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District Court 17 December 2019

R v Bazouni (Release Application)

[2019] NSWDC 757

Fraud & dishonesty
CRIMINAL LAW SPECIAL OR EXCEPTIONAL CIRCUMSTANCES WHERE APPEAL IS MOST LIKELY TO SUCCEED

Citation: R v Bazouni (Release Application) [2019] NSWDC 757
Court: District Court of New South Wales
Date: 17 December 2019
Judge: Weinstein SC DCJ

Background

A jury convicted the offender on 1 November 2019 of five counts of dishonestly obtaining a financial advantage by deception and one count of attempting to do so, contrary to section 192E of the Crimes Act 1900 (NSW). The matter was stood over for sentence, and on 12 December 2019 the offender's senior counsel applied for release on bail pending an appeal against conviction.

The proposed appeal raised two grounds: first, that the guilty verdicts were unreasonable or unsupported by the evidence; and second, that the trial judge misdirected the jury on the mental element of the offence by including the concept of recklessness in the dishonesty direction. The application focused almost entirely on the second ground.

The specific issue was a written jury direction (MFI 16) that told the jury it must find the offender knew "or was reckless" that his conduct was dishonest by the standards of ordinary people. The Judicial Commission's Bench Book formulation does not include the recklessness qualifier. The offender argued this lowered the bar for conviction impermissibly. Neither party's counsel had objected to the direction at trial.

  • Whether the offender could establish "special or exceptional circumstances" under section 22 of the Bail Act 2013 (NSW) to justify bail after conviction on indictment while an appeal is pending.
  • Whether the agreed test for that threshold, namely that the appeal is "most likely to succeed," was satisfied.
  • Whether the jury direction combining recklessness with dishonesty constituted a misdirection on the mental element of the offence.
  • What weight, if any, should be given to the failure of trial counsel to object to the direction at the time it was given.

Decision

Section 22 of the Bail Act 2013 imposes a strict restriction on bail where an appeal against conviction on indictment is pending: bail cannot be granted unless "special or exceptional circumstances" are established. The parties agreed, consistent with Court of Criminal Appeal authority, that the relevant test where the application relies on appeal grounds is whether the appeal is "most likely to succeed." This is a demanding standard, higher than a finding that the appeal may or is likely to succeed.

The offender's central argument was that the addition of "or was reckless" to the dishonesty direction in MFI 16 was a legal error. Recklessness, the offender submitted, is relevant to the element of deception, not to dishonesty. Inserting it into the dishonesty direction meant the jury may have convicted on a lower mental state than the law requires. The offender relied on Maitland v R; Macdonald v R [2019] NSWCCA 32, where a misdirection on an element of an offence led to findings of miscarriage of justice, although the court noted that in that case the error had been raised at trial.

The Crown countered that the direction, read as a whole, was correct having regard to both the statute and the Bench Book. The Crown also argued that the failure of counsel to object at trial was itself indicative that the point was not considered significant at the time, and that this was relevant to whether any miscarriage of justice had occurred.

His Honour concluded that, while the offender's appeal argument was arguable and may even have been likely to succeed, it did not meet the higher threshold of being "most likely to succeed." The Crown's position on the correctness of the direction was itself arguable. The failure to explain why no objection was taken at trial was also a factor, though a lesser one. On that basis, the application was refused.

Orders Made

  • The offender's application for release on bail pending appeal was refused.
  • His Honour indicated he would attempt to expedite procurement of the summing-up transcript for the parties.

Key Takeaways

  • Under section 22 of the Bail Act 2013, bail after conviction on indictment pending a Court of Criminal Appeal appeal requires establishing "special or exceptional circumstances." Where the application relies solely or principally on appeal grounds, the court must be satisfied the appeal is "most likely to succeed," a standard higher than "likely to" or "may" succeed.
  • A jury direction that added "or was reckless" to the dishonesty element of a section 192E offence (where the Bench Book formulation does not include that phrase) was identified as a reasonably arguable ground of appeal, but the District Court held it did not reach the "most likely to succeed" threshold because the Crown's contrary position remained arguable.
  • Failure by trial counsel to object to a jury direction is a relevant, though not determinative, consideration when assessing whether a misdirection caused a miscarriage of justice on a bail application.
  • The demanding bail test under section 22 operates independently of whether bail concerns under section 17(2) exist. Even where there are no concerns about flight risk, reoffending, or witness interference, the section 22 threshold must still be separately satisfied.
  • Reasons were published promptly given the time-sensitive nature of post-conviction bail applications, with the court acknowledging that the parties' arguments had not yet been fully developed for the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 18, 19, 20, 22
- Crimes Act 1900 (NSW), ss 192E(1)(b), 344A(1)
- Criminal Appeal Rules (No 2), r 4

Cases
- El-Hilli and Melville v R [2015] NSWCCA 146
- Maitland v R; Macdonald v R [2019] NSWCCA 32
- Obeid v R (No 2) NSWCCA 321
- Petroulias v R [2010] NSWCCA 95