El-Hilli v The Queen; Melville v The Queen

[2015] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

El-Hilli v R; Melville v R [2015] NSWCCA 289

Hearing dates:

14 September 2015

Decision date:

23 November 2015

Before:

Basten JA at [1];
Hall J at [112];
Wilson J at [113]

Decision:

With respect to Issam El-Hilli:

 

(1)   Grant Issam El-Hilli leave to challenge his convictions on grounds (2) and (3) as identified in his “final submissions” dated 6 July 2015, but otherwise refuse leave to appeal.

 

(2)   Dismiss the appeal, limited to those grounds.

 

(3)   Refuse Issam El-Hilli leave to appeal against the sentences imposed on 16 December 2014.

 

With respect to Jenny Samantha Melville:

 

(1)   Grant leave to appeal against conviction on grounds (3) and (5) as set out in her final submissions, but otherwise refuse leave to appeal.

 

(2)   Dismiss the appeal, limited to those grounds.

 

(3)   Grant leave to appeal against the sentences imposed on 16 December 2014.

 (4)   Subject to any further order of the Court, dismiss the appeal against the sentences, with effect from 15 March 2016.

Catchwords:

CRIMINAL LAW – conviction appeal – judge only trial – whether trial judge failed to inform self-represented accused about right to seek adjournment to arrange for legal representation – no omission established – no question of principle raised

 

CRIMINAL LAW – sentence appeal – whether sentencing judge erred in not backdating sentence in consideration of prior lengthy period of conditional liberty – whether impact of full term imprisonment on the female offender did not properly considered the impact on her child – whether circumstances were exceptional

 

EVIDENCE – incomplete copies of contracts admitted into evidence – whether inference as to the content of missing pages properly made – whether miscarriage of justice – no question of principle raised

  EVIDENCE – tendency and coincidence evidence – evidence of previous convictions – whether used for tendency or coincidence reasoning – whether ruling on the admission of such evidence in the final judgment prejudiced the accused

Legislation Cited:

Crimes Act 1900 (NSW), s 178BA
Crimes Act 1914 (Cth), s 16A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 50
Criminal Appeal Act 1912 (NSW), ss 5, 5F
Criminal Procedure Act 1986 (NSW), ss 137, 142
Evidence Act 1995 (NSW), ss 55, 56, 57, 95, 97, 98, 101, 137

Cases Cited:

Dietrich v The Queen (1992) 177 CLR 292
Dipangkear v Regina [2010] NSWCCA 156
Elomar v R [2014] NSWCCA 303
Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18
R v Adamson [2005] NSWCCA 7
R v Edwards (1996) 90 A Crim R 510
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCA 154
R v Steffan (1993) 30 NSWLR 633
R v Togias [2001] NSWCCA 522; 127 A Crim R 23
White v Johnston [2015] NSWCA 18
The Queen v Wirth (1976) 14 SASR 291

Category:

Principal judgment

Parties:

Issam El-Hilli (Applicant)
Jenny Samantha Melville (Applicant)
Regina (Respondent)

Representation:

Counsel:
Applicant El-Hilli self-represented
Applicant Melville self-represented
Mr E Baldois (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2012/346884; 2012/366215

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 December 2014

Before:

North DCJ

File Number(s):

2012/346884; 2012/366215

Judgment

1. BASTEN JA: The applicants, Issam El-Hilli and Jenny Samantha Melville, were convicted in the District Court on two counts of obtaining a financial advantage through deception, under s 178BA(1) of the Crimes Act 1900 (NSW). The trial was conducted before North DCJ, sitting without a jury. The applicants appeared for themselves, both at trial and in this Court. Indeed, in this Court Mr El-Hilli filed written submissions, but did not appear at the hearing, being content to adopt the arguments put by Ms Melville.

2. The trial commenced on 20 May 2014 and concluded with a judgment delivered on 15 July 2014. Each accused was found guilty on each count on the indictment. The proceedings were stood over for sentencing. On 16 December 2014, each was convicted and sentenced: Ms Melville was sentenced to an effective term of two years three months imprisonment, with a non-parole period of one year three months. Mr El-Hilli was sentenced to an effective term of five years, with a non-parole period of four years two months. Ms Melville is entitled to be released on parole on 15 March 2016; Mr El-Hilli becomes eligible for release on parole on 15 February 2017.

3. The applicants seek leave to appeal against their convictions and sentences. (The grounds of appeal against conviction, not raising questions of law alone, require leave. [1] )

   1. Criminal Appeal Act 1912 (NSW), s 5(1).

Background

4. The charges arose out of two separate courses of conduct following a similar pattern. All of the activity took place between 1 August 2008 and 8 November 2008. In broad terms, Mr El-Hilli held himself out as having access to significant sums of capital from a wealthy sheikh, which could be made available to business people in financial stress, who were presumably without access to funds from conventional lenders. Ms Melville was the agent who negotiated proposed loan transactions between Mr El-Hilli and the borrowers. She was paid a fee to secure and guarantee the loans, the fees being paid in advance. Once the fees were paid the applicants left the country. The loan funds were not provided, nor were the fees repaid.

5. The first count related to Craig Kenway, a Queensland businessman who had substantial debts. The proposed loan was for an amount of €18.5 million. The loan was subject to the payment of a 2% fee ($800,000) to Ms Melville. Through a financial consultant, Clinton Sarina, engaged by Ms Melville, the borrower was able to obtain a loan from another lender, Community Life Pty Ltd, in order to pay the 2% fee to Ms Melville. In fact, only half that amount was actually transferred to Ms Melville and deposited by her in a cheque account with the ANZ Bank.

6. The second arrangement was with Ms Maria Duncombe, who required finance for a development project. The agreed loan was in an amount of €55 million, the proposed fee being $2 million. That amount was reduced to $200,000 and, through the same intermediaries, the money was paid to Ms Melville and deposited in her cheque account. Melville and El-Hilli left Australia on 20 November 2008. The funds in Ms Melville’s account were dissipated.

The issues on appeal

7. It is convenient to refer first to the grounds relied on by Mr El-Hilli. All except ground (3) were common to the “final submissions” made on his behalf and dated 6 July 2015 and a similarly entitled document of the same date filed by Ms Melville. Mr El-Hilli’s grounds, not reproduced verbatim, but removing infelicities of expression, were as follows:

The trial judge erred –

(1)   in not informing the appellant of his right to apply for an adjournment or stay of proceedings until legal representation was obtained;

(2)   in failing to give a ruling prior to the commencement of the trial on the admissibility of tendency and coincidence evidence;

(3)   admitting (and relying upon) evidence of a prior conviction of the appellant in 2003 as coincidence evidence having significant probative value of his state of mind with respect to the present charges;

…

(5)   erroneously admitting incomplete copies of the contracts, not being original documents and missing important terms, and

(6)   errors of law and directions, constituting a miscarriage of justice.

The omitted ground (4) referred to “prosecutorial misconduct”. The submissions indicated that the prosecutor reversed the onus of proof, injected speculative inferences and invented hypothesised evidence. These submissions referred to questions asked of the applicants in the course of cross-examination. It was further submitted that during the course of the trial the applicants were ridiculed, belittled and their evidence treated with disdain by the prosecutor.

8. Ms Melville’s grounds included the five common grounds referred to above, which were grounds (1), (2), (6), (7) and (8) in her “final submissions”. [2] In ground (2), dealing with tendency and coincidence evidence, Ms Melville added a paragraph (a), which complained of the trial judge “not advising the Appellant effectively as to the mutated direction that ‘Tendency’ evidence could take resulting in a finding of co-offenders ‘state of mind’ assigning further unchallenged prejudice against the Appellant”. The written submissions in support of this ground did not greatly clarify its meaning. However, it may perhaps be understood as a complaint that the inferences drawn from Mr El-Hilli’s 2003 convictions, relating to his state of mind, caused prejudice to Ms Melville, who was not involved in the 2003 offending. (The same submissions were made in writing on behalf of Mr El-Hilli, although his grounds were not amended to include par (a); it appears to add nothing of substance to the ground with respect to his case.)

   2. Except where otherwise indicated, references below will be to the common grounds set out at [7].

9. Ms Melville relied upon three further grounds which are also difficult to follow, but were, with minor changes:

The trial judge erred in –

(3)   “not bequeathing a statutory ruling on separate trial application on behalf of the Appellant”;

(4)   “not giving due consideration to the Appellants trepidations of the prejudiced investigation against her lead by the Officer in Charge”, and

(5)   “morphed co-accused ‘state of mind’ and coincidence evidence to develop an unlawful inference giving eminence to a Joint Criminal Enterprise.”

10. Ms Melville’s ground (4) was not clarified in her written submissions and, as formulated by her, has no obvious content. It will not be addressed further. Separate grounds were identified by each in respect of their applications for leave to appeal against sentence, which will be dealt with separately below.

11. It will be necessary to deal with each of the grounds raised, having regard to the written submissions and the further oral submissions made by Ms Melville. (This Court accepted, with the express agreement of Mr El-Hilli, that submissions made by Ms Melville should be treated, where relevant, as supportive of his grounds of appeal, as well as hers.) Nevertheless, it is fair to say that the central issue (and perhaps the only allegation which was reasonably arguable) concerned the manner in which the judge dealt with Mr El-Hilli’s 2003 convictions, as tendency or coincidence evidence or as evidence of his “state of mind”. First, however, it is convenient to address the ground relating to legal representation.

Failure to advise as to right to representation (ground 1)

12. Ground (1) was apparently drafted with some care: it did not assert that the applicants had a right to a stay of proceedings until legal representation was obtained, but rather that they had a right to be advised by the trial judge of their entitlement to apply for an adjournment or a stay pending each obtaining legal representation. Formulated in this way, the ground eschewed, no doubt correctly,[3] asserting a right to representation, nor even a right to an adjournment to allow them a reasonable opportunity to seek representation (which may, in appropriate circumstances, have been tenable [4] ) but was limited to a right, as an unrepresented party, to be advised that such a course was open. The careful formulation of the ground may, even so, have missed a critical element, in that the failure to give the advice must, in order to provide a basis for setting aside a conviction, have resulted in a miscarriage of justice. [5]

    3. See Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh J), 323 (Brennan J), 330 (Deane J) and 349-350 (Dawson J).

    4.    Dietrich at 343 (Dawson J).

    5. See the explanation given in the dissenting reasons of Crennan and Kiefel JJ in Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18 at [150].

13. As the applicants’ submissions acknowledged, they had applied, unsuccessfully, for legal aid and had taken an appeal from its refusal (also unsuccessful) to the Legal Aid Review Committee. They had informed the District Court of those facts and requested that a trial date be fixed on the basis that they would be self-represented.

14. In accordance with current practice, questions of representation will be addressed at a pre-trial hearing (although things may change). It is not helpful to identify a “right” for an unrepresented accused to be advised that he or she may seek an adjournment to obtain representation. Where an accused appears unrepresented, it is common practice for the judge conducting the preliminary hearing to inquire as to the circumstances giving rise to that situation. That will usually involve a more nuanced inquiry than the proposed “advice”.

15. That occurred in the present case. The proceedings were mentioned before Huggett DCJ on four occasions before the trial commenced before North DCJ. On the first day, both accused stated that they wished to remain self-represented, but Ms Melville sought leave to appear both for herself and for Mr El-Hilli. Having ascertained that the trial was based on a joint criminal enterprise, the judge declined to let Ms Melville appear on behalf of both accused. Mr El-Hilli objected saying “I can’t represent myself” to which the judge replied, “Well, then you’ll need to get legal representation …”.

16. Noting that there was an issue as to representation, the judge then provided the accused with an adjournment to discuss how they wished to proceed. She identified as a further issue whether there was consent, based on legal advice, to the proposed judge-only trial. It is not necessary to set out the lengthy discussion which occurred in relation to these issues. However, the transcript records the judge saying to Mr El-Hilli: [6]

“If you wish to be represented and make an application for a period of time for that to occur then I will deal with that application if you wish to make that, but I will not give leave to Ms Melville to legally represent you in these proceedings.”

6.    Tcpt, 14/05/14, p 6(45).

17. After further discussion the following exchange took place: [7]

“HER HONOUR: … So, Mr El-Hilli, you either appear for yourself or I’ll give you a short time to obtain legal representation. How long – has this trial been listed before, Mr Crown?

CROWN PROSECUTOR: It has, your Honour. In August last year it was listed for trial and there was a Dietrich application. The trial was vacated pursuant to the indication that there was going to be an appeal against the refusal of Legal Aid. …

…

HER HONOUR: Surely, Mr El-Hilli – I mean I can explain to you as we go through the argument what the Crown is seeking to prove, what your grounds are to object. I can’t give you advice, I can’t make the decisions for you. But I have a responsibility to ensure that you can understand and follow the proceedings and that you are able to protect your interests and raise an objection where you should.

…

… So I will each allow yourselves to represent yourselves, I will allow you to adopt questions or submissions put on behalf of Ms Melville and to rely on her questions and submissions in your case. But she cannot act for you, she is your co-accused, she is not --

ACCUSED EL-HILLI: Okay, we’ll go that way.”

7.    Tcpt, pp 12-13.

18. These brief extracts demonstrate that the accused, the judge and the prosecutor were all fully apprised of the circumstances and the options available to both accused. They were expressly offered the opportunity to seek an adjournment to obtain legal representation if they wished. No doubt there were practical difficulties in the way of utilising that opportunity to good effect, but that is a separate question. In any event, the matter did not stop there. When the trial was later listed before North DCJ, he too inquired as to their representation and was advised that neither had a solicitor or barrister acting and that they had applied for legal aid and had been refused. [8] Shortly before an adjournment, the following exchange took place:

“ACCUSED MELVILLE: Prior just to your Honour's leaving, previously we had an application before Judge Huggett. I have been representing Mr El Hilli up until now. Judge Huggett refused that application. Mr El Hilli was on remand for 14 months. I applied for bail and I was successful in that bail application. We previously had representation. The representation we didn't feel covered ourselves in the respects that what we were providing to the solicitors, that information wasn't being provided to the Courts.

Up until now I have done a very good job, but we'd like to make a further application to your Honour that I would represent both of us in these proceedings.”

8.    Tcpt, 20/05/14, p 3.

19. Having identified the procedural history with respect to representation, the prosecutor said that the matter was one for the judge, but noted also how it had been dealt with by Huggett DCJ. The judge then asked Ms Melville, first, what she wished to say on the question of representation. [9] The question followed a discussion as to an issue to be raised with respect to tendency evidence relevant to the prosecution case against Mr El-Hilli. Ms Melville commenced:

“We understand the Crown's position in relation to the tendency argument, your Honour. Obviously that is a complex area of law that requires substantial understanding of certain elements of s 98, s 97, s 101 and particularly s 101(2), but more important is consideration of how that would affect a trial and interplay of that trial with a coaccused for allegations of fraud made in 2009. Obviously that is a substantial task for any barrister or lawyer to fight such a challenge, and to be self-represented would obviously be an additional challenge to that. We say in that argument that this has been a case that we've been working on for the last three years since notification has been provided or since our arrest in 2011.

We have worked on this case purely not because of a financial reasons, but purely for the fact that it has disrupted our family life and the fact that we obviously state that we are innocent of these charges. It is a very detailed case, as your Honour will find through the coming weeks, and I think to [sic] prejudicial Mr El Hilli to bring in a barrister at this stage as was discussed over the past coming days, would be detrimental because it would delay his proceedings in this trial. We know the case inside out, whether that's good or bad. He doesn't seem to think that it would be prejudicial to him in any way that I represent him. That would be of the Court's and of your Honour's decision as to whether I could represent, but we are strong in our standing that we have the ability to do it.”

9.    Tcpt, p 9(45).

20. In the end, the judge adopted the same position as Judge Huggett: he refused leave to Ms Melville to represent her co-accused, but noted that she could play the lead role and there was no need for Mr El-Hilli to cover the same ground in cross-examination of witnesses, nor to repeat any submissions she might make, if he were happy to accept them.

21. It is clear from this material that ground (1) is unarguable. Not only did Huggett DCJ expressly offer the accused an opportunity for an adjournment if they thought fit, but the question of representation was explored in detail on several days prior to the commencement of the trial, in a way which made it clear that no-one was in any doubt as to how the matter would proceed, nor as to the various options for proceeding in a different manner. Ground (1) must be rejected.

Tendency and coincidence evidence

(a)   the evidence

22. The admissibility and use of the tendency and coincidence evidence informed the three major grounds of appeal, being grounds (2), (3) and (4). It is convenient to commence consideration of these grounds by identifying the evidence relied upon by the prosecution and its purpose in so doing.

22. The prosecution sought to tender a statement of agreed facts concerning six charges under s 178BA of the Crimes Act committed between early 1999 and late 2000. Mr El-Hilli was committed for trial on six counts but, following negotiations, one count was withdrawn and three of the remaining five counts were dealt with on a Form 1, as matters to be taken into account in sentencing, following pleas of guilty in relation to the other two counts. Each offence involved an agreement by Mr El-Hilli to secure a loan of between $2 million and $10 million for the victims, based on assurances that the offender had access to substantial sums of Saudi Arabian money. In each case the loan was to be secured by an insurance policy with an agreed premium, ranging from $100,000 to $211,000. The premiums were paid to Mr El-Hilli, but no loans were forthcoming, nor were any insurance policies purchased. The moneys were diverted by the offender to his own purposes. At the time of that offending, Mr Issam El-Hilli called himself Sam Hill; the charges were brought against him in that name. The evidence relied upon by the prosecution in the present case included an agreed statement of facts and other material relevant to the guilty pleas, which resulted in Mr El-Hilli being convicted and sentenced in May 2003.

23. There were, in substance, two issues which arose in dealing with this evidence at trial. The substantive question was how the evidence could properly be used. It was variously described as tendency, coincidence or “state of mind” evidence. On the appeal, the Director submitted that the prosecutor at trial had effectively abandoned reliance on “tendency reasoning”. [10] The prosecution submission that it was “not really necessary to pursue tendency” was noted by the trial judge. [11] Rather, the prosecutor relied upon the circumstances giving rise to the 2003 convictions as “direct evidence as to the accused’s state of mind” stating that it was “relevant because it could rationally affect the probability that the accused [in 2008]: (a) had an intention to deceive; (b) lacked any genuine belief that there is in fact money to lend; (c) knew that his conduct was likely to be regarded as dishonest.” [12]

    10.    Tcpt, 09/07/14, p 1979(25).

    11.    Judgment, p 17.

    12.    Judgment, p 17.

24. Having so identified the prosecution case, the trial judge then warned himself that he should not rely upon guilt of other criminal acts as evidence that the accused was a person likely from his criminal conduct or character to have committed the offences charged. The judge also noted that the prosecution relied upon the earlier convictions as “coincidence evidence”. [13] In accordance with s 98(1) of the Evidence Act 1995 (NSW), it was therefore necessary to consider whether the evidence of the earlier convictions had “significant probative value.” The judge considered the similarity between the circumstances underlying the 2003 convictions and the allegations concerning the conduct underlying the charges before the Court. He identified the earlier evidence as establishing a “modus operandi”, noting “the overall similarities are marked.” [14] The judge noted the prosecutor’s submission as providing a basis for two findings:

“…firstly, the accused, Mr El-Hilli did the other acts; and secondly, they are so similar to the acts giving rise to the two charges, that I find it is highly improbable both acts were committed by a different person. If I accept those two matters then I can use that evidence, together with the other evidence in the Crown’s case, to be satisfied beyond reasonable doubt the accused, Mr El-Hilli, committed the acts giving rise to the two offences charged in the indictment.”

13.    Judgment, p 18.

14.    Judgment, p 20.

26. Somewhat ambiguously, the judge then repeated his earlier warning to himself as to the way in which he could not use the earlier convictions and concluded:

“Having carefully considered the evidence and noting I have found Mr El-Hilli committed the 2003 acts, I am satisfied they are so similar that it is highly improbable they were committed by a different person.”

27. The ambiguity arises because, despite the language of conclusion, this passage preceded a consideration of the evidence and may well have been a summary of the prosecutor’s submission, which started earlier on the same page. On the other hand, if it were to be taken as a finding of fact, it would illustrate a degree of confusion as to how the evidence of the earlier convictions was sought to be relied upon: there was no issue as to the offences being committed, but by some other person.

28. The contingent exclusion of tendency evidence (s 97) and coincidence evidence (s 98) is governed by the purpose for which the evidence is sought to be used. [15] In dealing with issues which may arise under ss 97 and 98 of the Evidence Act, it may be helpful to commence by identifying the basis on which the evidence is otherwise admissible, namely that it is “relevant” in the proceeding: s 56(1). To be relevant, the evidence, if accepted, must be capable of rationally affecting the assessment of the probability of the existence of a fact in issue: s 55(1). Section 55 assumes a process of inference, which may arise with respect to direct eyewitness testimony, but is particularly significant in relation to circumstantial evidence, and will always be relevant with respect to tendency and coincidence evidence.

    15. Elomar v R [2014] NSWCCA 303 at [359] (Bathurst CJ, Hoeben CJ at CL and Simpson J); White v Johnston [2015] NSWCA 18 at [137] and [138] (Leeming JA).

29. It is quite possible that evidence may bear upon the probability of the existence of a fact in issue in more ways than one: if, in one respect, the reasoning process may fall within either s 97 or s 98 (or both) then the conditions imposed by those provisions (and s 101) must be satisfied for the evidence to be admissible for that purpose. Nevertheless, the evidence may be admissible for an alternative purpose, not falling within those provisions, in which case it may be used for that purpose, but only for that purpose: s 95.

30. The reference to the “2003 convictions”, used in submissions and, on occasion, by the trial judge, tended to obscure the precise relevance of the earlier conduct. It involved the following steps:

1. Mr El-Hilli admitted to fraudulent conduct in 1999-2000;

2. the 1999-2000 conduct demonstrated a modus operandi involving five separate courses of conduct;

3. the elements of the two offences charged in the present indictment bore a striking similarity to the earlier conduct;

4. it may be inferred that the conduct the subject of the present charges was also fraudulent.

31. Broadly speaking, those elements may be reformulated in terms of the syllogistic reasoning identified in Elomar at [360] with respect to tendency evidence. However, at least in the present case, such a broad-brush approach fails to reveal (indeed tends to distract from) the more precise factual assessment which is required. Indeed, the elements set out above are also inadequate, taken by themselves. In order to carry out the function of determining in what way the evidence is relevant, it is necessary first to identify the issues in dispute. Of course, that cannot always be done with precision early in a trial, a circumstance recognised in s 57 of the Evidence Act dealing with “provisional relevance”. That problem does not arise in the present case, although it is an aspect of the procedural ground (ground (2)).

32. The first critical fact in dispute in relation to Mr El-Hilli was whether he falsely represented himself as a man of substantial wealth, or at least having access to substantial amounts of money through a sheikh identified as Sheikh Khalid Ibn Al-Waleed. A second issue was whether Mr El-Hilli knew that such representations were false at the time they were made.

33. The fact that Mr El-Hilli had been shown, on his own admission, to have made similar false representations in the past did not necessarily establish that, some years later, similar representations would necessarily be false. Circumstances may change. Nevertheless, the evidence was clearly relevant for this purpose. In addition, there was further evidence which suggested that circumstances had not changed.

34. The prosecution needed to prove that Mr El-Hilli was not a man of wealth, nor a man who had access to capital from another source, between August and November 2008. The prosecution could establish that fact by evidence that (a) he had made false representations to that effect in 1999-2000; (b) shortly thereafter he was bankrupt, and (c) between 2003 and July 2008 he had been in prison. Each step in that reasoning was probative of the fact in issue (lack of significant financial resources) at the time of the conduct the subject of the indictment. In one sense, the earlier offending could be seen as evidence of a tendency to engage in a particular, unusual, course of conduct. However, the suggested purpose did not rely upon Mr El-Hilli having a tendency to act in a particular way nor to have a particular state of mind. Accordingly, the evidence did not constitute tendency evidence for the purpose of s 97. The prosecution was right to eschew tendency reasoning as part of its case.

35. Further, the evidence as to the past events, although bearing similarity to the matters the subject of the indictment, was not used as coincidence reasoning: rather, it was relied upon to establish an objective state of affairs, namely lack of wealth and access to capital at the time the representations were made in 2008. It demonstrated that Mr El-Hilli had no significant wealth at an earlier point in time and no significant opportunity to acquire wealth in the meantime.

36. The second element of the fraudulent conduct which was in dispute concerned Mr El-Hilli’s knowledge of these circumstances. Taken in isolation, it may have appeared improbable that Mr El-Hilli would enter into loan transactions involving tens of millions of euros with an upfront payment of significant sums in each case, if he had no capacity to provide the capital required. In that situation, the fact that he had conducted himself in a similar way in similar circumstances in the past provided a basis for inferring that he might do it again. That might be said to constitute “tendency” reasoning, based on the apparent propensity of Mr El-Hilli to act in that way.

(b)   ground 2 – procedural challenge

37. Turning to the grounds of appeal in relation to this issue, the first complaint was that the ruling with respect to admissibility was not made prior to trial but only in handing down a final judgment. The applicants asserted that this caused them prejudice, on the basis that they were deprived of an opportunity to institute interlocutory appeals pursuant to s 5F of the Criminal Appeal Act. Reliance was then placed upon the limited basis on which a ruling as to admissibility of evidence should be made, referring to the reasoning of this Court in R v Shamouil [16] with relation to an application to exclude evidence on the basis of prejudice, pursuant to s 137 of the Evidence Act.

    16. (2006) 66 NSWLR 228; [2006] NSWCA 154.

38. The reasoning in Shamouil does not assist the applicants: when admissibility is determined by a judge conducting a jury trial it is sufficient for the judge to be satisfied that the evidence was capable of satisfying the statutory test. The applicants should, however, be in a stronger position on an appeal against conviction in seeking to establish that the higher hurdle, of actual compliance with the legislation, was not reached.

39. The proposed right of interlocutory appeal also misstates the position under the Criminal Appeal Act. Thus, an appeal from an interlocutory judgment (otherwise than by the prosecution) requires leave. [17] Further, it is well established that evidential rulings (at least those which do not determine the outcome of the trial) are not interlocutory judgments or orders within the meaning of s 5F: see, eg, R v Steffan. [18]

    17. Criminal Appeal Act, s 5F(3)(a).

    18. (1993) 30 NSWLR 633 at 636-639; see also R v Adamson [2005] NSWCCA 7.

40. In these circumstances, the challenge to the procedural steps has not been made good. The course taken on the judge-alone trial was not shown to prejudice Mr El-Hilli.

(c)   ground 3 – probative value

41. Mr El-Hilli’s ground (3) challenged the probative value of the 2003 convictions. For the reasons given above, the characterisation of the evidence as engaging coincidence reasoning was, at least in the way it was used as identifying the offender, erroneous; but it was also immaterial.

42. To describe the evidence as relevant to his “state of mind” is not to deny that the process of reasoning with respect to the relevant inferences is tendency reasoning. Although the distinction between tendency and coincidence evidence is not clear-cut in all circumstances, the better view is that this case did not rely on coincidence or tendency reasoning.

43. Although dealing with the issue in relation to s 98 of the Evidence Act (as coincidence evidence) the judge was satisfied that the evidence had significant probative value. Used in the manner explained above, there can be no doubt as to that conclusion. He also noted that the relevant notices had been served. The judge then found that the probative value outweighed any prejudicial effect, pursuant to s 101 of the Evidence Act. That finding was not directly challenged. In any event, the finding was almost beyond challenge. Prejudice, in this context, refers to the potential for misuse of the evidence. The judge recorded (and repeated) unchallenged warnings to himself as to how the evidence should not be used. There is no reason to conclude that the evidence was in fact misused.

44. Ground (3) must be rejected. However, a degree of uncertainty as to the precise manner in which the evidence was used in the trial judge’s reasoning warrants a grant of leave to raise grounds (2) and (3).

Finding as to joint criminal enterprise (Melville, grounds 3 and 5)

45. Grounds (3) and (5) raised by Ms Melville, and the submissions in support of them, were by no means easy to understand. They may be understood as alleging that the coincidence evidence admitted with respect to Mr El-Hilli was also used against Ms Melville, on the basis that a finding that Mr El-Hilli did not have substantial wealth, nor access to significant financial resources, formed a basis of the finding that Ms Melville knew that, or was reckless in that regard.

46. For the reasons explained above, the reasoning required to support the conclusion that Mr El-Hilli did not have such resources available to him was not erroneous. The judge dealt with the manner in which Ms Melville had acted in relation to the prospective borrowers and in relation to the acquisition of the relevant up-front fees as providing sufficient grounds to be satisfied beyond reasonable doubt that she was a party to a joint criminal enterprise and had the relevant state of mind. Her state of mind was that she was at least reckless as to, if not aware of, the absence of available funds to provide the loans she purported to negotiate.

47. It follows that there should be a grant of leave with respect to her grounds (3) and (5), but the appeal must be rejected.

Absence of complete contractual documentation (ground 5)

48. The submissions in support of this ground related to the contractual arrangements with Ms Duncombe. These involved four documents. The first, Exhibit A, was a loan facility agreement between Victor Marsh Duncombe and Maria Diane Duncombe on the one part and Community Life Ltd on the other. A significant purpose of the agreement was to fund the application fee for the separate funding facility with Mr El-Hilli for the Duncombe development proposal. The second document was a loan contract for €5 million; the third document was a loan contract for €50 million. Fourthly, there was a letter signed by Ms Melville undertaking to repay the application fee should the loan amounts not be received by the borrowers. The objections taken to this material appear to have been threefold. First, originals of the two loan contracts had been lost by the police officer in charge of the investigation. Secondly, there were pages missing from both contracts and, thirdly, there had been non-disclosure of the full contracts with the prosecution brief.

49. The ground did not assert that the copy documents were inadmissible, but rather that the trial miscarried because of the failure to provide mandatory pre-trial disclosure of the complete contracts and because incomplete contracts may have provided a misleading impression of the nature of the agreements.

50. So far as the complaint of pre-trial disclosure is concerned, little turns on it as a separate issue. The obligation, pursuant to an order for pre-trial disclosure, is to produce documents in the possession of the prosecutor that are proposed to be tendered at trial: Criminal Procedure Act 1986 (NSW), ss 137(1) and 142. It was not disputed that the prosecutor did not have the original contracts to disclose: rather, there was a suggestion that he failed to make timely inquiry of the police as to the existence of the original documents. When inquiry was made, the documents were reported to have been lost. That statement was not challenged. The absence of the original documents was significant primarily because the copies were missing certain pages. The question of a miscarriage therefore depends upon the significance of the missing pages.

51. Missing were page 20 in the €5 million loan contract and pages 9, 10 and 11 in the €50 million loan contract.

52. Pages 19 and 21 in the larger loan contract were identical with the pages 19 and 21 in the smaller loan contract. These pages were to be found in a standard form deed of charge. The inference that page 20 was also identical in each was overwhelming. Nor was the missing page shown to have any particular relevance.

53. Pages 9, 10 and 11, missing from the larger contract are part of a section headed “International, non-circumvention & non-disclosure”. The same section appears in the other contract. The only element which appears to be specific to the agreement is the insertion of the name of Mr El-Hilli and the period of the contract, being five calendar years. Each contract was with Mr El-Hilli and was for the period of five calendar years. In submissions before the trial judge, Ms Melville submitted that no inference of common terms could be drawn because pages 6 and 7 were “dramatically different”. [19] However, those pages, which were undoubtedly different, were included with each contract. The differences resulted from the contracts involving different amounts and different banking instructions. In particular, with the smaller contract, the application fee was to be deposited into an account in the name of Ms Melville, with an amount for insurance being deposited into an account in the name of Mr El-Hilli, whereas in respect of the larger contract, there was no provision for an application fee payable to Ms Melville.

    19.    Tcpt, 26/05/14, p 215(23).

54. Noting the objection taken to the tender of the documents, the trial judge outlined the basic terms of the agreements and the fact that the documents in evidence were only copies of the contracts and were incomplete. He continued: [20]

“However, throughout the many days of the trial not one question was asked of any witness in regard to the contracts having any other possible meaning. It was accepted by both Duncombe and Kenway [that] they were to borrow €55 million and €18.5 million respectively. This was agreed by both accused. It was accepted by both accused that the upfront fees were to be $800,000 in the case of Mr Kenway and $200,000 in the case of Ms Duncombe. Both Kenway and Duncombe gave evidence of this. It was not put that any of the contracts did not [sic] provide for actual insurance monies to be paid out of the loan sum and not upfront. Consequently, it is not possible on the state of the evidence to give any weight to the objection the contracts were not originals. The clear case for both accused was that each borrower purported to borrow the agreed sum and Ms Melville agreed to accept the upfront fees.”

20.    Judgment, pp 27-28.

55. The submission that the prosecution had suppressed evidence was not made good, nor was any miscarriage demonstrated to flow from the absence of either the original documents or the missing pages. Ground (5) must be rejected.

Prosecutorial misconduct (ground 4)

56. Both applicants alleged there had been “prosecutorial misconduct”, which caused the trial to miscarry.

57. The primary submission relied upon to support this ground involved cross-examination of Ms Melville by the prosecutor directed to having Ms Melville accept that any money provided by the sheikh might have involved “funnelling money from a terrorist into Australia”. [21] Objection was taken to the line of questioning which ended with Mr El-Hilli saying, “You know, silly questions deserve silly answers, your Honour.” The trial judge put an end to the line of questioning by saying, “Anyway, let’s move on. It’s not particularly productive. Just let’s move on.” [22]

    21.    Tcpt, 04/07/14, p 1689(22).

    22.    Tcpt, p 1690(15).

58. These remarks adequately summed up the exchange in cross-examination: the matter did not go anywhere. It certainly did not give rise to a miscarriage of justice.

59. Mr El-Hilli submitted that this was but one of many instances in which he was “ridiculed, belittled and his evidence treated with disdain.” There are a number of available responses to this submission.

60. First, the example occurred in the cross-examination of Ms Melville, not Mr El-Hilli. Secondly, while it is inappropriate for a prosecutor to ridicule or belittle the case of an accused, to convey that he or she is indicating a personal opinion, or otherwise seek to raise prejudice or emotion by intemperate or inflammatory comments, such conduct is less likely to result in a miscarriage of justice in a judge-alone trial. Thirdly, it is by no means clear that there was inappropriate conduct on the part of the prosecutor, of the kind described in the submissions. There is no doubt that the prosecutor set out to cast doubt on the evidence given by both of the accused. He was entitled to treat that evidence as potentially incredible, as, on its face, some of it was. The trial judge dealt with Mr El-Hilli’s evidence in the following terms: [23]

“Mr El-Hilli was in the witness box for about seven days and was strenuously cross-examined by Mr Crown. …

The thrust of the cross-examination was that Mr El-Hilli’s version of his life and the events leading up to and following the two loan transactions were so fantastic and absurd as to be totally unbelievable.”

23.    Judgment, p 61.

61. It was clear in the reasoning which followed that the judge rejected key aspects of Mr El-Hilli’s evidence. He stated: [24]

“I have come to the conclusion that Mr El-Hilli due to the extraordinary and untenable nature of his claims concerning massive wealth and his relationship with the Sheikh, is a witness who cannot be accepted in this regard.”

24.    Judgment, p 74.

62. In relation to Ms Melville, the submissions included references to her evidence in the prosecutor’s final address. It was the prosecution case, in dealing with her evidence, that her story was substantially or almost entirely false. [25] The prosecutor characterised her evidence as presenting two inconsistent indeed “glaringly polar opposite sides of herself”. [26] One was that she herself had significant wealth and high executive skills; the other was that she was a dupe of Mr El-Hilli and had been so foolish as to believe whatever he told her.

    25.    Tcpt, 09/07/14, p 2023(5).

    26.    Tcpt, pp 2023-2024.

63. A feature of the prosecution address with respect to Ms Melville’s evidence was that her claims depended entirely upon her own statements, without any supporting documentary record. There was no misconduct on the part of the prosecutor in treating parts of her evidence as a fabrication and presenting the prosecution case on that basis. The trial judge addressed Ms Melville’s evidence with some care, but ultimately concluded that, in critical respects, she had not told the truth. [27] There was no improper conduct revealed by the prosecutor’s address in relation to Ms Melville. No miscarriage of justice has been demonstrated.

    27.    Judgment, pp 76-79.

Miscellaneous (ground 6)

64. The original grounds of appeal filed by Ms Melville on 28 May and by Mr El-Hilli on 1 June 2015 both included as the primary ground a claim that the verdicts against them were unreasonable and could not be supported by the evidence. The submissions in support of those grounds did little more than summarise the subsequent more specific submissions. It was not said that the evidence admitted at trial was insufficient to support the convictions: nor could that reasonably have been suggested. That ground was not repeated in the grounds and submissions filed on 6 July 2015, although the final submission of each, stating that “erroneous rulings, directions and admissions” had cemented a miscarriage of justice and “obliterating her [in each case – sic] right to a fair trial”. However, the submissions referred to no specific error or errors but asserted that the Court “will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the Court’s view, are essential to a satisfactory trial”.

65. The principle is, of course, undoubted: no relevant basis for its application was, however, demonstrated in the case of either Mr El-Hilli or Ms Melville.

Conclusion

66. The manner in which the trial judge dealt with the question of tendency and coincidence evidence warranted a grant of leave to Mr El-Hilli to challenge his convictions on that basis. That included grounds (2) and (3) in his final submissions dated 6 July 2015. Leave should not extend to the other grounds relied upon in those submissions. The appeal against the convictions, limited to those grounds, must be dismissed.

67. With respect to Ms Melville, the tendency and coincidence evidence was only relevant to her to the extent that she was involved in a joint criminal enterprise with Mr El-Hilli. She was not party to his earlier convictions. The mental element of her offending did not depend upon the tendency or coincidence evidence. However, to the extent that a ruling with relation to that material might have formed the basis for an application for separate trials, even though somewhat implausible in the circumstances, there should be a grant of leave with respect to that aspect of her grounds of appeal, being her grounds (3) and (5). Otherwise the grounds do not warrant a grant of leave to appeal against conviction. The appeal, so limited, should be dismissed.

Appeals against sentence

(a)   Issam El-Hilli

68. Mr El-Hilli was convicted and sentenced for two counts under s 178BA of the Crimes Act. The provision was repealed in 2010 but, as in force at the date of the offending, it carried a maximum penalty of imprisonment for five years. Mr El-Hilli was sentenced separately for each offence. He was sentenced first on count 2 as being the marginally less serious offence, because it involved the dishonest obtaining of a lesser amount of money. A sentence of three years imprisonment was imposed, with a non-parole period of two years and three months. The sentence was backdated by two years to take account of a period served by Mr El-Hilli in custody in England, together with further periods during which he was on bail, but subject to rigorous conditions. It commenced on 16 December 2012.

69. For the second offence (count 1) a period of three years and four months imprisonment was imposed, with a non-parole period of two years and six months. That sentence was partly accumulated on the first, commencing one year and eight months after the commencement of the first sentence, namely on 16 August 2014. The cumulative non-parole period (four years and two months) will therefore expire on 15 February 2017. The cumulative overall sentence (five years) will run until 15 December 2017.

70. Mr El-Hilli contends that each sentence is manifestly excessive, as is the degree of accumulation.

71. With respect to the objective seriousness of the offending, the applicant relied upon the following statement, which he implied was agreed to by the prosecutor during the sentencing proceedings, namely that it was “certainly not at the upper end of any fraud, not even at the upper end when it comes to money, but below midrange. Not much below midrange however.” That proposition was in fact put by senior counsel appearing for Mr El-Hilli on sentence; [28] it was not accepted by the prosecutor who submitted that “this is close to a worst case under the provision.” [29]

    28.    Tcpt 16/12/14, p 6(20).

    29.    Tcpt, p 26(12).

72. The assessment of the trial judge accorded more closely with that of the prosecutor. He recorded findings made in accordance with his judgment on liability that Mr El-Hilli “was clearly the person who planned and originated these false lending schemes”; that he “recruited the co-offender Ms Melville to act as a buffer between himself and the borrowers”; that if there were a sheikh, “there was no legitimate arrangement to lend vast sums of money” nor did Mr El-Hilli “have access to vast sums of money on his own account” and that Mr El-Hilli “began the planning of the crimes very shortly following his release from prison on the 2003 matters” and that he “deliberately set out give potential borrowers the illusion of great wealth and that this extended the renting of an inner-city unit.” He further concluded that both Ms Duncombe and Mr Kenway parted with their moneys on the basis that they would be repaid if the loan moneys were not forthcoming. The judge noted that the victims were duped, as were others associated with them, by a false façade which involved “quite detailed organisation and planning, including producing the loan documentation, false emails and hiring an appropriate inner-city apartment to convince victims of wealth.” He described the level of sophistication and planning as “quite significant” and said that it was “breathtaking in its audacity.” The judge concluded: [30]

“I accept the Crown submission that although there are only two charges, each involved a multiplicity of dishonest acts by each offender. The offences took place over a number of months from approximately August 2008 until October/November 2008. Correspondence and delay continued into the next year. This is not an overly long period but constant conduct and thereby deception continued throughout.”

30.    Judgment on sentence, 04/02/15, p 8.

73. The judge further found that the motive of both offenders was greed, describing their subsequent spending as “voracious” and “frankly mind-boggling.” Taking all these considerations into account, he concluded “that these are both crimes for both offenders of considerable seriousness.”

74. Nothing was put by way of submissions in this Court to cast doubt upon this assessment.

75. Mr El-Hilli’s subjective circumstances gave him no assistance. His date of birth was recorded in 1951; his criminal record commenced in 1974. After a number of counts of larceny and counts relating to false pretences, he graduated in 1982 to possessing a firearm and, in 1987, to armed robbery. The offences of obtaining money by deception, for which he was sentenced to imprisonment and released shortly prior to the present offending, were undertaken in 1999-2000. This was a record which both denied the applicant any benefit of leniency and which required weight to be given to “retribution, deterrence and protection of society”, as indicated by the sentencing judge. [31]

    31.    Judgment on sentence, p 9.

76. The written submissions suggested that his record had been treated as an aggravating circumstance, rather than being approached in the manner referred to above. That was not the case.

77. The submissions also complained that the sentencing judge failed to consider reports tendered on his behalf and prepared by Dr Janelle Miller (psychiatrist) and Dr Stephen Woods (psychologist). That complaint was simply false: the judge gave careful consideration to both reports, extracting passages from each over four pages of his reasons. The submissions suggested that the judge should have accepted that he had reached a turning point in his life. However, the judge stated that “looking at his chances of rehabilitation and of not reoffending, I can only say that it is difficult to hold out much hope.” Noting that he was 63 years of age and was genuinely attached to both Ms Melville and to their daughter the judge said that this “might make him think a little about re-embarking on criminal schemes, but little weight can be attached to this.” [32]

    32.    Judgment on sentence, p 12.

78. The judge not only had the benefit of the diagnoses of each expert (to similar effect, namely that he did not suffer from a mental illness, but had a narcissistic personality disorder) the profile for which he described as fitting very much with his observations of Mr El-Hilli during the 31 day trial and the sentencing proceeding. [33] It is not possible to doubt the accuracy of the findings, nor was any basis for doing so demonstrated.

    33.    Judgment on sentence, p 11.

79. Finally, there was a complaint as to the level of accumulation of the sentences. In the course of submissions on sentence, senior counsel had suggested that “a substantial degree of concurrence is warranted in relation to the two offences but so is a significant degree of accumulation.” [34] That was an entirely reasonable proposition, which was accepted and applied by the sentencing judge. It is doubtful if error could have been shown had there been a full accumulation, but that was not a step taken.

    34.    Tcpt, 16/12/14, p 2(40).

80. It follows that Mr El-Hilli’s application for leave to appeal against sentence should be refused. There were no arguable grounds identifying error.

(b)   Jenny Samantha Melville

81. Although sentenced as a co-offender in a joint criminal enterprise, Ms Melville received a markedly lower sentence than that imposed on Mr El-Hilli. The structure of her sentence conformed to that of Mr El-Hilli in that the first sentence imposed was in relation to count 2 and constituted a fixed term of nine months, to date from 16 December 2014 and expire on 15 September 2015. The sentence imposed on count 1 commenced on 16 March 2015 and comprised a non-parole period of 12 months (expiring 15 March 2016) with a balance of term of 12 months, expiring on 15 March 2017. The judgment made a finding of special circumstances, on the basis that it was a first sentence of imprisonment and that society would benefit from a longer period on parole, thus justifying an adjustment of the non-parole period, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). The judge directed her release at the end of the non-parole period, a course which he was required to take in imposing a sentence of three years or less. [35]

    35. Sentencing Procedure Act, s 50.

82. The objective circumstances surrounding the offending have been described above. Some circumstances related specifically to Mr El-Hilli, but some involved Ms Melville. Thus, it followed from the fact that Mr El-Hilli was the person who planned and organised the false lending schemes that Ms Melville was a less significant player. However dealing with her case, the judge found that “although recruited by Mr El-Hilli she quickly became central to the dealings with Mr Kenway and especially Ms Duncombe.” He also found that Ms Melville “knew that Mr El-Hilli had only recently been released from prison.” Further, she was “a party to the dissipation of a large amount of the moneys received from Mr Kenway and Ms Duncombe, which occurred in a very short time following receipt.” The judge found that when writing “delaying emails and making telephone calls with either Mr Kenway or Ms Duncombe she was aware that this was just to delay.” [36]

    36.    Judgment on sentence, pp 4-5.

83. Ms Melville had subjective circumstances in her favour. She had no prior criminal convictions, was agreed to be of good character, and entitled to leniency in that regard. Ms Melville gave evidence on sentence, although only after the prosecutor had challenged the suggested common ground that her inability to find a person to look after her daughter would compromise her daughter’s well-being if she were sentenced to fulltime imprisonment. Although a pre-sentence report was favourable and assessed her risk of re-offending as “low”, the judge remarked that she would “need to stay clear of any schemes potentially hatched by Mr El-Hilli if she wishes to ensure that this assessment of low risk of offending is born[e] out.” [37]

    37.    Judgment on sentence, p 14.

(i)   prejudgment

84. Ms Melville put in significant written submissions on her appeal against sentence. The first complaint alleged that the trial judge had made up his mind in respect of a custodial sentence before the sentencing hearing. That, it was submitted, was revealed by comments when she had applied for bail on 15 July 2014 suggesting she should make arrangements for her daughter before the sentencing hearing took place. [38]

    38.    Tcpt, 15/07/14, p 6.

85. The remarks made by the judge at the bail hearing did not constitute an expression of pre-judgment: rather, they demonstrated realistic advice in circumstances where it was clear to the judge, if not to the offender, that a fulltime custodial sentence was a likely outcome. In fact the possibility of such an outcome was appreciated by Ms Melville who responded at one point, “I understand that there might be a custodial sentence.” [39]

    39.    Tcpt, 15/07/14, p 4(12).

(ii)   backdating

86. Secondly, Ms Melville alleged error in a failure to backdate her sentence to take account of a lengthy period of conditional liberty in the UK (18 months), while subject to a curfew, electronic monitoring and reporting conditions.

87. Mr El-Hilli’s sentence was back-dated two years, primarily to take into account a period of approximately one year nine months of actual custody. Thus, a period of only some three months was allowed to take account of the period subject to strict controls in the UK (the actual period on bail being one year two months) and a further period on bail in Australia.

88. There was discussion in the course of the sentence proceedings with respect to periods spent by Mr El-Hilli, both in custody and on remand. Senior counsel appearing for Mr El-Hilli proposed that account be taken of the “extra-curial punishment” involved in the periods both of pre-trial custody and being on remand under strict conditions. No similar submissions were made with respect to Ms Melville, although it would have been known to the sentencing judge that she had been arrested and granted bail in the UK and, following her extradition to Australia, in this country.

89. These events can be accounted for in different ways. One, somewhat artificial, mechanism is to backdate the sentence even though the offender may not have been in custody at all during the period when the sentence was supposedly running. An alternative course is to simply reduce the sentence to take account of earlier custodial periods and periods under strict bail conditions. Where there is a period of actual custody of not insignificant length, backdating is treated as preferable, because it reveals the true extent of the sentence. Where allowance is made with respect to a period on remand under strict conditions, which is not directly equivalent to custody, a short reduction in sentence is an appropriate course to take.

90. Having sentenced both offenders, the judge invited counsel to check the dates and asked whether there was anything which Ms Melville did not understand. Counsel indicated there was not. After Mr El-Hilli was sentenced, there were further exchanges between the Court and Mr El-Hilli after which counsel appearing for Ms Melville asked: [40]

“JAMES: Your Honour with regards to Ms Melville could I ask did your Honour take into account the house arrest that she served prior to the matter.

HIS HONOUR: Yes I should put that on record, I did. I did take into account the period of house arrest.

JAMES: Your Honour the dates are fine in regards to Ms Melville.”

40.    Tcpt, 16/12/14, p 19.

91. There was no error in the course taken in this regard.

(iii)   effect of sentence on child

92. Thirdly, Ms Melville submitted that the sentencing judge had failed to have proper regard to the effect of a sentence of fulltime imprisonment on her young child, then four years of age.

93. In R v Edwards [41] this Court (Gleeson CJ, James and Ireland JJ) allowed a prosecution appeal in circumstances where the offender had entered a plea of guilty to manslaughter with respect to the death of her partner and had received a sentence of three years to be served by way of periodic detention. The basis for the leniency was her ability to work effectively with a difficult and dangerous inmate of an institution for the intellectually and psychiatrically disabled. In short, lenience had been accorded because of the hardship which a sentence of fulltime imprisonment would have caused to a third party. As Gleeson CJ noted, “regrettably, causing hardship to third parties by the imprisonment of an offender is only too common.” [42] The third parties who are the usual sufferers are the spouse and children of the offender. When compared with their situation, it was said that the concern for Ms Edwards' patient “cannot fairly be characterised as exceptional in degree.” The Chief Justice continued:

“Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional.”

41. (1996) 90 A Crim R 510.

42.    Edwards at 516.

94. Gleeson CJ also cited with approval the observations of Wells J in The Queen v Wirth [43] including the principle that “hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so.”

    43. (1976) 14 SASR 291 at 295-296.

95. Those principles were stated as applicable to sentencing under the general law. In R v Togias [44] this Court considered a prosecution appeal in circumstances where the offender had been convicted of importing a commercial quantity of ecstasy, following a plea of guilty, but by the time of sentencing, a year later, had given birth to a baby who was three months old at the time of sentencing. The offence under federal law required the sentencing to be conducted in accordance with the provisions of the Crimes Act 1914 (Cth), s 16A(2)(p) of which required that the court take into account “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.” The general law approach was held to be applicable.

    44. [2001] NSWCCA 522; 127 A Crim R 23.

96. Section 21A of the Sentencing Procedure Act, which identifies general considerations, aggravating factors and mitigating factors, does not deal with the possible effect of a custodial sentence on third parties. Nor is it properly described as “any other objective or subjective factor that affects the relatively seriousness of the offence.”[45] On the other hand, the matters identified in s 21A(1) are said to be “in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.” There is no reason to exclude the consequences for a third party, if they are truly or highly exceptional, in accordance with the general law principle.

    45. Section 21A(1)(c).

97. In Dipangkear v Regina [46] Whealy J (Hodgson JA and Buddin J agreeing) stated that where the features of a particular case pointed to the need to impose a custodial sentence, but there was evidence of extreme hardship to a third party, a court may take one of three steps, namely (i) suspend the sentence of imprisonment, (ii) shorten the sentence, or (iii) decrease the non-parole period. The sentencing judge had in fact adopted both (ii) and (iii), despite finding that the hardship likely to be suffered by the offender’s wife and unborn child was not “highly exceptional”. [47] Whealy J suggested that that approach might have been viewed as overly lenient.

    46. [2010] NSWCCA 156 at [34].

    47. Dipangkear at [41].

98. The present case was similar to Dipangkear. The judge, noting the strong bond between mother and daughter, and noting evidence that a sentence in excess of 12 months fulltime imprisonment could mean separation from her daughter and that there were “some real difficulties in placing” the daughter should fulltime imprisonment be deemed necessary, nevertheless did not accept that “any exceptional circumstances have been raised in regard to this particular matter.” That was an evaluative finding based on the primary facts identified, with which this Court could only interfere if error were demonstrated. Despite not finding exceptional circumstances, the judge did give consideration to the difficulty, concluding:

“No judge enjoys gaoling a mother. However, I will give her some leniency because of this sad situation and the fact that she is responsible on a day-to-day basis for a four year old girl, but I cannot ignore her role in these objectively serious offences and impose sentences that do not reflect this.”

The findings of the trial judge were thus in muted terms.

99. In giving evidence on sentence, the applicant had been asked in turn about each member of her family and Mr El-Hilli’s family who might be able to care for their daughter if both parents were in custody. After giving evidence that she was “estranged” from her sisters, she was asked whether she was still close to her mother and said, “No, I don’t say that.” [48] However, in the probation and parole report, which was tendered without objection, the account given to the Corrective Services officer was that she “maintains a supportive relationship with her mother”. When that was put to her in cross-examination, she said that that was “not what I said to Corrective Services.” [49]

    48.    Tcpt, 16/12/14, p 20(30).

    49.    Tcpt, p 20(40).

100. Nevertheless, the applicant conceded that she had spoken to her mother about care for her daughter but said that her mother was “not in a position medically or physically to take my daughter which is very upsetting.” She continued:

“She is not in a financial position. She is on a single widow’s pension. She cannot look after my child.”

101. Ms Melville was then cross-examined about the evidence given at her trial that she had “significant funds” located in the United Kingdom. She said that was true, but continued to maintain that her mother’s financial position was “a real concern”.

102. Further, the uncontradicted evidence was that the daughter would be able to stay with her in prison until she reached school age. Although Ms Melville stated that “she needs to go to school at 5”, [50] the school age in New South Wales is in fact six years.

     50.    Tcpt, p 17(8).

103. In supplementary submissions filed in this Court on 29 September 2015, she referred to the statement of the officer for the Director that the criminal justice visa under which her daughter had entered the country was cancelled on 21 November 2014. The letter continued:

“The cancellation of my daughter[’]s visa was undertaken prior to sentencing submissions, and such pertinent/critical information was withheld, from the Court + myself as parent of the child until 21 August 2015.”

104. That complaint is not entirely consistent with her evidence on oath at the sentencing proceedings when she explained that her daughter was in Australia “on a criminal justice visa that expired.” On the other hand, a solicitor in the Director’s office wrote to her solicitor on 28 November 2014, shortly before the sentencing hearing, noting that the visa had not been “revoked”. (The solicitor also reaffirmed the undertaking to pay the child’s medical and dental costs, which was the subject matter of the concern at that stage.)

105. The applicant’s daughter was apparently born on 25 November 2010, so that she would turn six in November 2016. On any view, the applicant mother will be entitled to release from custody in March 2016, four months after her daughter turns five years of age.

106. In these circumstances, the applicant has not established a factual basis upon which to challenge the finding of the sentencing judge that no case of exceptional circumstances had been made out. The evidence does not establish the likelihood that mother and daughter will be separated before her release from custody.

107. It may be that Ms Melville entertains a fear that her daughter will be removed to the United Kingdom, where she has no family, prior to her mother’s release from custody.

108. Evidence with respect to the current status of the daughter’s visa was admitted by the Court following the hearing. The Solicitor for Public Prosecutions requested a further opportunity to provide “accurate information about what notification Ms Melville received from the original solicitor with carriage [of the matter].” This request was rejected, because it did not relate to a matter which arose on the appeal. What might have been relevant on the appeal, being evidence relevant to the sentence, but not available to the sentencing judge at the time of sentence, would be material demonstrating an intention on the part of officers in the Department of Immigration to remove her daughter from Australia prior to Ms Melville’s release from custody. There is presently no evidence before the Court of any such intention and accordingly it is not appropriate for this issue to be pursued further.

109. The first call for relief in such a situation would, in any event, be a review of the decision of the Minister for Immigration, rather than a reopening of the sentencing judgment in this Court. However, against the unlikely possibility that steps were taken to remove the daughter prior to the mother’s release from custody on the present charges, and the further unlikely possibility that immediate relief is not otherwise available, this Court should grant leave to appeal but reserve its decision on the appeal for the limited purpose of considering further evidence on the issue if it arises, but otherwise ordering that the appeal will stand dismissed on 15 March 2016.

Orders

110. With respect to Mr El-Hilli, the Court makes the following orders:

(1)   Grant Issam El-Hilli leave to challenge his convictions on grounds (2) and (3) as identified in his “final submissions” dated 6 July 2015, but otherwise refuse leave to appeal.

(2)   Dismiss the appeal, limited to those grounds.

(3)   Refuse Issam El-Hilli leave to appeal against the sentences imposed on 16 December 2014.

111. With respect to Jenny Samantha Melville:

(1)   Grant leave to appeal against conviction on grounds (3) and (5) as set out in her final submissions, but otherwise refuse leave to appeal.

(2)   Dismiss the appeal, limited to those grounds.

(3)   Grant leave to appeal against the sentences imposed on 16 December 2014.

(4)   Subject to any further order of the Court, dismiss the appeal against the sentences, with effect from 15 March 2016.

112. HALL J: I agree with the reasons of Basten JA and the orders proposed by his Honour.

113. WILSON J: I agree with Basten JA.

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Endnotes

Amendments

23 November 2015 - [93] Amending "Ms Edward's" to "Ms Edwards' "; "been" to "be" in quote.

Decision last updated: 23 November 2015