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Supreme Court 17 December 2021

Macdonald v R; Obeid v R; Obeid v R

[2021] NSWSC 1662

Fraud & dishonesty

Citation: Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662
Court: Supreme Court of New South Wales
Date: 17 December 2021
Judge: Wilson J

Background

Three applicants, convicted following a judge-alone trial before Fullerton J, each sought release on bail pending appeals against their convictions and sentences. All three had been found guilty of conspiracy to commit the common law offence of misconduct in public office, an offence for which the penalty is at large. Fullerton J sentenced the first applicant to 9 years and 6 months imprisonment (non-parole period of 5 years and 3 months), the second applicant to 7 years imprisonment (non-parole period of 3 years and 10 months), and the third applicant to 5 years imprisonment (non-parole period of 3 years).

Each applicant had filed a Notice of Intention to Appeal with the Court of Criminal Appeal, challenging both conviction and sentence, or seeking leave to appeal where necessary. None had yet appeared before the Court of Criminal Appeal when these release applications were heard.

The second applicant had previously made an unsuccessful bail application before Fullerton J immediately after sentencing in October 2021, raising a threshold procedural question about whether the present application could be entertained at all.

  • Whether the Supreme Court had jurisdiction under s 62 of the Bail Act 2013 (NSW) to hear bail applications from convicted persons whose appeals were pending in the Court of Criminal Appeal.
  • Whether the second applicant (E Obeid) cleared the s 74 threshold, which restricts multiple release applications to the same court, by demonstrating either material new information or a change in relevant circumstances.
  • Whether each applicant established "special or exceptional circumstances" under s 22 of the Bail Act sufficient to justify release pending appeal.

Decision

Jurisdiction and the s 74 threshold (Edward Obeid)

Wilson J confirmed that the Supreme Court had jurisdiction under s 62 of the Bail Act because each applicant had been convicted before this Court, appeals were pending, and none had yet appeared in those appeal proceedings. For the second applicant, the s 74 restriction on repeat applications required him to demonstrate either material new information or a change in circumstances. The Court rejected the argument that the proposed involvement of an "acceptable person" willing to provide security constituted a relevant change in circumstances, because flight risk had not been a concern in the earlier refusal and remained irrelevant. However, the Court accepted that refined and more fully developed draft grounds of appeal, supported by draft submissions not previously available, did constitute material new information sufficient to clear the s 74 threshold and permit the application to be heard.

Special or exceptional circumstances under s 22

Section 22 of the Bail Act imposes a high threshold for persons in custody following conviction: bail may only be granted if special or exceptional circumstances are established. Each applicant relied upon a combination of factors, including the strength of proposed grounds of appeal, health concerns, conditions of imprisonment during the COVID-19 pandemic, family responsibilities, and prior compliance with bail conditions.

The Court accepted that each applicant had an arguable case on appeal but noted this alone was insufficient to constitute special or exceptional circumstances. Health concerns and COVID-19 related conditions in custody were acknowledged, but Wilson J observed that such burdens are shared with all prisoners and the broader community, and were not specific to these applicants. Family responsibilities and prior bail compliance were likewise considered but given limited weight, as these are circumstances common to many persons serving custodial sentences with pending appeals.

Considering all factors collectively, Wilson J concluded that none were sufficiently unusual, uncommon, striking, or compelling, either individually or in combination, to establish special or exceptional circumstances. Granting bail in the absence of such circumstances would constitute a serious interference with the administration of criminal justice, particularly given that the applicants had been convicted and sentenced by a court and no longer enjoyed the presumption of innocence.

Orders Made

  • The release application filed by Ian Macdonald is refused.
  • The release application filed by Edward Obeid is refused.
  • The release application filed by Moses Obeid is refused.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), persons convicted and sentenced face a high threshold: bail pending appeal requires "special or exceptional circumstances," and an arguable appeal ground alone does not satisfy that standard.
  • Refusing bail in the absence of special or exceptional circumstances reflects the principle that staying an order of imprisonment is a serious interference with the administration of criminal justice, particularly where the presumption of innocence no longer applies.
  • The s 74 restriction on multiple release applications to the same court is not absolute: presenting materially different and more developed draft grounds of appeal and submissions, which were not available at an earlier application, can constitute "material information" sufficient to permit a further application under s 74(3)(b).
  • Health concerns, COVID-19 conditions in custody, family responsibilities, and prior compliance with bail conditions may be relevant considerations, but courts will afford them limited weight where such circumstances are widely shared among the broader prison population.
  • In assessing the merits of an appeal for bail purposes, a different single judge is not as constrained as the original trial judge who was also the tribunal of fact, since the trial judge could not fairly assess challenges to her own decisions.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 22, 26, 62, 74
- Criminal Procedure Act 1986 (NSW)

Cases
- Carnaby v R [2021] NSWCCA 203
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- El-Hilli and Melville v R [2015] NSWCCA 146
- Gould v R (Cth) [2021] NSWCCA 27
- Hopgood v R [2019] NSWCCA 246
- Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Marotta & Ors v The Queen (1999) 73 ALJR 265; [1999] HCA 4
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Alo-Bridget Namoa [2020] NSWSC 1872
- R v Fletcher [2020] NSWSC 1478
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 15) [2020] NSWSC 1949
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) (2021) 394 ALR 125; [2021] NSWSC 1343
- R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445
- R v Williams [2020] NSWCCA 348
- R v Zerafa [2021] NSWDC 547
- Re Clarkson [1986] VR 583
- Sakhra v R [2021] NSWCCA 187
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56