Citation: Obeid (Edward) v Director of Public Prosecutions [2022] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 9 December 2022
Judges: Basten AJA; Garling J; R A Hulme AJ
Background
The applicant was sentenced in October 2021 to seven years' imprisonment, with a non-parole period of three years and ten months, following conviction for conspiracy to commit wilful misconduct in public office. He filed a notice of appeal against conviction (but not sentence) in September 2022. This application was his first bail application to the Court of Criminal Appeal, though he had previously made two unsuccessful applications, one to the trial judge and one to a single judge of the Supreme Court.
The application was heard concurrently with a bail application by the applicant's son, who was convicted of the same offence. The applicant's senior counsel largely adopted the submissions made on behalf of the son, adding one further ground particular to the applicant: a medical issue concerning his eye treatment.
The Court dismissed the companion application by the son at the same time. The outcome of that application directly affected the result here, as the shared grounds did not succeed in either matter.
Legal Issues
- Whether the applicant satisfied the special or exceptional circumstances test required for release on bail pending determination of a conviction appeal under the Bail Act 2013 (NSW)
- Whether the strength of the applicant's grounds of appeal, including a specific challenge to the trial judge's reliance on s 87(1)(c) of the Evidence Act 1995 (NSW), warranted bail
- Whether the applicant's inability to access regular medical treatment in custody provided a sufficient independent basis for release on bail
Decision
The Court addressed the shared grounds by reference to its concurrent judgment in the son's application, finding those matters did not warrant release for either applicant. The Court noted that the applicant's role in the conspiracy had been found by the trial judge to involve more limited overt conduct than that of the other accused. The trial judge had relied in part on s 87(1)(c) of the Evidence Act to find the applicant's participation was established, and ground 6 of the appeal directly challenged that reasoning.
The Court acknowledged the applicant's position was analytically distinct from that of his co-accused in certain respects, but found that this distinction did not produce a different result on the bail application. The strength of the appeal grounds, including the s 87(1)(c) challenge, was not sufficient to meet the threshold for release.
On the medical question, the evidence showed the applicant required monthly eye injections that could not be administered at the correctional centre. Appointments had been missed due to a combination of the applicant declining to attend in handcuffs on one occasion, and Corrective Services cancelling another appointment due to staff shortages. Senior counsel ultimately did not press the medical matter as independently sufficient to justify bail, and the Court agreed that was an appropriate concession.
The Court observed that even if the medical issue had been pressed, the evidence fell short of what would be required to justify release on that basis alone. More detailed medical evidence and a clearer showing that adequate treatment simply could not be provided in custody would have been needed. The Court noted that prisoners are entitled to proper health services, but that bail is not generally the appropriate mechanism to enforce the State's obligations in that regard.
Orders Made
- The release application was refused.
Key Takeaways
- Refusing bail pending a conviction appeal, the Court of Criminal Appeal confirmed that release on bail on medical grounds requires detailed evidence establishing that adequate treatment cannot be provided within a custodial setting, not merely that appointments have been missed or disrupted.
- Prisoners serving sentences, whether or not an appeal is pending, are entitled to proper health services, but bail is not generally the appropriate remedy for failures by the State to deliver those services.
- A ground of appeal challenging the trial judge's reliance on s 87(1)(c) of the Evidence Act 1995 (NSW) to establish participation in a conspiracy was considered but did not, in the circumstances, reach the threshold required for release pending appeal.
- Where an applicant's grounds substantially overlap with those of a co-accused whose bail application is dismissed concurrently, the shared grounds will not independently support release for the other applicant.
- Under the Bail Act 2013 (NSW), the special or exceptional circumstances test sets a high bar; the fact that this was a first application to the Court of Criminal Appeal did not alter the substantive analysis, even where prior applications had failed before other courts.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), s 74
- Evidence Act 1995 (NSW), s 87(1)(c)
Cases:
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858 (the trial judgment)