Roach v R

1. [1]

   THE COURT: The applicant applied for a release order pursuant to the Bail Act 2013 (NSW). Because the applicant has been convicted on indictment and sentenced, and has appealed to this Court, his application was governed by s 22(1)(a) of the Bail Act. That section prohibits the grant of bail pending appeal unless it is established (by the applicant) that special or exceptional circumstances justify that bail decision.

2. [2]

   At the conclusion of the hearing, which took place on 8 March 2019, the Court was satisfied that no such special or exceptional circumstances had been established and made an order refusing the application with reasons to be given in due course. These are those reasons.

3. [3]

   The “special or exceptional circumstance” on which the applicant relies is what he contends to be his favourable prospects of success on his appeal. It was accepted by him that, where an applicant for a release order pending appeal relies exclusively on the strength of the appeal, it may be necessary to establish that the appeal is “most likely to succeed”: El-Hilli & Melville v R [2015] NSWCCA 146 at [26].

Background facts

1. [4]

   Between 7 August 2017 and 12 October 2017 the applicant was tried in the District Court on an indictment that contained nine counts. The first was a count of conspiracy to obtain a financial advantage by deception. That charge was brought under s 192E of the Crimes Act 1900 (NSW). The second and third counts were charges of making available information that was knowingly false or misleading in a material particular, contrary to ss 1309 and 1311 of the Corporations Act 2001 (Cth). The remaining counts, numbered four to nine, were also of offences against the Corporations Act, of engaging in conduct that resulted in the falsification of books (ss 1307 and 1311).

2. [5]

   The applicant entered pleas of not guilty to all counts and a jury trial proceeded in which he was represented by counsel.

3. [6]

   Pursuant to s 140 of the Criminal Procedure Act 1986 (NSW), on 28 July 2017, counsel for the parties took part in a conference with a view to reaching agreement on evidentiary matters. The result of the conference was that the applicant agreed (through his counsel) to the tender of a considerable volume of documentary material, and agreed to notify the Crown of any objections he proposed to take to the evidence of the Crown’s proposed witnesses.

4. [7]

   At the commencement of the trial, the Crown Prosecutor tendered the agreed bundle of documents. The bundle was used by the Crown Prosecutor in opening and throughout the trial.

5. [8]

   On 12 October 2017 the jury returned verdicts of guilty on all counts. On 24 November 2017 the trial judge, Yehia SC DCJ, sentenced the applicant to an effective total term of imprisonment for 4 years and 3 months, with a non-parole period of 2 years and 3 months. The non-parole period will expire on 23 February 2020.

6. [9]

   On 31 October 2018 the applicant filed a notice of appeal against the conviction, and sought leave to appeal against that sentence. On 30 November 2018 he filed amended grounds of appeal. Various specific grounds going to the appeal against conviction are listed under three headings:

7. [10]

   The “competence of counsel ground” is particularised only in the following way:

8. [11]

   The appeal is fixed for hearing on 23 April 2019.

The release application

1. [12]

   At the hearing of the release application the applicant was represented by senior and junior counsel. Counsel for the applicant acknowledged that Mr Roach’s application for release depended exclusively on the asserted strength of the appeal grounds. In those circumstances, the Court was required to assess the merits of the grounds pleaded in order to determine whether the appeal is “most likely to succeed” (or otherwise): El-Hilli & Melville v R [2015] NSWCCA 146 at [26]. Senior counsel urged the Court to refrain from expressing explicitly any views to which it might come as to the merits of the grounds of appeal.

2. [13]

   There is sense in adopting this course. In Obeid v R (No 2) [2016] NSWCCA 321 this Court considered it inappropriate to say much in detail about an applicant’s prospects of success in determining a bail release application pending the hearing of such an appeal. That is because in such an application the arguments can never be as fully developed as they might be – or, we would add, will be – on the hearing of the appeal. The most the court can do is to reach “only a broad overall view” of an applicant’s apparent prospects of success: Obeid at [17].

3. [14]

   We, accordingly, accede to the applicant’s proposal, and refrain from expressing detailed views on the merits of the appeal. That does not mean that we have not considered the arguments that were presented, both orally and in writing.

4. [15]

   Those arguments, like the grounds, ranged far and wide. For example, it was urged that the formulation of the first count on the indictment of conspiracy was “duplicitous”. We were not persuaded of the strength of this ground.

5. [16]

   There were also complaints concerning the joinder, in a single indictment, of State and Commonwealth offences, and the joinder of substantive offences to a conspiracy count. These arguments were unpersuasive.

6. [17]

   A good deal of argument was addressed to “the course of the trial grounds”, most of which appeared to anticipate the later “competence of counsel ground”; that is, it was acknowledged that, in general, the grounds related to issues that had not been raised by trial counsel, and to which, therefore, Rule 4 of the Criminal Appeal Rules applied. Argument was also directed to the length of the trial, including the extensive cross-examination of the applicant. Again, it is sufficient to say that this Court did not find these arguments persuasive.

7. [18]

   In the result, the Court was not satisfied that any of the grounds, or groups of grounds, pleaded reached the level of being “most likely to succeed”. That being so, the necessary special or exceptional circumstances were not established and it was unnecessary to direct attention to the matters raised by ss 17 and 18 of the Bail Act, nor to other potentially relevant considerations (such as the proportion of the sentence likely to have been served before the appeal is heard and determined, or whether the sentence for the non-parole period is likely to expire before those events), which sometimes arise in applications such as this.