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Court of Criminal Appeal 7 June 2002

REGINA v. MACLEOD

[2002] NSWCCA 226

Fraud & dishonesty
BAIL PENDING APPEAL TO HIGH COURT SPECIAL LEAVE TO APPEAL ALREADY GRANTED BAIL GRANTED.

Citation: REGINA v. MACLEOD [2002] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 7 June 2002
Judge(s): Greg James J (judgment), O'Keefe J (agreeing), Carruthers AJ (agreeing)

Background

The applicant had been convicted in the District Court on multiple counts arising from corporate securities offences and fraudulent application of company property. These included offences under the Companies (NSW) Code relating to offering prescribed interests without authority and dealing in securities without a licence, as well as offences of fraudulently applying company property as a director and officer.

Following an unsuccessful appeal to the Court of Criminal Appeal, special leave to appeal to the High Court was granted on three grounds. By the time of this application, the custodial component of the applicant's sentence was due to expire on 29 July 2002, with an 18-month parole period running until February 2004. The High Court appeal could not be heard until later in 2002, likely toward the end of the year.

The applicant sought bail pending the High Court appeal. He had fled to the United States after earlier civil proceedings and had been extradited back to Australia, but at the time of this application suitable surety and accommodation had been arranged.

  • Whether "special and exceptional circumstances" existed under the Bail Act 1978 to justify the grant of bail pending an appeal to the High Court
  • Whether the combination of factors present in this case, considered together, could meet that threshold even where no single factor would do so individually

Decision

Greg James J acknowledged that the Bail Act 1978 imposes a high bar for bail pending appeal: special and exceptional circumstances must be demonstrated. His Honour noted that no single factor in this case would, standing alone, satisfy that requirement.

However, looking at the circumstances in combination, his Honour was satisfied the threshold was met. The key factors were: special leave to appeal had already been granted by the High Court; the appeal raised substantive legal questions of some weight; and a substantial portion of the custodial component of the sentence would be served before the appeal could be heard. If the appeal succeeded and a new trial were ordered, it was likely the entirety of any remaining sentence would have been served by then, rendering any remedy effectively meaningless.

The substantive grounds of appeal included whether the Court of Criminal Appeal had erred in its treatment of R v Roffell (concerning the application of a one-man company's property by its director) and whether the legal concept of dishonesty as a criminal element required further clarification. The High Court's decision to grant special leave confirmed these were matters of genuine substance.

His Honour applied the principles drawn from Callinan J's analysis in Regina v Morotta and the Court of Criminal Appeal's own approach in Regina v MFA, concluding that the cumulative weight of the circumstances justified bail.

Orders Made

  • Bail granted
  • Applicant to reside at specified address (or alternative address notified in advance to the Director of Public Prosecutions)
  • Applicant to surrender any passport that comes into possession and not seek further travel documents
  • Applicant to be of good behaviour
  • Applicant to report to the officer in charge at Parramatta Police Station between 7:00 am and 8:00 pm
  • Applicant to prosecute the High Court appeal with due diligence and abide by the High Court's judgment
  • Applicant to surrender to the Sheriff of the Supreme Court of NSW to comply with any order made by the High Court
  • One acceptable person to enter into a surety agreement in the sum of $5,000
  • Any breach of conditions to result in automatic revocation of bail, permitting arrest by any police officer
  • Applicant not to be released while holding a current passport (noted that no current passport was held at the time)

Key Takeaways

  • Under the Bail Act 1978, bail pending an appeal to the High Court requires "special and exceptional circumstances," a threshold the Court of Criminal Appeal confirmed is not easily met.
  • No single circumstance in this case independently qualified as special or exceptional; the court found the threshold satisfied by the combined weight of several factors considered together.
  • Where the grant of special leave has been confirmed and the custodial portion of a sentence is likely to be substantially served before the appeal is heard, those factors together carry significant weight in the bail assessment.
  • The principles applied derived from Callinan J's analysis in Morotta and the Court of Criminal Appeal's own decision in MFA, both of which inform how courts evaluate the combination-of-circumstances approach to this bail threshold.
  • A successful High Court appeal that could only result in a remedy after the sentence had already been served was treated as a relevant factor pointing toward the grant of bail.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW)
- Companies (NSW) Code, ss 169, 570(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- R v Roffell (1985) VR 511
- Regina v Morotta (1999) 73 ALJR 265
- Regina v MFA [2002] NSWCCA 49