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23
Court of Criminal Appeal 20 December 2016

Obeid v R (No 2)

[2016] NSWCCA 321

Fraud & dishonesty
CRIMINAL LAW PROCEDURE BAIL VARIOUS FACTORS RELIED UPON AGE AND ILL HEALTH

Citation: Obeid v R (No 2) [2016] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 20 December 2016
Judges: Bathurst CJ; Hoeben CJ at CL; R A Hulme J

Background

The applicant was convicted by jury on 28 June 2016 of the common law offence of wilful misconduct in public office. On 15 December 2016, Beech-Jones J sentenced him to five years' imprisonment with a non-parole period of three years, expiring 14 December 2019.

Following sentencing, the applicant's trial counsel withdrew and new senior counsel immediately applied for bail. That application was refused by Beech-Jones J at first instance. The applicant then brought a fresh bail release application in the Court of Criminal Appeal, with notices of intention to appeal having been filed in relation to both conviction and sentence.

  • Whether the applicant had established "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW), which is a threshold requirement before bail can be granted where an appeal against conviction on indictment is pending in the Court of Criminal Appeal
  • Whether the applicant's proposed grounds of appeal had sufficient prospects of success to satisfy that threshold
  • Whether personal factors (age, ill-health, risk of serving a substantial portion of the sentence before appeal finalisation) and procedural factors, taken together, could establish special or exceptional circumstances

Decision

The Court confirmed that s 22 of the Bail Act 2013 creates a two-stage process. First, the applicant must establish special or exceptional circumstances justifying a grant of bail. Second, the court must separately apply the unacceptable risk test under s 18. The same material may be relevant to both stages, but each test must be applied on its own terms.

The applicant advanced at least 13 matters said to constitute special or exceptional circumstances. These included the arguable strength of proposed grounds of appeal (particularly uncertainty in the law concerning the "duty" element of the offence), his age and serious health concerns, the risk of serving a substantial proportion of his sentence before any appeal was resolved, the absence of any flight or reoffending risk, and the existence of a pending further criminal trial for which he said liberty would assist preparation.

The Court accepted that the legal uncertainty surrounding the formulation of the relevant "duty" in Ground 1 of the proposed appeal was a matter of genuine substance. However, it noted that the majority of the proposed grounds of appeal concerned matters that had not been raised at trial. No direct explanation was offered for that omission. To succeed on those grounds, the applicant would need to establish a miscarriage of justice under r 4 of the Criminal Appeal Rules (NSW), a significant additional hurdle.

The Court was unwilling to express detailed views on the merits of the appeal at the bail stage, noting that argument at such a hearing is necessarily less developed than at a full appeal. Taking a broad overall view, and noting that the Court had indicated it would list the appeal for hearing as early as 15 March 2017, the Court concluded that the applicant's prospects were not sufficiently strong to meet the threshold in s 22, even when all personal and procedural factors were considered in combination. Bail was refused.

Orders Made

  • The bail release application was refused.

Key Takeaways

  • Under s 22 of the Bail Act 2013, an applicant seeking bail while a conviction appeal is pending must first establish special or exceptional circumstances before the general unacceptable risk test under s 18 applies. The same evidence can be relevant to both stages, but each stage must be assessed separately.
  • Refusing bail, the Court of Criminal Appeal emphasised that where most proposed grounds of appeal concern matters not raised at trial, the absence of any explanation for that failure weighs heavily against finding the appeal has sufficient prospects to support a finding of special or exceptional circumstances.
  • An applicant who fails to raise grounds at trial faces the additional requirement of establishing a miscarriage of justice under r 4 of the Criminal Appeal Rules before those grounds can be considered on appeal, adding to the uncertainty of the prospects assessment at the bail stage.
  • Personal factors such as age, ill-health, absence of flight risk, and the prospect of serving a significant portion of a sentence before an appeal is finalised are all capable of being relevant to the special or exceptional circumstances inquiry. However, the Court found that these factors, in combination, were insufficient to meet the threshold where appeal prospects were not adequately demonstrated.
  • At the bail stage, a court will reach only a broad overall view of appeal prospects. Detailed merits analysis is reserved for the appeal itself, where argument will be more fully developed.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 18, 19, 20, 22, 61, 62
- Criminal Appeal Act 1912 (NSW), s 10(2)(b)
- Criminal Appeal Rules (NSW), r 4

Cases
- El-Hilli and Melville v R [2015] NSWCCA 146
- Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
- Obeid v R [2016] HCASL 86
- R v Kugor [2015] NSWCCA 14
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Obeid (No 13) [2016] NSWSC 1840
- Trinh v R [2016] NSWCCA 110