Carnaby v The Queen - [2021] NSWCCA 203

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carnaby v R [2021] NSWCCA 203
Hearing dates: 23 August 2021
Date of orders: 23 August 2021
Decision date: 27 August 2021
Before: Payne JA; Garling J; Wright J
Decision:
(1) The release application is dismissed.
(2) Bail is refused.

Catchwords:
BAIL – release application – applicant currently serving sentence following conviction for offences – application for release pending determination of appeal against convictions – special and exceptional circumstances test – no special and exceptional circumstances demonstrated – release application dismissed

Legislation Cited:
Bail Act 2013 (NSW), ss 5, 17, 18, 19, 22, 48, 59, 61
Crimes Act 1900 (NSW), ss 192E, 351A

Cases Cited:
El-Hilli and Melville v R [2015] NSWCCA 146
Obeid v R (No 2) [2016] NSWCCA 321
R v Williams [2018] NSWSC 994

Category: Principal judgment
Parties: Raymond Carnaby (Applicant)
Regina (Respondent)
Representation:
Counsel:
In person (Applicant)
CO Gleeson (Respondent)
Solicitors:
In person (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/134753
Publication restriction: Nil

Judgment

THE COURT: On 6 May 2021 the applicant, Raymond Carnaby, filed an application for release on bail pending the determination of his appeal against conviction. The appeal is listed to be heard in this Court on 3 November 2021.
The application for release on bail was heard in this Court on 23 August 2021. At the conclusion of the hearing, the Court dismissed the release application and ordered that the applicant be refused bail. Reasons were reserved. These are our reasons for making those orders.

Background

On 24 October 2019, following a trial before O’Rourke SC DCJ and a jury, the applicant was convicted of 15 counts of “dishonestly obtain financial advantage by deception” contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), and four counts of “recruit person to engage in criminal activity” contrary to s 351A(1) of the Crimes Act 1900 (NSW). The charges relate to conduct between early 2013 and early 2016, during which the applicant caused a number of third parties to lodge false documentation with finance companies to secure the purchase of luxury vehicles. The total value of the fraudulently procured loans was $2.56 million. The total loss suffered by the finance companies was $2.29 million. After the jury returned verdicts of guilty on these 19 counts but prior to sentencing, the applicant was released on bail.
On 22 May 2020, the applicant was sentenced and taken into custody. O’Rourke SC DCJ sentenced the applicant to an aggregate sentence of imprisonment of 9 years, expiring on 21 May 2029. Her Honour imposed a non-parole period of 5 years 5 months, expiring on 21 October 2025.
On 6 April 2021, the applicant filed a notice of appeal against conviction on all counts. The appeal is set down for hearing on 3 November 2021. On 6 May 2021, the applicant filed the present application for release on bail pending the determination of his appeal. The applicant is self-represented, having withdrawn his…

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 Carnaby v The Queen

Details

AGLC: Carnaby v The Queen [2021] NSWCCA 203
Case: [2021] NSWCCA 203
Decision Date: 27 August 2021

CaseChat Overview and Summary

The case involved an applicant, Carnaby, who was serving a sentence following a conviction for certain offences. Carnaby applied for release pending the determination of an appeal against the conviction. The matter was heard by the court which had to decide whether special and exceptional circumstances existed that warranted the applicant’s release. The court needed to assess whether Carnaby had demonstrated such circumstances to warrant a departure from the general rule that an applicant remains in custody pending the outcome of an appeal.

In evaluating the application, the court considered the nature and seriousness of the offences, the circumstances of the case, and the prospects of appeal. The court was required to determine whether the appeal had a reasonable prospect of success and whether Carnaby had shown that there were special or exceptional circumstances that warranted his release. The court noted that the applicant had not demonstrated any special or exceptional circumstances that would justify his release, and the general rule that an applicant remains in custody pending the outcome of an appeal applied.

The court concluded that Carnaby had not met the threshold for demonstrating special or exceptional circumstances. The appeal did not have a reasonable prospect of success, and there were no other factors that warranted the applicant's release. Therefore, the court dismissed the application for release, upholding the principle that an applicant remains in custody pending the determination of an appeal unless there are compelling reasons to the contrary.

The court did not grant Carnaby's application for release. The applicant remains in custody pending the outcome of the appeal against his conviction.

Orders