R v Bazouni (Release Application) [2019] NSWDC 757

District Court New South Wales

Medium Neutral Citation: R v Bazouni (Release Application) [2019] NSWDC 757 Hearing dates: 12 December 2019, 17 December 2019 Date of orders: 17 December 2019 Decision date: 17 December 2019 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: Application for release on bail Catchwords: CRIMINAL LAW – Bail application after offender detained BAIL – special or exceptional circumstances - where appeal is most likely to succeed Legislation Cited: Bail Act 2013 NSW Crimes Act 1900 NSW Criminal Appeal Rules No 2 Cases Cited: El-Hilli and Melville v R [2015] NSWCCA 146 Maitland v R; Macdonald v R [2019] NSWCCA 32 Obeid v R (No 2) NSWCCA 321 Petroulias v R [2010] NSWCCA 95 Category: Principal judgment Parties: Regina (Crown) Mr John Bazouni (Offender) Representation: Counsel: Mr R A Kimbell (Crown)

Mr M McHugh SC (Offender) Mr M Gleeson (Offender)

Solicitors: Ms J. Menzies (Crown) Ms A. Sarmed (Offender) File Number(s): 2015/00068058 Publication restriction: Nil

Judgment 1. On 1 November 2019, the offender was found guilty by a jury of five counts of dishonestly obtaining a financial benefit by deception contrary to section 192E(1)(b) of the Crimes Act 1900 and one count of attempting to dishonestly obtain a financial benefit by deception contrary to sections 192E(1)(b)/344A(1) of the Crimes Act 1900. On that date I convicted him, and stood the matter over for sentence. 2. On 12 December 2019, the matter came before me on sentence. On that date the offender's senior counsel Mr McHugh made an application for his release on bail. 3. The offender seeks release pending appeal in respect of his conviction. He does so on the basis that his appeal is "most likely to succeed" (see below). A Notice of Intention to Appeal was lodged at the Supreme Court on 11 December 2019. It has since been amended and is exhibit 2 on this application. The proposed appeal grounds are as follows:- 1. The guilty verdicts were unreasonable or could not be supported having regard to the evidence; and 2. His Honour erred by directing the jury, on an element of the offence, that they could be satisfied that the alleged dishonesty could be proved by mere recklessness. 1. The emphasis on the release application is on ground (b) noted above. 2. The offender submits that the trial judge, after having discussed with counsel the written directions to be given to the jury (and which became MFI 16 at trial), gave those directions accordingly. It is the case that the written directions were extensively discussed with both counsel over weeks, and that the written directions were provided to them well in advance of summing up for their comment. It is also the case that no objection was taken by either counsel to MFI 16. 3. The offender points to the suggested direction in the New South Wales Judicial Commission Bench Book, and in particular:- You must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving [the victim] but also that [he/she] knew that [his/her] conduct was dishonest according to the standards of ordinary people. 1. MFI 16, which is exhibit 1 on this application stated:- The jury must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving the bank but also that he knew or was reckless that his conduct was dishonest according to the standards of ordinary people. 1. In short, Mr. McHugh says that the addition of the words "or was reckless" is an error, and he noted that it was repeated later in the written direction. Recklessness, he says, applies to deception rather than to dishonesty. Further it is an error involving the mental element of the offence, and it follows that there has been a miscarriage of justice. Here, he says, the jurors may well have reasoned that they could convict on the basis that the offender was reckless as to dishonesty. He further says that the proviso has no work to do in these circumstances, as the jury was not properly directed about the mental element of the offence: Maitland v R; Macdonald v R [2019] NSWCCA 32 (although in that case, unlike the present, the trial judge's misdirection was raised at trial by then counsel for both appellants). It follows, Mr McHugh says, that special or exceptional circumstances have been made out pursuant to section 22 of the Bail Act 2013, as the appeal is "most likely to succeed". The Crown does not dispute that this is the appropriate test on such an application. 2. As to rule 4 of the Criminal Appeal Rules, Mr McHugh says that as the error was made by all, the reason for not taking the point is plain. Rule 4 provides as follows:-