Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Obeid (Edward) v Director of Public Prosecutions [2022] NSWCCA 269 Hearing dates: 29 November 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Before: Basten AJA; Garling J; R A Hulme AJ Decision: Refuse the application for release on bail pending the hearing of the appeal against conviction Catchwords: BAIL – release application – application for leave to appeal from conviction pending – special or exceptional circumstances test – strength of grounds of appeal – proportion of non-parole period likely to be served before appeal determined – availability of medical services Legislation Cited: Bail Act 2013 (NSW), s 74 Evidence Act 1995 (NSW), s 87 Cases Cited: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858 Category: Procedural rulings Parties: Edward Moses Obeid (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel: S Odgers SC (Applicant) E Nicholson (Respondent) Solicitors: Michael Bowe Solicitors (Applicant) C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2022/00345126001 Publication restriction: N/A JUDGMENT 1. THE COURT: On 21 October 2021 the applicant, Edward Obeid, was sentenced by Fullerton J to a term of imprisonment for conspiracy to commit wilful misconduct in public office. The sentence involved a term of imprisonment of 7 years, with a non-parole period of 3 years and 10 months, to date from 21 October 2021. The applicant will be eligible for release on parole on 20 August 2025. On 1 September 2022, the applicant filed a notice of appeal against conviction, but not against sentence. Pursuant to an application filed by his solicitor on 15 November 2022, he has sought release on bail pending the determination of his appeal by this Court. 2. This application was dealt with concurrently with an application made on behalf Moses Obeid, who was convicted of the same offence as his father, Edward Obeid, and has also appealed against his conviction. Subject to one additional matter relating to the applicant's health, senior counsel for the applicant relied upon the submissions made on behalf of Moses Obeid in support of the applicant's application. 3. The constraints governing applications for release on bail pending determination of an appeal have been addressed in the accompanying judgment in relation to the release application by Moses Obeid. They need not be repeated here. However, it should be noted that, while the limited exclusion of repeat applications under s 74 of the Bail Act 2013 (NSW) does not apply because this is the first application made to this Court, the applicant has in fact made two prior unsuccessful applications. The first was made to the trial judge immediately following the sentencing judgment; the second was made to Wilson J, who accepted that there had been a change in circumstances following the provision of draft grounds of appeal. 4. In so far as the applicant relies upon submissions made in support of the application for bail by Moses Obeid, to be dismissed concurrently with this judgment, those matters do not warrant an order for the release of Edward Obeid. As to matters particular to his appeal against conviction, counsel noted that the trial judge had observed that evidence of the applicant's overt conduct supporting his participation in the conspiracy was more limited than that relating to the other accused. [1] The judge relied in part upon the operation of the inclusionary rule in s 87(1)(c) of the Evidence Act 1995 (NSW) to support a finding that the applicant was involved in the conspiracy. The judge concluded that there was no reasonable or rational possibility that the conspiracy "would have been forged between Moses Obeid and Mr Macdonald, and progressively executed by each of them … without Edward Obeid's intentional participation with them in an agreement of the scope and object alleged". [2] Acknowledging that the involvement of the applicant in the conspiracy included reasoning which differed from that relied on with respect to Moses Obeid and Mr Macdonald, and noting that the applicant's grounds of appeal expressly challenged the judge's reliance on s 87(1)(c) of the Evidence Act (ground 6), nevertheless no different outcome is warranted with respect to the applicant's bail application on that basis. 5. An additional matter, as to which evidence was adduced on behalf of the applicant, related to his health. His treating ophthalmologist had expressed the opinion that he requires monthly injections, which are, it appears, to be performed in a clinical setting not available in the correctional centre in which he is presently held. The evidence suggested that no such treatment had been provided since May 2022. 6. The belated filing of this medical material led to a number of exchanges in a few days between the solicitor for the applicant and the Office of the Director of Public Prosecutions. Further evidence suggested that a second appointment had been booked for 7 June 2022 but had been cancelled by the applicant as he did not want to attend in handcuffs. There was a delay in rebooking the appointment as clarification regarding security arrangements was sought. A third appointment, booked for 15 November 2022, was cancelled by Corrective Services because a lack of staff prevented transport to the appointment. A further booking has been made for this month. 7. At the hearing, senior counsel for Mr Obeid did not press this matter as alone sufficient to justify release on bail. So much should be accepted. However, it may also be observed that, whilst custodial arrangements appear to have interfered with regular treatment, more detailed medical evidence, together with a clearer picture that adequate medical treatment could not be provided in a custodial setting, should have been adduced to justify release on bail based on such circumstances. Prisoners serving sentences, whether awaiting an appeal or not, are entitled to proper health services; release on bail is not generally the appropriate means of ensuring compliance with the State's obligations in that regard. 8. Accordingly, the release application is refused. ********** Endnotes 1. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858 at [2000]. 2. R v Macdonald at [2018]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022