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:- 4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal. 1. The Crown submits that the Bench Book is a general guideline on directions only, and a judge may modify add or change a direction subject to discussions with counsel during the trial. These propositions are uncontroversial. He further submits that the correct direction was given to the jury having regard to the legislation and the guidance in the Bench Book. The Crown submits that the direction as a whole must be looked at, to properly interpret what direction is required to be given by a Judge. I note here that Mr McHugh SC says that the statutory definitions of recklessness and dishonesty do not support the Crown's contention. 2. Mr. Kimbell says that the deception can be proved intentionally or recklessly. As to the dishonesty, he says that if the offender's submissions are correct, how could a conviction ever be founded if the deception was reckless only, and the Crown then had to prove actual knowledge of dishonesty where the deception was reckless? He submits that there has been no error involving the mental element of the offence, that the correct direction was given and it follows that there has been no miscarriage of justice. 3. As to rule 4, the Crown says that in determining whether or not there has been a miscarriage of justice, the court is entitled to take into account the failure of counsel below to make the application as being indicative of the fact that it was not considered, in the atmosphere of the trial, to have been important. Thus, he submits, it is indicative that there has been no miscarriage of justice. He further notes that no submissions were put regarding the reason for the failure of counsel below to make the necessary application, and there is no ground of appeal alleging incompetence on the part of trial counsel. It should be presumed, he says, that the decision of the trial counsel not to raise the point was taken for sound forensic reasons, there having been no good reasons advanced on this application to the contrary. Against this, Mr McHugh says that it was a patent error on the part of counsel for the offender, as the bar to conviction was set lower by the addition of the concept of recklessness. 4. I am required to assess any bail concerns before making a bail decision: section 17(1) of the Bail Act. A bail concern is defined in section 17(2) as a concern that if the person is released on bail they will (a) fail to appear; (b) commit a serious offence; (c) endanger the safety of victims, individuals or the community; or (d) interfere with witnesses or evidence. It is not in dispute that there are no bail concerns within the meaning of section 17. Section 18 provides an exhaustive list of matters that must be considered in the assessment of bail concerns, and relevantly section 18(1)(j) which provides "if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success". 5. Section 19 provides that a bail authority must refuse bail if it is concluded that there is an unacceptable risk in respect of any of the matters that are a bail concern. Otherwise, section 20 provides that subject to section 22, the bail authority must grant bail, release the person without bail or dispense with bail. 6. Section 22 relevantly provides:- 1. Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision: 1. an offence for which an appeal is pending in the Court of Criminal Appeal against: 1. A conviction on indictment… 1. As I have said, it is agreed between the parties that the demanding test for establishing special or exceptional circumstances under section 22 on appeal grounds alone or with a combination of other factors, is whether the appeal is "most likely to succeed": see Obeid v R (No 2) NSWCCA 321, Petroulias v R [2010] NSWCCA 95 and El-Hilli and Melville v R [2015] NSWCCA 146. 2. In my opinion, taking into account the argument advanced by the Crown that the direction was correct, and to a lesser extent that the offender has failed to explain why the direction was not objected to at trial, I am not satisfied that there are special or exceptional circumstances such that the appeal is "most likely to succeed". In my opinion, the Crown's position appears to be arguable. Whilst the offender's appeal "may be likely to succeed", in my view it does not meet the demanding test agreed to by the parties. I therefore decline the offender's application. 3. In coming to this conclusion, I acknowledge that arguments by both the offender and the Crown are not yet fully developed. I propose to publish these brief reasons without delay. As I said during argument this morning, upon request of the parties' solicitors I will attempt to expedite the procurement of the transcript of my summing up to the jury. ********** Amendments 20 December 2019 - Formatting changes 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: 20 December 2019