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District Court 14 August 2026

R v Colquhoun

[2026] NSWDC 300

Fraud & dishonesty

Citation: R v Colquhoun [2026] NSWDC 300
Court: District Court of New South Wales
Date: 14 August 2026
Judge(s): Abadee DCJ

Background

The applicant was convicted on 12 June 2026 of fraud under s 192E(1)(a) of the Crimes Act 1900 (NSW) and was sentenced on 3 August 2026 to 2 years and 4 months imprisonment, with a non-parole period of 1 year and 2 months. Two days after sentencing, her solicitor filed a notice of intention to appeal against both conviction and sentence in the Court of Criminal Appeal.

On 7 August 2026, the applicant brought a conditional release application (in effect, a bail application) pending the determination of those appeals. The application was supported by affidavit evidence, proposed grounds of appeal for the severity appeal, and two alternative sets of proposed bail conditions.

The Crown did not dispute that the procedural prerequisites for the Court's power to order release under s 62 of the Bail Act 2013 (NSW) were satisfied. The contest centred on whether the substantive threshold under s 22 of that Act had been met.

  • Whether the applicant established "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW) justifying release pending appeals against conviction and sentence
  • Whether, assuming that threshold was met, the applicant presented an "unacceptable risk" within the meaning of s 19 of the Act
  • What bail conditions, if any, were appropriate upon release

Decision

The applicable framework: Section 22 of the Bail Act 2013 imposes a two-stage test for bail applications where appeals are pending in the Court of Criminal Appeal. First, the applicant must establish "special or exceptional circumstances." Second, the court must be satisfied there is no unacceptable risk of the applicant engaging in conduct described in s 19(2)(a)-(d) of the Act. Abadee DCJ confirmed that the same evidence and factors can operate at both stages, and that where special or exceptional circumstances are established, that material will often simultaneously satisfy the unacceptable risk test.

Special or exceptional circumstances: His Honour, applying El-Hilli and Melville v R [2015] NSWCCA 146, noted that no closed list of qualifying circumstances exists. Two features that frequently arise are the merit of the proposed appeal and the prospect that a substantial part of the non-parole period will be served before the appeal is determined. The applicant argued that a further relevant consideration was whether any custodial sentence should have been imposed at all, and that if the appeal succeeded in reducing the sentence below two years, intensive correction orders could have been available as an alternative. His Honour accepted the cumulative force of these factors was sufficient. The Court found the combination of a reasonably arguable severity appeal, the risk that a substantial portion of the non-parole period would be served prior to appeal determination, and the absence of unacceptable risk collectively established special or exceptional circumstances.

Unacceptable risk: The Court found no unacceptable risk that the applicant would fail to appear, endanger the community, interfere with witnesses, or otherwise engage in conduct triggering the s 19 concerns. Proposed bail conditions in Exhibit E, which included physical restraints designed to reduce the prospect of absconding, were accepted as adequate (subject to one additional condition imposed by the Court).

Additional condition and expedition: Noting the policy concerns articulated in DPP (Cth) v Cassaniti [2006] NSWSC 1103, including that granting bail pending appeal is a serious interference with the administration of criminal justice, Abadee DCJ required the applicant to prosecute her appeal with expedition. The Court preferred the Crown's formulation of this condition for its simplicity and consistency with existing authority.

Orders Made

  • The applicant is to be released on bail, subject to the conditions in Exhibit E, with the additional condition that she prosecute her appeal with expedition.
  • Condition 7 in Exhibit E was noted to be an enforcement condition within the meaning of s 30(3)(b) of the Bail Act 2013 (NSW).

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), an applicant seeking bail pending a conviction or sentence appeal must establish "special or exceptional circumstances" before the unacceptable risk test is even reached; the same evidence may, however, satisfy both requirements simultaneously.
  • A combination of factors, rather than any single decisive matter, can constitute "special or exceptional circumstances." The merit of the proposed appeal and the risk that a substantial part of the non-parole period will be served before the appeal is heard are two commonly significant factors.
  • Granting bail pending appeal engages serious policy concerns, including undermining the public interest in convicted persons serving sentences promptly and placing the appellate court in the position of potentially returning a person to custody whose circumstances have changed.
  • Where bail is granted despite those concerns, courts may impose an expedition condition requiring the applicant to prosecute the appeal without delay, consistent with the approach in Cassaniti and earlier authority.
  • The Court of Criminal Appeal's role as a court of error means that even a meritorious severity appeal carries the additional hurdle that the appellate court may find error but nonetheless conclude that no lesser sentence was warranted in law.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 22, 62
- Bail Act 1978 (NSW), s 30AA
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 3A, 5, 66
- Crimes Act 1900 (NSW), s 192E(1)(a)

Cases
- Director of Public Prosecutions (Cth ) v Cassaniti [2006] NSWSC 1103
- El Khouli v R [2019] NSWCCA 146
- El-Hilli and Melville v R [2015] NSWCCA 146
- Ex parte Maher [1986] 1 Qd R 303
- Narayan v R [2026] NSWCCA 94
- Obeid v R (2017) 96 NSWLR 155
- Obeid v R (No 2) [2016] NSWCCA 321
- Potier v R [2014] NSWCCA 177
- R v Colquhoun; R v Colquhoun [2026] NSWDC 284
- R v Colquhoun; R v Colquhoun; R v Colquhoun [2026] NSWDC 198
- R v Khayat (No 11) [2019] NSWSC 1320
- R v Khoo (2013) 97 ACSR 1; [2013] NSWSC 1518
- R v Richard [2011] NSWSC 866
- Stanley v DPP (2023) 278 CLR 1
- United Mexican States v Cabal (2001) 209 CLR 165
- WR v Director of Public Prosecutions (NSW) [2023] NSWCCA 38