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Court of Criminal Appeal 9 December 2022

Obeid (Moses) v Director of Public Prosecutions

[2022] NSWCCA 270

Fraud & dishonestyPublic order & justice offences
BAIL RELEASE APPLICATION STRENGTH OF GROUNDS OF APPEAL PROPORTION OF NON

Citation: Obeid (Moses) v Director of Public Prosecutions [2022] NSWCCA 270
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 2022
Judges: Basten AJA; Garling J; R A Hulme AJ

Background

The applicant was convicted in July 2021 of conspiring to commit wilful misconduct in public office, together with two co-offenders. In October 2021 he was sentenced to five years' imprisonment with a non-parole period of three years, making him eligible for parole in October 2024.

Although the applicant signalled an intention to appeal at the time of sentencing, he did not file a formal notice of appeal until April 2022. The appeals of all three co-offenders were listed for hearing in April 2023.

This was the applicant's second release application since conviction. An earlier application, heard by a single Supreme Court judge in December 2021, had been refused. The applicant now sought bail from the Court of Criminal Appeal pending the determination of his appeal against conviction.

  • Whether the applicant had established "special or exceptional circumstances" justifying bail under s 22(1) of the Bail Act 2013 (NSW), given that an appeal was pending
  • Whether the strength of the grounds of appeal was sufficient to satisfy that test
  • Whether the proportion of the non-parole period likely to be served before the appeal was determined constituted a relevant circumstance
  • Whether the absence of a flight risk was relevant to the "special or exceptional circumstances" test, or only to the separate "unacceptable risk" test under s 19(1)

Decision

The Court began by clarifying the legal framework. Under s 22(1) of the Bail Act 2013, bail following conviction is not to be granted unless "special or exceptional circumstances" exist. The Court confirmed, drawing on United Mexican States v Cabal (2001) 209 CLR 165, that granting bail pending a conviction appeal is a serious interference with the administration of criminal justice, and the statutory phrase "special or exceptional circumstances" operates as a genuine threshold, not a formality.

On the flight risk argument, the Court was clear that the applicant's history of compliance with bail conditions was accepted but irrelevant to the "special or exceptional circumstances" test. That consideration goes to the separate "unacceptable risk" assessment under s 19(1), which is only reached if the first threshold is already satisfied.

On the proportion of sentence likely to be served before the appeal, the Court acknowledged this was a relevant consideration favouring release, but held it carried limited weight in isolation. Such a circumstance arises in every conviction appeal with a short non-parole period. The Court also noted that some six months of the delay was attributable to the applicant's own late filing of the notice of appeal, even if that attracted no criticism.

On the strength of the grounds of appeal, the Court found it could not be satisfied that the grounds carried a real likelihood of the conviction being overturned. The trial involved a 673-page judgment across 2,047 paragraphs, and the complexity of the legal elements meant that apparent gaps in reasoning could not confidently be identified as manifest errors at this stage. Taking the three circumstances together, the Court was not satisfied that special or exceptional circumstances had been established, and the application was refused.

Orders Made

• The release application must be refused.

Key Takeaways

  • Under s 22(1) of the Bail Act 2013 (NSW), a court must refuse bail pending a conviction appeal unless the applicant establishes "special or exceptional circumstances." The Court of Criminal Appeal confirmed this is a high threshold, grounded in the principle that granting bail at this stage is a serious interference with the administration of criminal justice.

  • Absence of flight risk is not relevant to the "special or exceptional circumstances" test. It is directed instead to the separate "unacceptable risk" inquiry under s 19(1), which is only engaged once the first threshold has been cleared.

  • Serving a significant proportion of a non-parole period before an appeal is determined is a relevant consideration in the bail assessment, but it will not, by itself, satisfy the "special or exceptional circumstances" test. The weight of this factor is further reduced where some of the elapsed time is attributable to delay in filing the notice of appeal.

  • Where a conviction follows a detailed written judgment rather than an inscrutable jury verdict, an applicant has greater material to work with but also faces a higher practical burden in demonstrating manifest error, particularly in a judgment of exceptional length and complexity.

  • Refusing bail does not preclude a differently constituted bench hearing the appeal from making a release order if, once the appeal is underway, it forms the view that the interests of justice warrant release with immediate effect.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 19, 22, 62, 74
- Criminal Procedure Act 1986 (NSW), s 133

Cases:
- United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60
- Ex parte Maher [1986] 1 Qd R 303
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858
- Obeid v R (No 2) [2016] NSWCCA 321