New South Wales Court of Criminal Appeal CITATION : REGINA v. MACLEOD [2002] NSWCCA 226 FILE NUMBER(S) : CCA No. 60131 of 1999 HEARING DATE(S) : Friday 7 June 2002 JUDGMENT DATE : 7 June 2002 PARTIES : REGINA v. MACLEOD, Robert James JUDGMENT OF : O'Keefe J at 9; Greg James J at 1; Carruthers AJ at 10 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0063 LOWER COURT JUDICIAL Rummery, DCJ. OFFICER : COUNSEL : Crown: M. Cinque App: J.C. Papayanni SOLICITORS : Crown: Commonwealth DPP App: Jeffreys & Associates CATCHWORDS : Bail pending appeal to High Court - special leave to appeal already granted - substantial portion of custodial component of sentence likely to be served before appeal decided - combination of that factor and others constituting special and exceptional circumstances - bail granted. LEGISLATION CITED : Companies (NSW) Code Crimes (Sentencing Procedure) Act 1999 Roffell (1985) VR 511 CASES CITED: Morrotta (1999) 73 ALJR 265 MFA [2002] NSWCCA 49 DECISION : Bail granted. IN THE COURT OF CRIMINAL APPEAL No. 60131 of 1999 O'KEEFE, J. GREG JAMES, J. CARRUTHERS, AJ. FRIDAY 7 JUNE 2002 REGINA v. ROBERT MACLEOD Judgment 1 GREG JAMES, J: This is an application for bail pending the hearing of an appeal from this court to the High Court of Australia against the applicant's conviction for various offences. The offences for which the applicant was convicted included his knowing concern in four offences of offer a prescribed interest to the public without authority contrary to s.169 and s.570(1) of the Companies (NSW) Code, four offences of offering a prescribed right for purchase or subscription while not a public company, two offences of offering prescribed interests for subscription or purchase without a registered prospectus, one offence of carrying on a business of dealing in securities without holding dealer's licence nor being exempt, two counts of carrying on a securities business without holding a dealer's licence without being exempt. He was further convicted of five offences of fraudulently applying the property of a company for his own use of which three were as a director of the company and two were as an officer of the company. 2 The indictment had contained a further seven counts which were in the alternative to certain of the counts to which I have referred. I note the offender was also found not guilty of two counts. 3 The trial judge sentenced the prisoner on 4 February 2000 to sentences to commence on the date on which the prisoner went into custody. He was taken into custody in the United States having fled there after a judgment in the Federal Court in 1993. The sentences imposed were such that the custodial portion of them is due to expire on 29 July 2002. There is in addition an 18 month parole period. That is due to expire on 29 February 2004. Special leave has been granted on three grounds by the High Court of Australia and the appeal can only be heard some time later in this year, it appears toward the end of the year. 4 The effect of the appeal, if successful, is such that the applicant's major sentence, and in particular the sentence on count 18, which supports the bulk of the custodial portions of the sentences passed upon him would be quashed. That would require the specification of a new commencement date for such other sentences as remain which may be dealt with under s.59 of the Crimes (Sentencing Procedure) Act 1999 but which would in effect be a sentence which would either wholly have expired or have expired but for a small portion of the parole period. In the event that the applicant is a successful party on the appeal in that a new trial were gained, it would seem likely that such new trial could not be held until a time when almost the entirety, if not the entirety, of the sentences had been served. 5 The applicant was in custody prior to trial but now he is in a situation in which he is, according to the affidavit material filed before us, being the affidavit of Mr. Paul Bennett of 6 June 2002, able to obtain Mr. Bennett as his surety and is able to obtain accommodation through an agency of the Anglican Church. 6 The submissions of the Crown disclose that the relevant issues expected to be dealt with on the appeal include whether this Court has fallen into error in disapproving the application to the case of the applicant, of the decision in the Queen v. Roffell (1985) VR 511 concerning the application of the property of a one-man company to the purposes of the director, and as to whether or not the much disputed legal discussions of dishonesty as an element of a criminal offence should in this case be elucidated. These are plainly matters which are of some considerable substance and in this the High Court has so considered them when it granted special leave. 7 In my view in these circumstances the requirement of the Bail Act 1978 that there be special and exceptional circumstances shown before appeal bail may be granted can be regarded as met. There is no individual circumstance which, however, would itself amount to special or exceptional circumstances. I reach this view after applying the views enunciated by Callinan, J. in Regina v. Morotta (1999) 73 ALJR 265 and in particular the thirteenth matter adverted to by Callinan, J. at 267 and those of the New South Wales Court of Criminal Appeal in Regina v. MFA [2002] NSWCCA 49. 8 In my view there should be a grant of bail. The applicant is to reside at 130 O'Connell Street, North Parramatta, or such other address as is notified in advance to the Director of Public Prosecutions, to surrender any passport that may come into his possession and not to seek to obtain any other passport or travel documents, to be of good behaviour, to report to the officer in charge of police at the Parramatta police station between 7.00 am and 8.00 pm, to prosecute the appeal in the High Court with due diligence to abide the judgment of the High Court, to he surrender himself to the Sheriff of the Supreme Court of New South Wales for the purpose of complying with such order as the High Court may make. Any breach of the bail conditions should automatically cause bail to be revoked, in which case the applicant may be arrested by any police officer. The bail may be entered before the Sheriff, the proper officer of the Court of Criminal Appeal or any magistrate and there is to be one acceptable person required to enter into an agreement in the sum of $5,000, that the applicant abide by the terms and conditions of his bail. The applicant will not be released unless he holds no current passport. It is noted that he holds no current passport. 9 O'KEEFE, J: I agree. 10 CARRUTHERS, AJ: I agree. 11 O'KEEFE, J: The orders will be as proposed by Justice Greg James. ********** 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.