Citation: El-Hilli and Melville v R [2015] NSWCCA 146
Court: Court of Criminal Appeal, NSW
Date: 15 June 2015
Judges: Simpson J, Davies J, Hamill J
Background
Two applicants, each convicted after a judge-alone trial in the District Court of two counts of dishonestly obtaining a financial advantage by deception, sought bail pending their appeals to the Court of Criminal Appeal. Both had previously had bail applications refused by single judges of the Supreme Court in February 2015.
The applicants faced different sentencing positions. One applicant had a non-parole period expiring in February 2017. The other faced a shorter remaining custodial term, with her non-parole period on the second count expiring in March 2016 and her appeal listed for hearing in August 2015. The second applicant also had a five-year-old child in custody with her in gaol.
Both applicants filed notices of appeal and supporting submissions in May 2015, largely raising identical grounds. The applications were heard together, with submissions on behalf of one applicant effectively adopted by the other.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear the bail applications following refusal by the Supreme Court
- What "special or exceptional circumstances" under s 22 of the Bail Act 2013 requires an applicant to establish, including how much merit an appeal must have
- How the s 22 "special or exceptional circumstances" requirement interacts with the "unacceptable risk" test in Division 2 of the Act
- Whether the particular circumstances of each applicant, including proximity of release date, child in custody, and appeal grounds, amounted to special or exceptional circumstances
Decision
Hamill J (with Simpson and Davies JJ agreeing) undertook a detailed analysis of s 22 of the Bail Act 2013, which requires an applicant whose appeal is pending in the Court of Criminal Appeal to establish "special or exceptional circumstances" before bail can be granted. The judgment confirms that this is a two-stage process: the applicant must first satisfy the special or exceptional circumstances threshold, and the Court must then separately apply the unacceptable risk test under Division 2. However, the same factual matters may be relevant at both stages, and satisfying the first stage will often (though not inevitably) resolve the second in the applicant's favour.
On the question of appeal merit, the Court held that an applicant need not demonstrate that success on appeal is "virtually inevitable." Sufficient merit in the appeal is a necessary component of the special or exceptional circumstances inquiry, but the threshold is less demanding than that. The proximity of a release date is also a relevant factor, as is the presence of a young child in custody. No single factor is determinative; a combination of factors may cumulatively amount to special or exceptional circumstances.
Applying these principles, the Court refused bail to both applicants. In the first applicant's case, the non-parole period did not expire until February 2017, and the Court was not satisfied the appeal grounds rose to the required level. In the second applicant's case, while the proximity of her release date and the presence of her young child in gaol were treated as significant factors militating in her favour, the appeal was listed for hearing in August 2015, only two months away. Given that proximity, the Court was not satisfied that special or exceptional circumstances had been established, though it noted that if the hearing were further away the result might have differed.
Orders Made
- Release application dismissed (each applicant)
- Bail refused (each applicant)
Key Takeaways
- Under s 22 of the Bail Act 2013, an applicant with a pending conviction or sentence appeal must establish "special or exceptional circumstances" before bail can be granted, and this requirement is at least as onerous as the "show cause" requirement that applies to certain serious offences under Division 1A.
- A two-stage process applies where s 22 is engaged: the special or exceptional circumstances threshold must first be crossed, followed by the unacceptable risk assessment under Division 2. The same evidence and factors can be relevant at both stages.
- Sufficient merit in the appeal is a necessary component of the special or exceptional circumstances inquiry, but it is not necessary to show that success on appeal is "virtually inevitable."
- Proximity of a release date can contribute to a finding of special or exceptional circumstances, particularly when combined with other factors. The Court of Criminal Appeal indicated it might have reached a different conclusion had the appeal hearing been more distant in time.
- A combination of factors, rather than any single consideration, may cumulatively satisfy the special or exceptional circumstances test, as the Court confirmed by treating the second applicant's young child in custody and approaching release date as significant (though ultimately insufficient) matters.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), including ss 16A–16B, 17–20A, 22, 31, 32, 67
- Bail Act 1978 (NSW)
- Bail Amendment Act 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- DPP v Tikomaimaleya [2015] NSWCA 83
- R v Kugor [2015] NSWCCA 14
- M v R [2015] NSWSC 138
- R v Ebrahimi [2015] NSWSC 335
- Raad v R [2015] NSWSC 532
- R v Lago [2014] NSWSC 660
- Alexandridis v R [2014] NSWSC 662
- R v Antoun [2005] NSWCCA 270
- R v Velevski [2000] NSWCCA 445; 117 A Crim R 30
- R v Wilson (1994) 34 NSWLR 1
- Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313
- Petroulias v R [2010] NSWCCA 95
- Peters v The Queen (1996) 71 ALJR 309
- Marotta v The Queen (1999) 73 ALJR 265
- Robinson v R (1991) 65 ALJR 519
- Chew v The Queen (1991) 66 ALJR 209
- Chew v The Queen (No 2) (1991) 66 ALJR 221
- R v MFA [2002] NSWCCA 49
- R v George Patrick O'Neill, unreported CCA (NSW) 13 May 1992