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District Court 2 August 2023

R v Habambo

[2023] NSWDC 295

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME RELEASE APPLICATION TEMPORE JUDGMENT.

Citation: R v Habambo [2023] NSWDC 295
Court: District Court of NSW
Date: 2 August 2023
Judge: Mahony SC DCJ

Background

The applicant was convicted after a six-week jury trial of 28 charges arising from a sustained course of domestic violence against his former wife. The charges included nine counts of common assault, 15 counts of intimidation, one count of choking to render incapable of resistance, one count of suffocation without consent, one count of assault occasioning actual bodily harm, and one count of property damage. He was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of six years, with his earliest parole eligibility falling in October 2028.

Following conviction, a Notice of Intention to Appeal against both conviction and sentence was filed. The applicant then sought bail pending the appeal, relying on senior counsel's advice that four grounds of appeal had strong prospects of success, together with financial hardship suffered since incarceration and favourable subjective circumstances.

The Crown opposed the application, primarily on the basis that no formal Notice of Appeal had yet been filed, that the court lacked sufficient material to assess the merits without the trial transcript or exhibits, and that no special or exceptional circumstances had been established.

Legal Issues

  • Whether the court had jurisdiction to determine the application in the absence of a filed Notice of Appeal
  • Whether the applicant could demonstrate "special or exceptional circumstances" as required by section 22 of the Bail Act 2013
  • Whether the applicant posed an unacceptable risk if released, applying the criteria in sections 17 and 18 of the Bail Act 2013

Decision

Jurisdiction

The court rejected the Crown's submission that no determination could be made without a filed Notice of Appeal. Because a Notice of Intention to Appeal had been duly filed and served within time, the matter was pending in the Court of Criminal Appeal for the purposes of section 10 of the Criminal Appeal Act 1912. Counsel for the applicant also advised that a Notice of Appeal would be filed within a week (at [34]).

Special or Exceptional Circumstances

The court applied the framework from R v Smith [2023] NSWSC 36, which confirmed that section 22 of the Bail Act poses a significant hurdle, requiring the applicant to point to circumstances that are out of the ordinary or unusual in some respect (at [35]–[36]). The court acknowledged the difficulty of assessing appeal prospects on limited material, noting that the trial spanned six weeks and produced over 1,600 pages of transcript unavailable on the application (at [40]).

Despite that constraint, the court accepted on face value the advice of senior counsel that two categories of proposed grounds were reasonably arguable: first, that text messages between the complainant and the applicant's sister were admitted in circumstances arguably contrary to section 76 of the Evidence Act and were highly prejudicial; and second, that the trial judge's repeated refusal to permit cross-examination of the complainant on her own text messages arguably denied the applicant a fair opportunity to advance his defence (at [42]–[43]). The court found that if these grounds were accepted, they would have reasonable prospects of success on appeal (at [43]).

The court treated arguable appeal grounds as one element of a combination of factors, consistent with the approach endorsed in El-Hili and Melville v R [2015] NSWCCA 146. The other factors were the applicant's financial hardship since incarceration and favourable subjective matters, including no prior criminal history, no custodial infractions, positive work reports, and available employment (at [38], [44]–[48]). Together, those combined circumstances established special or exceptional circumstances justifying bail (at [50]).

Unacceptable Risk

Applying sections 17 and 18 of the Bail Act, the court found that the applicant did not pose an unacceptable risk of failing to appear, committing a further serious offence, endangering the safety of the victim or the community, or interfering with witnesses, provided stringent conditions were imposed (at [49]).

Orders Made

  • Bail granted until the conclusion of the applicant's appeal to the Court of Criminal Appeal
  • Conditions imposed include:
  • Appearance at the Court of Criminal Appeal on the first return date of the Notice of Appeal and on any subsequent dates required
  • Good behaviour while on bail
  • Reporting to Riverwood Police Station each Monday, Wednesday and Friday between 6am and 8pm
  • Residence at a specified Illawong address, with a curfew between 10pm and 5am
  • Operation of one mobile telephone service only, with the number provided to the officer in charge within 24 hours
  • Not to approach or be within 100 metres of Sydney International Airport or any other international departure point
  • No direct or indirect contact with prosecution witnesses except through lawyers
  • Passport surrendered within 24 hours of release; no application for alternative overseas travel documents
  • Security of $3 million to be provided by two or more acceptable persons, forfeited on failure to appear
  • Compliance with curfew to be verifiable by police attendance at the residence
  • Notice of Appeal to be filed in the Court of Criminal Appeal within 14 days

Key Takeaways

  • Under section 22 of the Bail Act 2013, an applicant seeking appeal bail must establish "special or exceptional circumstances," a threshold described in R v Smith as requiring something out of the ordinary or unusual, and characterised in the case law as at least as onerous as the "show cause" requirement (at [35]–[36]).

  • Arguable grounds of appeal, assessed on counsel's advice alone, can form part of a combination of factors sufficient to meet the special or exceptional circumstances test, even without formal grounds on foot, provided the Notice of Intention to Appeal has been filed within time (at [42]–[43], [50]).

  • The District Court confirmed its jurisdiction to hear an appeal bail application once a Notice of Intention to Appeal has been duly filed, treating the matter as pending in the Court of Criminal Appeal pursuant to section 10 of the Criminal Appeal Act 1912 (at [34]).

  • Any assessment of appeal prospects on such an application is inherently imperfect where the court lacks the trial transcript, exhibits and judicial directions; the court noted this openly and treated its findings accordingly (at [40], [42]).

  • Financial hardship and strong subjective factors, including no criminal history, positive custodial conduct, and available employment, can contribute to the combined circumstances analysis under section 22, but financial hardship that is an ordinary consequence of conviction and imprisonment carries limited independent weight (at [28], [44], [50]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013
- Crimes Act 1900
- Criminal Appeal Act 1912
- Crimes (Domestic and Personal Violence) Act 2007

Cases
- El-Hili and Melville v R [2015] NSWCCA 146
- R v Naizmand [2016] NSWSC 386
- R v Smith [2023] NSWSC 36