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Court of Criminal Appeal 15 March 2019

Roach v R

[2019] NSWCCA 54

Fraud & dishonesty

Citation: Roach v R [2019] NSWCCA 54
Court: Court of Criminal Appeal, NSW
Date: 15 March 2019
Judges: Simpson AJA; Fullerton J; Wilson J

Background

The applicant had been tried in the District Court on nine counts spanning conspiracy to obtain a financial advantage by deception (under the Crimes Act 1900 (NSW)) and multiple offences under the Corporations Act 2001 (Cth), including making available false or misleading information and falsifying books. A jury convicted him on all counts in October 2017, and he was sentenced to an effective total of four years and three months imprisonment, with a non-parole period of two years and three months.

The applicant filed a notice of appeal against conviction and sought leave to appeal against sentence. His grounds of appeal were grouped into indictment grounds, course-of-trial grounds, summing-up grounds, a competence of counsel ground, and a sentencing ground.

Before his appeal was heard (it was listed for April 2019), the applicant applied to the Court of Criminal Appeal for a release order under the Bail Act 2013 (NSW) pending the appeal. He relied exclusively on the asserted strength of his appeal grounds as the basis for that application.

  • Whether the applicant had established "special or exceptional circumstances" justifying bail pending appeal, as required by s 22(1)(a) of the Bail Act 2013 (NSW)
  • Whether, where a bail application relies exclusively on the strength of an appeal, the applicant must demonstrate that the appeal is "most likely to succeed"
  • Whether any of the specific grounds of appeal reached that threshold

Decision

Under s 22(1)(a) of the Bail Act 2013, an applicant who has been convicted on indictment and sentenced cannot obtain bail pending appeal unless special or exceptional circumstances are established. The Court applied the principle from El-Hilli & Melville v R [2015] NSWCCA 146 that where an applicant relies exclusively on the strength of the appeal, it may be necessary to show the appeal is "most likely to succeed."

The Court accepted the applicant's invitation to refrain from expressing detailed views on the merits of individual grounds, following the approach in Obeid v R (No 2) [2016] NSWCCA 321. That approach recognises that arguments at a bail hearing are never as fully developed as they will be at the appeal itself, meaning only a broad overall assessment of prospects is appropriate.

Across all of the grounds advanced, the Court was unpersuaded. The duplicity argument about the conspiracy count, the joinder complaints concerning State and Commonwealth offences in the one indictment, and the course-of-trial grounds (most of which anticipated the competence of counsel ground and raised matters not raised at trial, engaging Rule 4 of the Criminal Appeal Rules) were each found unpersuasive. No ground or group of grounds reached the level of being "most likely to succeed."

Because that threshold was not met, no special or exceptional circumstances were established. The Court therefore did not need to consider the further factors under ss 17 and 18 of the Bail Act, nor matters such as the proportion of sentence already served or whether the non-parole period might expire before the appeal was determined.

Orders Made

  • Application for release order refused.

Key Takeaways

  • Under s 22(1)(a) of the Bail Act 2013 (NSW), a convicted and sentenced person seeking bail pending appeal bears the onus of establishing special or exceptional circumstances; the strength of an appeal can constitute such a circumstance, but only where the appeal is "most likely to succeed."
  • Refusing bail, the Court of Criminal Appeal confirmed that the El-Hilli & Melville threshold of "most likely to succeed" applies when an applicant's entire case for release rests on the merits of the pending appeal.
  • Following Obeid v R (No 2), a court hearing a bail application should reach only a broad overall assessment of appeal prospects, not a detailed analysis, because the arguments will be more fully developed at the appeal hearing itself.
  • Grounds that were not raised at trial are subject to Rule 4 of the Criminal Appeal Rules, which the Court noted when assessing the course-of-trial and competence of counsel grounds as part of its overall assessment of prospects.
  • Where the "most likely to succeed" threshold is not met, the court need not proceed to examine the additional bail considerations under ss 17 and 18 of the Bail Act, such as the proportion of sentence served or the likely expiry of the non-parole period.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 18, 22(1)(a)
- Crimes Act 1900 (NSW), s 192E
- Corporations Act 2001 (Cth), ss 1307, 1309, 1311
- Criminal Procedure Act 1986 (NSW), s 140
- Criminal Appeal Rules, Rule 4

Cases
- El-Hilli & Melville v R [2015] NSWCCA 146
- Obeid v R (No 2) [2016] NSWCCA 321