Citation: El Khouli v R [2019] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 5 July 2019
Judges: Hoeben CJ at CL; Walton J; Wilson J
Background
The applicant had been convicted in December 2016 by a jury on three counts: dishonestly damaging property by fire for financial gain (arson of a café he co-operated in Hornsby, allegedly to claim insurance) and two counts of doing an act with intent to pervert the course of justice (inducing witnesses to give false accounts to police). In August 2017, he was sentenced to an aggregate term of 8 years and 6 months imprisonment, with a non-parole period of 5 years and 6 months.
The applicant filed a Notice of Intention to Appeal against both conviction and sentence in September 2017, though the appeal was not progressed promptly and was taken out of the list in May 2018. A formal Notice of Appeal and supporting materials were ultimately filed in March 2019, with the appeal listed for hearing on 5 August 2019.
In April 2019, the applicant applied to the Court of Criminal Appeal for release on bail pending the appeal. The District Court had previously refused a release application. The Court of Criminal Appeal heard the release application in May 2019, announced its refusal on the day, and reserved its reasons.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear a further release application following the District Court's refusal
- Whether the applicant could establish "special or exceptional circumstances" under s 22(1) of the Bail Act 2013 (NSW), which is required before bail can be granted where an appeal to the Court of Criminal Appeal is pending
- Whether the strength of the conviction appeal (specifically the separate trial ground) and the sentence appeal (based on parity with the co-offender) were sufficient to constitute special or exceptional circumstances
- If special or exceptional circumstances were established, whether the applicant would also pass the unacceptable risk test under s 18 of the Bail Act 2013
Decision
The Court confirmed its jurisdiction to entertain the application under s 66(1) of the Bail Act 2013, following the District Court's refusal. Section 22(1) of the Bail Act 2013 applied because an appeal was pending in the Court of Criminal Appeal, meaning the applicant bore the burden of establishing special or exceptional circumstances before bail could be granted.
The applicant relied solely on the strength of his pending appeal as the basis for special or exceptional circumstances. The Court examined the applicable standard, drawing on Petroulias v R [2010] NSWCCA 95 and Wilson v R (1994) 34 NSWLR 1, and confirmed that an applicant must demonstrate much more than arguable grounds. The appeal must appear "most likely to succeed."
On the conviction appeal, the Court assessed the separate trial ground and found it was not strong. The applicant's argument that the co-offender being tried separately caused a miscarriage of justice was undermined by the absence of any evidence that the separate trial produced a different result and by the legal principle that separate trials of co-accused are common and legitimate.
On the sentence appeal, the applicant relied on the parity principle, arguing that his sentence was unjustifiably higher than that of his co-offender. The Court found this ground was also not strong. The applicant had not undertaken any comparative analysis of the objective and subjective factors applicable to each offender. The sentencing judge had identified significant differences between the two, including the co-offender's absence of a prior criminal record, better rehabilitation prospects, and injuries sustained during the offence. Because the applicant failed to demonstrate that either appeal was strong, he could not establish special or exceptional circumstances, and bail was refused.
Orders Made
- The release application was dismissed.
Key Takeaways
- Under s 22(1) of the Bail Act 2013, where an appeal to the Court of Criminal Appeal is pending, an applicant must establish "special or exceptional circumstances" before bail can be granted. This threshold is at least as onerous as the "show cause" requirement.
- Relying on the strength of a pending appeal to demonstrate special or exceptional circumstances requires more than showing grounds are arguable. The appeal must appear "most likely to succeed."
- A parity argument on sentence will not readily succeed where the applicant has not conducted a careful comparison of the relevant objective and subjective factors between co-offenders. Differences in criminal history, rehabilitation prospects, and role in the offence can justify sentencing disparity.
- Refusing bail at the threshold stage renders consideration of the unacceptable risk test unnecessary. Both stages must be addressed sequentially, but failure at the first is determinative.
- The Court of Criminal Appeal confirmed it has jurisdiction under s 66(1) of the Bail Act 2013 to hear a release application following refusal by the District Court where an appeal is pending in the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 18, 22, 66
- Bail Act 1978 (NSW), s 30AA
- Crimes Act 1900 (NSW), ss 197(1)(b), 319
- Criminal Appeal Act 1912 (NSW), s 10(2)(b)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Cases
- El-Hilli and Melville v R [2015] NSWCCA 146
- Obeid v R (No 2) [2016] NSWCCA 321
- Petroulias v R [2010] NSWCCA 95
- Wilson v R (1994) 34 NSWLR 1
- R v Williams [2018] NSWSC 994
- Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
- Why v R [2017] NSWCCA 101
- Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4
- Peters v The Queen (1996) 71 ALJR 309
- Collie, Kranz & Lovegrove v R (1991) 56 SASR 302
- R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49