REGINA v. SINANOVIC [2001] NSWCCA 164

1 GREG JAMES, J: Application for bail has been made by Hakija Sinanovic who has made application for special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal comprising Wood, CJ. at CL., Hulme, J. and myself sitting on appeal from the conviction at his trial before His Honour Judge Maguire in the District Court of New South Wales. 2 The conviction was in respect of his dishonestly obtaining by deception a ring from a jeweller, Stephen Carturi. Mr. Sinanovic has been involved in a number of matters which went to the Court of Criminal Appeal and which were determined at about the same time. This matter, so I am informed, is the only matter in which he is still serving a non-parole period of a sentence passed upon him. It has been accepted that if the sentence were to be overturned no impediment to his release on parole would exist. It is also accepted that were an order to be made for his release on bail it would be open to him to be paroled to enjoy liberty in accordance with that order. 3 There is, however, another trial of Mr. Sinanovic on another offence, which is a re-trial in consequence of the Court of Criminal Appeal, similarly constituted, upholding an appeal at about the same time as it reached its decision to which I have referred on appeal from Maguire, DCJ. That matter is listed for re-trial on 14 May, about a fortnight away, but I am assured by the Crown that in the event that bail should be granted for the present matter there would be no objection to bail being granted to the appellant on that matter in consequence of my decision. 4 The special leave application, although filed, is not yet listed for hearing. That hearing is expected to take place in September or October. 5 Before me there is evidence from the applicant in particular of his belief as to the circumstances surrounding his conviction and in particular his belief concerning whether or not the ring said to have been obtained by him from the jeweller, was the same as a ring asserted to have been shown to have been pawned by him at the Aceben pawn shop. 6 Further, there is evidence before me that the applicant's counsel sought to obtain access to the ring the Crown contended was the relevant ring, for the purposes particularly of identification of that ring with the description given by the jeweller and the description noted on the pawn ticket and in the pawn records. There is some evidence concerning the correspondence of those descriptions and the prospect that they might be mistaken, but referring to the same ring, such as to exclude that possibility. 7 There is also before me the draft notice of appeal, the amended application for special leave to appeal, the summary of arguments for the special leave application, the trial judge's summing-up, the decision of the Court of Criminal Appeal, certain of the exhibits and transcript at trial, particularly as relate to these questions, and a statement of the pawnbroker. 8 Written submissions have been filed on the bail application on behalf of the applicant and also by the Crown. I have heard short oral submissions from both counsel. It is contended on the applicant's part that the grounds of appeal which, in summary, include that the summing-up was not adequate, omitting entirely, or at least as being insufficient on, the question of putting before the jury the relevant evidence concerning which ring was which, with the consequence that the applicant's defence was not adequately put; and also included that the summing-up failed adequately to direct the jury on the elements of the offence and, in particular, on the necessity that the obtaining by dishonest deception. 9 It is submitted that the first matter would be likely to attract the attention of the High Court since the applicant was not professionally represented on the appeal and, so it is said, the Court of Criminal Appeal undertook to look for and find any errors at the trial and yet in their judgment made no mention of undertaking the task the applicant had been assured would be undertaken. It is said that an analysis of what was said in the summing-up on those matters of fact, therefore, is such as is more likely to attract the High Court because of what is asserted to be the lapse on the part of the Court of Criminal Appeal. 10 As to the legal matters concerning the directions on the offence, it is put this matter is highly likely to attract the attention of the High Court since there has been famously a longstanding controversy as to the proper definition of the term "dishonesty" and the term "deception" as are applicable under the New South Wales Crimes Act 1900. Further, it is said that the verdict is unreasonable or unable to be supported by the evidence so that it could not be said that these points are merely hypothetical, and it is submitted in this regard, this is a proper vehicle for the High Court to determine the matters. 11 On the other hand it has been submitted on behalf of the Crown that an examination of the evidence at the trial and the summing-up shows that the trial judge dealt entirely adequately with all such matters as were raised, and that the question was fairly and squarely before the jury on the evidence as to whether the accused, at the time of obtaining the ring, was making a promise then known to him to be a promise he never intended to comply with, so that a finding that the ring was obtained dishonestly by deception was inevitable, given the evidence of which the jury must have been satisfied beyond reasonable doubt. 12 It is submitted that in that context there is simply no room for the proposition that this is a matter that is likely to attract special leave or that the arguments put are more than barely arguable. 13 The Crown further drew my attention to the recent decision of McHugh, J. in Caratti v. The Queen (Vol. 22) 1 The Legal Reporter for 12 February 2001 in which, after reviewing such decisions as that of Dawson, J. in Peters v. The Queen (1996) 71 ALJR 309 and Hayne, J. in Parsons v. The Queen (1998) 72 ALJR 1325 his Honour held that a strong case needed to be made before the court could grant bail before special leave to appeal has been granted, on the basis that such a grant would interfere with the administration of the criminal justice in the States, which would require that a convicted person serve a sentence, unless that sentence might be set aside by a successful appeal. 14 In that case his Honour had observed that that applicant's grounds could not be regarded as hopeless and were certainly arguable, but that his Honour did not feel confident that special leave would inevitably be granted. McHugh, J's view is to be contrasted with the view of Dawson, J. in Peters (supra) to which McHugh, J. referred. In Peters (supra), as is apparent from the transcript provided to me by counsel for the applicant, his Honour was of the view that it would not have been at all surprising were special leave to be granted and the appeal upheld. It was on that basis that his Honour granted bail. 15 Particularly underlying both decisions was that in the first McHugh, J. was not satisfied that the sentence, or at least the custodial portion of it would be wholly or so substantially served that the grant of bail would not amount to an unwarranted interference, but Dawson, J. was of the view that so much of the sentence would be served if bail were not granted that the grant of special leave in its practical application by removing the necessity for the accused to serve the sentence, would be futile. 16 The criteria, however, in this State for an application made in this court, rather than an application made in the High Court, has been settled by the decision of the Court of Criminal Appeal in The Queen v. Valevski [2000] NSWCCA 445 where the judgment of the court was delivered by Barr, J. Section 30AA of the Bail Act 1978 is applicable and that section requires that there be special or exceptional circumstances, such as would warrant the grant of bail. His Honour in Valevski (supra) referred to the numerous different statements of the content of that test in various cases in the court. 17 His Honour concluded that the s.30AA test did not differ from the common law test applied by the High Court in considering applications to that court for the grant of bail. It may be that the High Court might be, as has been suggested on occasion by Brennan, J. in the grant of bail in its inherent jurisdiction, limited to granting bail as a necessary incident to its entertaining of applications for special leave so as to ensure that they are not futile. 18 Nonetheless, in the application of the test the High Court adopts to achieve the object of avoiding applications for special leave being futile, it applies criteria which the Court of Criminal Appeal has accepted correspond with the criteria that have been applied in this court. Barr, J. in the Court of Criminal Appeal concluded that there was no practical difference. The necessary test is one concerned with the existence of special or exceptional circumstances. 19 Those words permit many matters to be considered in an individual case. What is special or exceptional will, of course, by the very nature of the concept involved in those words, vary from case to case. But it is convenient to look to the criteria adopted by the Court of Criminal Appeal in Valevski (supra) and derived from the approach of Callinan, J. in Marotta v. The Queen (1999) 73 ALJR 265 at 267. 20 There, Callinan, J. identified 13 factors which he considered as applicable to that case as likely to disclose whether, in combination or individually, there were special or exceptional circumstances. In this matter the Crown has, in its written submissions and in oral argument, sought to apply those same criteria to this case. 21 In my view that is to over-sophisticate the circumstances in this case. Those that are contended for by Mr. Papayanni as being special or exceptional and as warranting the grant of bail, even though the question of special leave has not yet been considered by the High Court, are that there were the errors of law to which I have referred and that the grounds of appeal are so strongly arguable that his client would be unjustly deprived of his liberty were the application for bail to be refused. 22 I am not at all persuaded of those matters; indeed, I am of the view, having read the summing-up, the transcript and the matters to which Mr. Papayanni has taken me, that the points he seeks to make are not such as are highly likely or indeed even likely to result in a successful appeal. 23 There are no other special or exceptional circumstances which might bear upon the necessity for an immediate release of the applicant serving the sentence which stands good until or unless set aside by a competent Court of Appeal. Therefore, it is necessary for me to dismiss the application and I do. ******

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