on the limited material available that the applicant has reasonably arguable prospects of success on appeal for the above reasons.
17. I accept the submission made on behalf of the applicant that the fact of his convictions and lengthy custodial sentence are not necessarily determinative of the question of risk on this bail application.
18. I also take into account the factors submitted in favour of the application by his counsel. He was born on 11 June 1987 in Lebanon and returned with his mother to Australia when he was six months old. His mother was an Australian citizen at the time of his birth and accordingly he is an Australian citizen. He has also lived the whole of his life in Australia from the time he arrived as a baby. The entirety of his schooling and employment has taken place in the Sydney region and he lived with his parents at home and three sisters until he married in November 2012. He was 25 years of age at that time.
19. It has been submitted on his behalf that the applicant is a man of considerable industry and he has accumulated a not insignificant property and financial portfolio. His financial position has been heavily and adversely affected by his incarceration and the property settlement concluded with his former wife has left him in a somewhat invidious position in terms of being able to fulfil his financial obligations. He was in full time employment at the time of his trial and his employers are more than happy to have him immediately recommence his employment with them should the Court admit him to bail. It was submitted that there was no question of risk in terms of the commission of further offences, the question of endangering the community and of interference with witnesses. Those are matters which are relevant to this determination pursuant to s 17 of the Bail Act 2013 which provides as follows. "17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will - (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision. (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement)."
20. On balance on assessment of the bail concerns as defined in s 17 and taking into account all relevant matters under s 18 I am not of the view that the applicant is an unacceptable risk in that if released from custody on bail subject to his appeal that he will (a) fail to appear at any proceedings for the offence or (b) commit a serious offence, or (c) endanger the safety of the victim or the community, or (d) interfere with witnesses or evidence provided his bail is subject to stringent conditions in accordance with proposed bail conditions which were marked for identification as MFI 2 as amended by me.
21. I therefore find that the combination of factors here as set out above establish special or exceptional circumstances that justify bail being granted to the applicant pending his appeal to the Court of Criminal Appeal subject to stringent conditions. I will just hand a copy of those conditions down now.

Orders

1. I make the following orders: 1. The applicant is granted bail until the conclusion of his appeal to the Court of Criminal Appeal subject to the following conditions that the applicant is: 1. To appear at the Court of Criminal Appeal on the first return date of the Notice of Appeal and thereafter on any further date as required. 2. To be of good behaviour whilst he is on bail. 3. To report to Riverwood Police Station each Monday, Wednesday and Friday between the hours of 6am and 8pm. 4. To reside at 176 Fowler Road Illawong, New South Wales 2206. 5. Not to be absent from the property between the hours of 10pm to 5am. 6. To only operate one mobile telephone service and to provide that number to the officer in charge within 24 hours of its registration. 7. Not to approach or be within 100 metres of Sydney International Airport or any other recognised point of international departure. 8. Not to contact directly or indirectly except through his lawyers any prosecution witness made known to him. That includes contact in person, through another person by telephone, SMS, email, Facebook or any other form of electronic contact. 9. The applicant's passport is to be surrendered to the officer in charge (if not already seized) or the Court within 24 hours of being released. He is not to make application for any form of alternative overseas travel document. 10. Two or more acceptable persons are to provide security and agree to forfeit the sum of $3 million should the applicant fail to attend court in accordance with his bail acknowledgment. 11. The applicant is to present himself at the front door of his residence at the direction of any police officer to confirm compliance with his curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so having regard to the rights of other occupants of the premises to peace and privacy. 12. The applicant is to file his Notice of Appeal in the Court of Criminal Appeal within 14 days of today. 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: 04 August 2023