Bazouni v The Queen - [2019] NSWSC 1884

Supreme Court

New South Wales

Medium Neutral Citation: Bazouni v R [2019] NSWSC 1884
Hearing dates: 18 and 19 December 201
Date of orders: 19 December 2019
Decision date: 19 December 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
Bail refused.

Catchwords: CRIMINAL LAW – Bail pending appeal to the Court of criminal Appeal– whether special and exceptional circumstances shown – whether appeal most likely to succeed – definition of “dishonest” under s4B Crimes Act 1900 (NSW) – where direction to the jury that dishonesty could be proven by mere recklessness
Legislation Cited: Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Obeid v R (No 2) [2016] NSWCCA 321
Kalabasi v Western Australia (2018) HCA 7
Peters v The Queen (1998) 192 CLR 493
R v Love (1989) 17 NSWLR 608
R V Brow [1981] VR 783
R v Bonollo [1981] VR 633
R v Khoo [2013] NSWSC 1518
R v Salvo [1980] VR 401
R v Smith (1983) 7 A Crim R 437
Category: Principal judgment
Parties: John Bazouni (applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
M G McHugh SC (Applicant)
R Kimbell (Respondent)
Solicitors:
Kingston Fox Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2019/397899
Publication restriction: No

Judgment

The applicant for bail was tried before Weinstein DCJ and a jury of twelve on five counts of obtaining financial advantage by deception contrary to s192E (1)(b) of the Crimes Act 1900 (NSW) and one count of attempting to commit an offence against that section. There were alternatives to some of the counts but they may be disregarded for present purposes.
The trial occupied approximately four weeks. On 1 November 2019 the jury returned verdicts of guilty on all six of the counts referred to above. The applicant had been on bail since March 2015 and had complied with the conditions of his liberty and had attended court as directed. The Crown made a detention application upon the return of the verdicts, which was upheld. The applicant was remanded to appear before the trial judge on 12 December 2019 for sentence.
The applicant briefed his present Senior Counsel after conviction, to appear in the sentence proceedings. Senior Counsel formed the view that an error had been made in the summing-up and, on his advice, notice of intention to appeal against conviction was filed on 11 December 2019. The proposed grounds are:

(a) The guilty verdicts were unreasonable or could not be supported having regard to the evidence.
(b) 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.

At the sentence hearing on 12 December 2019 the applicant applied to the trial judge under s 62 of the Bail Act 2013 (NSW) for bail pending his appeal. This was refused. Hence, the present application has been brought in this Court for bail pending the determination of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bazouni v The Queen

Details

AGLC: Bazouni v The Queen [2019] NSWSC 1884
Case: [2019] NSWSC 1884
Decision Date: 19 December 2019

CaseChat Overview and Summary

In Bazouni v The Queen, the applicant sought bail pending appeal to the Court of Criminal Appeal against his conviction and sentence for multiple counts of obtaining financial benefit by deception. The applicant had been found guilty of dishonestly obtaining financial benefits from various individuals through fraudulent means. The High Court of Australia was tasked with determining whether the applicant had demonstrated special and exceptional circumstances that warranted the grant of bail pending appeal, and whether the appeal was likely to succeed.

The central legal issues before the court included whether the applicant had shown special and exceptional circumstances to justify the grant of bail pending appeal, and whether the appeal was likely to succeed on the grounds of alleged errors in the trial judge’s directions to the jury regarding the definition of “dishonest” under section 4B of the Crimes Act 1900 (NSW). Additionally, the court considered whether the trial judge’s direction that dishonesty could be proven by mere recklessness was an error that might lead to the applicant’s conviction being quashed.

The court held that the applicant had not demonstrated special and exceptional circumstances to warrant the grant of bail pending appeal. In relation to the appeal’s likely success, the court found that while there were some arguable grounds, they were not strong enough to satisfy the standard required for the grant of bail pending appeal. The court concluded that the trial judge’s direction to the jury regarding the definition of “dishonest” was not a misdirection that could be considered an error of law. The court determined that the applicant's actions were indeed dishonest as they involved a significant degree of deception and misrepresentation. Consequently, the application for bail pending appeal was dismissed.

Orders