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Court of Criminal Appeal 2 May 2001

REGINA v. SINANOVIC

[2001] NSWCCA 164

Fraud & dishonesty
CRIMINAL LAW BAIL PENDING SPECIAL LEAVE APPLICATION ASSERTED TO BE STRONG GROUNDS, AT BEST, BARELY ARGUABLE.

Citation: Regina v Sinanovic [2001] NSWCCA 164
Court: New South Wales Court of Criminal Appeal
Date: 2 May 2001
Judge(s): Greg James J

Background

The applicant had been convicted in the District Court of New South Wales of dishonestly obtaining a ring from a jeweller by deception. Following an unsuccessful appeal to the Court of Criminal Appeal, he filed an application for special leave to appeal to the High Court of Australia. That application had not yet been listed for hearing and was expected to come before the High Court in September or October 2001.

The applicant sought bail in the Court of Criminal Appeal under the Bail Act 1978 while awaiting the outcome of the special leave application. He remained on a non-parole period in connection with this particular conviction. It was accepted that if the conviction were overturned, no barrier to his release on parole would remain.

  • Whether special or exceptional circumstances existed under section 30AA of the Bail Act 1978 to justify the grant of bail pending a special leave application to the High Court.
  • Whether the proposed grounds of appeal to the High Court were sufficiently strong to constitute such special or exceptional circumstances.

Decision

Greg James J confirmed that the applicable test under section 30AA of the Bail Act 1978 requires the existence of special or exceptional circumstances before bail can be granted pending a special leave application. His Honour drew on the Court of Criminal Appeal's earlier decision in Valevski and the High Court's approach in Marotta, finding that the criteria adopted by those courts were consistent and concerned with the same central question.

The applicant argued that two categories of error at trial constituted special circumstances. First, he contended the summing-up inadequately directed the jury on the factual question of which ring was involved, leaving his defence inadequately put. Second, he argued the summing-up failed to properly direct the jury on the elements of the offence, particularly regarding dishonesty and deception, and that the longstanding controversy about those terms under the Crimes Act 1900 made the matter likely to attract the High Court's attention.

Greg James J was not persuaded by either argument. Having reviewed the summing-up, transcript, and other materials, his Honour concluded that the grounds were, at best, barely arguable and were not highly likely or even likely to result in a successful appeal. This fell well short of establishing the strong case required to justify bail at this stage of the proceedings.

No other special or exceptional circumstances were identified that might independently warrant the applicant's immediate release while his sentence remained in force.

Orders Made

  • Bail refused.

Key Takeaways

  • Under section 30AA of the Bail Act 1978, a court must be satisfied that special or exceptional circumstances exist before granting bail pending a special leave application to the High Court.
  • Refusing bail, Greg James J confirmed that grounds of appeal described as "barely arguable" do not meet the threshold required to establish the strong case needed for bail at this stage.
  • The Court of Criminal Appeal accepted that its own section 30AA test corresponds, in practical terms, with the criteria the High Court applies when exercising its inherent jurisdiction to grant bail so as to ensure that special leave applications do not become futile.
  • Where grounds are merely arguable rather than highly likely to succeed, the public interest in ensuring convicted persons serve sentences imposed by competent courts takes precedence over the applicant's liberty pending a special leave hearing.
  • The existence of a retrial listed for hearing in the near term was noted as part of the factual background, though it did not independently affect the outcome of the bail application in this matter.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Bail Act 1978 (NSW), section 30AA

Cases
- The Queen v Valevski [2000] NSWCCA 445
- Caratti v The Queen (Vol 22) 1 The Legal Reporter, 12 February 2001
- Peters v The Queen (1996) 71 ALJR 309
- Parsons v The Queen (1998) 72 ALJR 1325
- Marotta v The Queen (1999) 73 ALJR 265