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Court of Criminal Appeal 27 August 2025

ZBJ v R

[2025] NSWCCA 138

Sexual offences
CRIMINAL LAW BAIL ON APPEAL RELEVANT CONSIDERATIONS

Citation: ZBJ v R [2025] NSWCCA 138
Court: Court of Criminal Appeal, NSW
Date: 27 August 2025
Judge(s): Harrison CJ at CL, Hamill J, Sweeney J

Background

The applicant (referred to by the pseudonym ZBJ, with a non-publication order applying) was convicted in the District Court in February 2022 of maintaining an unlawful sexual relationship with a child under 16 years, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The offending was alleged to have been committed against his daughter over a period between 2007 and 2008. On conviction, the applicant was taken into custody and later sentenced to 18 years imprisonment with a non-parole period of 11 years, backdated to 23 February 2022. He will not be eligible for parole until 22 February 2033.

The applicant filed a notice of intention to appeal in November 2022, but that notice lapsed in November 2023. He filed his notice of appeal in December 2024, requiring an extension of time. In July 2025, a differently constituted bench granted leave to appeal out of time. One proposed ground of appeal asserts that s 66EA of the Crimes Act is constitutionally invalid, which triggered notice obligations under s 78B of the Judiciary Act 1903 (Cth).

Once leave to appeal out of time was granted, proceedings were formally pending before the Court and jurisdiction to hear a release application arose. ZBJ then applied for bail pending appeal under s 49 of the Bail Act 2013 (NSW), opposed by the Director of Public Prosecutions.

  • Whether ZBJ had established "special or exceptional circumstances" justifying bail under s 22 of the Bail Act 2013 (NSW), as required for an applicant pursuing a conviction appeal
  • Whether the prospects of success on appeal were sufficiently strong to contribute to special or exceptional circumstances
  • Whether the risk of the applicant serving all or most of his sentence before the appeal is determined supported a finding of special or exceptional circumstances
  • How the constitutional challenge to s 66EA, and the attendant s 78B notice process, affected the timing and character of the appeal

Decision

Section 22 of the Bail Act imposes a significant hurdle on applicants seeking bail pending a conviction appeal, requiring the establishment of "special or exceptional circumstances." The Court confirmed the established approach from El-Hilli & Melville v R and subsequent authorities: special or exceptional circumstances may arise from a combination of factors, and it is not necessary to show the appeal is almost certain to succeed. The two most commonly relevant considerations are the prospect of the sentence expiring before the appeal is determined, and the merits of the appeal.

On the first consideration, the Court found no realistic prospect that ZBJ would serve all or most of his sentence before the appeal is heard. The non-parole period does not expire until 2033 and the total sentence extends to around 2040. This factor therefore did not assist the applicant.

On the merits, the Court assessed the proposed grounds on the limited material available. While Hamill J accepted that some grounds may be arguable, he was not persuaded they enjoyed particularly good prospects of success. The submission that the prosecution would have no available evidence on any retrial was described as devoid of merit, including because legislative provisions would permit a recording of the complainant's trial evidence to be played to a jury. The assertion regarding the inadmissibility of expert evidence on counter-intuitive victim behaviour was found to be contrary to authority from both the Court of Criminal Appeal and the High Court.

Hamill J noted that, if the application were assessed only under the unacceptable risk test in ss 17 to 19 of the Bail Act, he would have been inclined to grant bail on strict conditions, observing that ZBJ had been a model bailee prior to his conviction. However, s 22 required more: the establishment of special or exceptional circumstances. On all the material before the Court, that threshold was not met, and the release application was dismissed by the full bench.

Orders Made

  • The release application was dismissed.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), an applicant pursuing a conviction appeal on indictment must establish "special or exceptional circumstances" before bail can be granted, a threshold that operates in addition to, and independently of, the unacceptable risk test.
  • The two most commonly relevant considerations in appeals bail applications are the prospect of the sentence being substantially served before the appeal is determined, and the arguable merit of the grounds of appeal; neither consideration is individually decisive.
  • A finding that an applicant presents no unacceptable risk under ss 17 to 19 of the Bail Act is not, by itself, sufficient to justify bail pending appeal where s 22 applies.
  • Refusing bail, the Court found that a constitutional challenge to an offence-creating provision does not automatically establish special or exceptional circumstances, particularly where other grounds lack strong prospects and the sentence will not expire for many years.
  • A lapsed notice of intention to appeal means there are no "proceedings for the offence pending" in the Court of Criminal Appeal, removing jurisdiction to hear a bail application under ss 61, 62 and 67 of the Bail Act until leave to appeal out of time is separately obtained.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 22, 49, 61, 62, 67
- Crimes Act 1900 (NSW), s 66EA(1)
- Criminal Procedure Act 1986 (NSW), ss 161A, 293A, 294A, 306B, 306ZR
- Evidence Act 1995 (NSW), ss 89A, 94(4), 94(5), 97A, 164, 165A, 165B
- Judiciary Act 1903 (Cth), s 78B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(5)
- Commonwealth Constitution, s 80

Cases:
- Aziz (a pseudonym) v R (2022) 110 NSWLR 317; [2022] NSWCCA 76
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- El-Hilli & Melville v R [2015] NSWCCA 146
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- Mashayekhi v R [2021] NSWCCA 55
- Mehajer v R [2024] NSWCCA 226
- Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57
- Roach v R [2019] NSWCCA 54
- ZBJ v R [2025] NSWCCA 105