Citation: Obeid v R (No 1) [2016] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 20 December 2016
Judge(s): Bathurst CJ; Hoeben CJ at CL; R A Hulme J
Background
The applicant sought bail pending a prospective appeal following conviction. The application was heard by the full Court of Criminal Appeal, which indicated it would provide a summary of its reasons given the possibility the matter would be taken further.
The applicant's submissions raised two categories of matters in support of bail: personal circumstances, and grounds intended to be pursued on any appeal. The proposed appeal grounds concerned matters that had not been raised before the trial judge, with no direct explanation offered for why they had not been.
Legal Issues
- Whether "special or exceptional circumstances" existed to justify the grant of bail pending appeal under s 22 of the Bail Act 2013 (NSW)
- Whether the strength of the proposed appeal grounds, in circumstances where those grounds were not raised at trial, contributed to such special or exceptional circumstances
- Whether the applicant's personal circumstances independently or collectively satisfied the threshold for bail
Decision
The Court found that the applicant's personal circumstances did not amount to special or exceptional circumstances, particularly given the Court's capacity to list the appeal for hearing as early as 15 March 2017. The relatively short time to a hearing date weighed against the personal circumstances relied upon.
Regarding the proposed appeal grounds, the Court noted a significant procedural obstacle: the grounds had not been raised before the trial judge, and no explanation had been given for that omission. To pursue such grounds on appeal, the applicant would need to demonstrate a miscarriage of justice under r 4 of the Criminal Appeal Rules (NSW).
The Court accepted that the proposed grounds were arguable and left open the possibility that leave to raise them might be granted when the appeal was ultimately heard. However, it concluded that the grounds were not sufficiently strong, either on their own or in combination with the personal circumstances advanced, to constitute special or exceptional circumstances warranting bail under s 22.
The application was accordingly refused.
Orders Made
- Bail application refused.
Key Takeaways
- Under s 22 of the Bail Act 2013 (NSW), a convicted person seeking bail pending appeal must demonstrate special or exceptional circumstances; arguable grounds of appeal are not, on their own, sufficient to meet that threshold.
- Where proposed appeal grounds were not raised at trial and no explanation is given for that omission, the additional requirement to establish a miscarriage of justice under r 4 of the Criminal Appeal Rules reduces the weight those grounds can carry in a bail application.
- Refusing bail, the Court of Criminal Appeal treated the availability of an imminent hearing date as a relevant factor weighing against a finding of special or exceptional circumstances based on personal circumstances.
- Arguable grounds of appeal may still be granted leave when the appeal is actually heard; a finding that grounds are insufficient for bail purposes does not foreclose that outcome.
- Personal circumstances and appeal grounds are assessed both individually and in combination when determining whether the bail threshold under s 22 is met.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), s 22
- Criminal Appeal Rules (NSW), r 4
Cases:
- Obeid v R (No 2) [2016] NSWCCA 321 (referenced in addendum)