McRoberts v The Queen - [2018] NTCCA 11

CITATION:McRoberts v The Queen [2018] NTCCA 11

PARTIES: McROBERTS, John Ringland

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory Jurisdiction
FILE NO:21616999
DELIVERED:  2 July 2018
HEARING DATES:  27 June 2018 and 2 July 2018
JUDGMENT OF:  Southwood ACJ
CATCHWORDS:

CRIMINAL LAW – Appeal – Appeal Bail – Bail Act 1982 (NT) s 23A – whether special or exceptional circumstances shown – prospects of success on appeal insufficient – real risk of miscarriage of justice not demonstrated at this stage of the appeal – no real hardship – bail refused
Bail Act 1982 (NT) s 23A.

Brent v The Queen (1994) 70 A Crim R 1, Caratti v The Queen (2001) 1 LegRep C1, Chamberlain v The Queen [No. 1] (1983) 153 CLR 514, Chew v The Queen [No 2] (1991) 66 ALJR 221, Doggett v The Queen (Bail Application) (Unreported, High Court, Callinan J, B 54/2000, 2 November 2000), Ex Parte Maher [1986] 1 Qd R 303, Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241, Johnson v Miller (1937) 59 CLR 467, King v The Queen (1985) 17 A Crim R 184, King v The Queen (1986) 161 CLR 423, Lane v The Queen [2017] VSCA 170, Marotta v The Queen (1998) 160 ALR 525, Parsons v The Queen (1998) 72 ALJR 1325, Peters v The Queen (1996) 71 ALJR 309, R v Abbott (1997) 97 A Crim R 19, R v Giordano (1982) 31 SASR 241, R v Wilson (1994) 34 NSWLR 1, Re Clarkson [1986] VR 583, Re Jackson [1997] 2 VR 1, Re Pennant [1997] 2 VR 85, Re Zoudi (2016) 14 VR 580, Robinson v The Queen (1991) 65 ALJR 519, Sinanovic v The Queen (No 1) (2001) 179 ALR 520, Sullivan v Director of Public Prosecutions (2000) 17 LegRep C13, United Mexican States v Cabal (2001) 209 CLR 165, Velevski v The Queen (2000) 18 LegRep C2, Weston v The Queen (2000) 16 LegRep C2, Willers v The Queen (Bail Application) (unreported, WACCA, BC9503653, 7 June 1995), referred to.
J Willis, ‘Bail Pending Appeal after Conviction and Sentence on Indictment’ (2005) 29 Crim LJ 296.

REPRESENTATION:
Counsel:
Appellant:A Elliott
Respondent:  M Chalmers
Solicitors:
Appellant:S Ramdhas
Respondent:
Judgment category classification:   B
Judgment ID Number:  Sou1803
Number of pages:  23

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McRoberts v The Queen [2018] NTCCA 11

No. 21616999

BETWEEN:
JOHN RINGLAND McROBERTS

Applicant
AND:
THE QUEEN

Respondent

CORAM: Southwood ACJ
REASONS FOR JUDGMENT
(Delivered 2 July 2018)
Southwood ACJ:

On 31 May 2018, following a six week trial, John Ringland McRoberts, the applicant, was found guilty by a jury of the crime of attempt to pervert the course of justice contrary to s 109 of the Criminal Code (NT).
On 26 June 2018 he was convicted of that crime and sentenced to three years’ imprisonment which sentence is to be suspended after he has served 12 months in prison.
On 25 June 2018 the applicant filed a notice of appeal in the Court of Criminal Appeal. The notice of appeal pleads four grounds of appeal:
·     The learned judge erred in law allowing the prosecution to put a case to the jury which was based upon “frustrating or deflecting the criminal investigation” when: (a) the law as articulated in R v Rogerson clearly articulates that it is the frustration or deflection of the prosecution which constitutes the offence of attempting to pervert the course of justice; and (b) the law does not recognise that an act which results in mere delay in a police investigation or in a step thereof constitutes the offence of attempting to pervert the course of justice; and as a consequence there were one or more wrong decisions on questions of law resulting in a miscarriage of justice such that the judgment of the court of trial should be set aside.
·     The decision of the learned trial judge to allow the trial to proceed in circumstances where the prosecution sought to leave a case to the jury which was substantially different to the particulars which the prosecution had supplied to the defence prior to trial, and upon which they had opened on to the jury, was a wrong decision on a question of law and resulted in a miscarriage of justice such that the judgment of the court of trial should be set aside.
·     The decision of the learned trial judge to refuse the defence application to uplift the diary of the witness, Clinton Thomas Sims, in order that an expert forensic examination could be carried out on his diary by a document examiner to identify whether certain entries in the diary were made otherwise than in accordance with the testimony of Mr Sims, was wrong and resulted in a miscarriage of justice such that the judgment of the court of trial should be set aside.
·     The verdict of the jury is unreasonable and cannot be supported by the evidence in so far as the evidence adduced by the prosecution was not capable, regardless of whether the case to be determined was the case particularised or the case ultimately left to the jury, of proving beyond reasonable doubt that: (a) the acts of the appellant had the necessary tendency to pervert the course of justice; (b) the appellant had the necessary intention to pervert the course of justice; and (c) the institution of the proceedings was frustrated or deflected by the acts proven against the appellant.
On 26 June 2018 the applicant filed an application for bail pending the outcome of his appeal. The application was heard on 27 June 2018. The application is supported by an affidavit made by Ms Sharleena Ramdhas on 25 June 2018.
The affidavit deposes to the grounds of appeal pleaded in the notice of appeal, states that the applicant has good prospects of success, and goes on to state the following:
Significantly, the grounds assert a process error in that the prosecution, having provided particulars notifying that its case was to be run in a particular way departed from that case in a manner which occasioned substantial unfairness to the accused, who ran his case on the particulars provided shortly in advance of trial. As a result of that, counsel for the appellant did not cross-examine particular witnesses on the question of delay leading to the risk of loss of evidence, which was the basis upon which the Crown case was ultimately left to the jury.
The additional grounds deal with other issues, including the complaint that deflecting an investigation cannot, at law, constitute the offence of attempting to pervert the course of justice. And further, it is complained that, under the existing law, there must be a frustration of the investigation rather than a mere delay. It is to be argued that while a delay in proceeding[s] which are not on foot can amount to attempt to pervert the course of justice, delaying an investigation does not.
The affidavit further deposes, in effect, that the applicant had an outstanding career as a police officer, has solid connections to Australia, is highly unlikely to commit a further offence, his father is now 79 years of age, lives alone and requires his assistance or he may suffer harm, the applicant is in business with his brother and his brother does not have the capacity to carry on the business by himself, the applicant has met all of his bail commitments during the course of this proceeding, and a substantial part of the sentence will be served if he is not granted bail and his appeal is successful.
Applications for bail after conviction and sentence, and pending appeal are governed by s 23A of the Bail Act 1982 (NT). Section 23A of the Bail Act states:
Despite anything in this Act, where an appeal is pending in the Court of Criminal Appeal against:
(a) conviction on indictment; or
(b) a sentence passed on conviction on indictment;
bail must not be granted by the Court or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail.
The effect of the above provisions is that bail will not be granted pending an appeal against conviction unless there are special or exceptional circumstances.
While the totality of circumstances must be looked at,[1] there are two major matters that are regularly relied on to establish special or exceptional circumstances. They are:
(a) The likelihood that the whole or a major part of a custodial sentence will have been served before the hearing of the appeal, and
(b) Strong prospects that the appeal will be successful.[2]
The earliest that the applicant’s appeal can be heard by the Court of Criminal Appeal is in the week 22 to 26 October 2018. So that approximately four months of a 12 month sentence of actual imprisonment will be served by the time the applicant’s appeal is heard by the Court of Criminal Appeal.
The likelihood that an applicant will serve the whole, or a substantial part of, his sentence before his appeal is heard is often regarded as a sufficient ground to satisfy the requirement of exceptional circumstances.[3]
Strong prospects that an appeal will be successful is also an important factor in determining whether there are exceptional circumstances and can, of themselves, justify the grant of bail pending appeal. In some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the appellant has a good chance of success on appeal. This may afford sufficient reason to grant him bail.[4]
However, in most cases, particularly if the application for bail is made very soon after conviction and sentence, it will be impossible to make any proper assessment of the prospects of success on appeal. In many instances the prospects of success of an appeal can only be viewed in very preliminary and cursory manner on a bail application.[5] Further, it should be clearly understood that the fact there are fairly arguable grounds of appeal cannot, standing alone, be regarded as constituting exceptional circumstances so as to justify the grant of bail pending appeal.[6] It has often been held that it will require something more than an arguable point in the Court of Criminal Appeal if the application for bail pending appeal is to be successful.[7] The applicant must be most likely to succeed on appeal.[8] This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances.[9] Where the prospects of success on appeal are put forward as a special circumstance what must be established is a ground of appeal which is most likely to succeed and one which can be seen without detailed argument. It is not sufficient to show a merely arguable ground of appeal, or even one which has reasonable prospects of success.[10] As his Honour Callinan J has stated, the appeal must raise a ground of appeal of real substance which would probably justify at least a retrial.[11]
Another matter which may be relevant to establishing exceptional circumstances when taken in conjunction with other factors is hardship to the applicant’s family which cannot be resolved otherwise than by granting the applicant bail.[12] The hardship must be real hardship. In my opinion there is no such hardship in the present case.
A combination of factors, none of which individually is conclusive, can also amount to exceptional circumstances.[13]
There are various policy grounds which support a strict approach to appeal bail after and sentence conviction on indictment. The grounds have been carefully analysed by Professor Willis in an article in volume 29 of the Criminal Law Journal[14] and are discussed in various authorities.[15] These grounds include, appeal bail:[16]
·     makes the conviction appear contingent until confirmed;[17]
·     places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
·     encourages unmeritorious appeals;
·     undermines respect for the judicial system by having a recently sentenced man walk free; and
·     undermines the public interest in having convicted person serve their sentences as soon as is practicable.
As Professor Willis notes, the status of a person convicted and sentenced to a term of imprisonment is quite different from that of a person awaiting trial.[18] The presumption of innocence is gone. In its place, there is what can be described as a presumption of guilt based on a further presumption that the trial has been conducted according to law and the jury has reached a verdict that was reasonably open on the evidence. The criminal justice system is an important part of the community fabric. The conviction and sentencing of wrongdoers is seen both as protecting the community and also properly punishing criminals. Public confidence in the administration of justice may well be weakened if too many defendants convicted of serious offences and sentenced to prison are seen to avoid serving the sentence forthwith by the simple expedient of filing a notice of appeal and being granted bail pending appeal.
In considering the above policy grounds, Professor Willis states that it is necessary also to take into account that many appeals are successful; prosecutions can be misconducted; trial judges do err; and juries can reach unsupported or unreasonable verdicts.[19] The public interest is not served by having persons incarcerated in circumstances where there is a real doubt about the validity of a guilty verdict. If a person who is denied bail is ultimately acquitted by the Court of Criminal Appeal an injustice has resulted. Justice and fairness in the criminal justice system are important values. The community expects that defendants get a fair trial.
As was stated by the Court of Criminal Appeal in Victoria in Lane v The Queen[20] and in Re Zoudi[21] what enlivens the jurisdiction to grant bail pending an appeal is the need to prevent injustice to the applicant. Plainly, there will be injustice if an applicant serves time in custody which the appeal court subsequently concludes he or she should not have served. Self-evidently, such an outcome offends every principle of criminal justice. If persuaded that there is a real risk of injustice of that kind occurring, the court will strive to eliminate that risk.
A critical aspect of all the matters to which I referred is that it is incumbent on a convicted person to show the Court of Criminal Appeal that there is an issue of real substance about whether the trial process has in some significant way been flawed or that the jury verdict was unreasonable. A convicted person seeking bail has the onus of showing why bail should be granted and the reason for granting bail must be exceptional.
Counsel for the applicant, Mr Elliott, has fairly conceded that the applicant’s main ground of appeal is ground 2. Mr Elliott has told the court that if the court is satisfied that ground 2 does not meet the requisite test for the grant of bail pending appeal then it is unlikely that the other grounds of appeal would do so. As a result, Mr Elliott only pressed ground 2 in this application. That is, of course, not to say that the applicant has in any sense abandoned the other grounds in the substantive appeal. He has not done so.
As to ground 2, Mr Elliott relied on the decision of the High Court in King v The Queen.[22] That case is authority for the following propositions. It is the right of every accused person to know, with particularity, the case which the prosecution wishes to prove at trial. As a direct consequence of this right, a prosecutor clearly should be required to identify the transactions and, where necessary, the tendency of the transactions on which the prosecution relies. A defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge.[23] Where the parties have conducted a trial on the basis of the particulars provided by the Crown, and there is a late change in the manner in which the Crown seeks to establish the offence, such a change may amount to a miscarriage of justice and entitle an accused to a retrial.
In King v Queen two accused were jointly tried. One accused was alleged to be a husband who contracted the second accused to murder his wife. The Crown case was that the appellant was the husband and his co-accused was the man who he contracted to, and did, murder his wife. Until the trial judge’s summing up, there was no suggestion that someone else other than the co-accused may have been contracted by the appellant to, and did, murder his wife. So that on the Crown case, as particularised, it was necessary for the Crown to prove the co-accused murdered the appellant’s wife and the appellant contracted him to do so. The Crown case which was put to the jury was that the husband as an accessory before the fact had procured the co-accused to do the killing. During his summing up the trial judge directed the jury that it was not open to them to bring in different verdicts in relation to the two men. Upon objection by the prosecutor, the trial judge withdrew this direction and told the jury that they could convict the husband if they were satisfied that he had arranged that someone should kill his wife, even if it was not the other man who stood trial with him. Prior to the judge giving this direction to the jury, the Crown had made it clear during the trial that it sought to prove that the applicant was guilty of murder only on the basis that he was an accessory before the fact of the killing of his wife by his co-accused, Matthews. It was on this basis that both the prosecution the defence cases at the trial were presented and conducted and it was on this basis that both the Crown prosecutor and counsel for the defence at the trial addressed the jury; and it was on this basis that the learned trial judge approached his summing up initially.[24] Both the Court of Criminal Appeal in that case[25] and the High Court[26] were of the opinion that such a late change in the course of the conduct of the trial amounted to a miscarriage of justice as the appellant had been deprived of an opportunity to deal with the alternate case that ultimately went to the jury; and the defence case had been conducted on a totally different basis.
Mr Elliott submits that the goal posts in this case have been moved, contrary to the particulars provided by the Crown, to a similar degree to which they were moved in King v The Queen and, therefore, there has been a miscarriage of justice in this case also.
The key elements of the offence in this case were set out in the aide memoir that his Honour Mildren J provided to the jury. The aide memoir stated as follows.
1.The accused is charged with a single count of attempting to pervert the course of justice between 2 May 2014 and 17 November 2014. The offence consists of a number of elements. In order to find that the accused is guilty, the prosecution must prove each of these elements beyond reasonable doubt.
2.The elements of the offence are as follows:
2.1    That between 2 May 2014 and 17 November 2014, the accused engaged in conduct, that is, he did one or more of the acts [which were specified in a schedule to the aide memoir].
2.2    The conduct engaged in by the accused had the tendency to frustrate or deflect an imminent, probable or possible prosecution which the accused contemplated may be instituted against Xana Kamitsis.
2.3    The accused intended that his conduct would frustrate or deflect that possible prosecution.
3.It is not necessary for the prosecution to prove that the police had formed a belief that Xana Kamitsis had committed a specific identifiable crime, the subject of a possible prosecution. It is enough that the police investigation into a number of travel agents including Xana Kamitsis could lead to prosecution for some offence.
4.Before you can convict you must be unanimous in finding beyond reasonable doubt that one or more of the acts specified in the schedule have been proven to meet each of the criteria specified in paragraph 2 above, and you must be unanimous about which one or more of those acts.
5.In relation to element 2.3 above, if you find that the accused engaged in the conduct for an improper purpose, that will be sufficient even if you consider that he may have additionally engaged in the conduct for a lawful or proper purpose. What must be shown is that one of the purposes for the accused to engage in that conduct was an improper purpose.
6.Whether or not the conduct relied upon succeeded in its aim is irrelevant. The question is whether it had the tendency referred to in paragraph 2.2 above when the conduct was engaged in.
7.When considering whether the Crown has proved element 2.2, it is necessary to consider the objective tendency of the conduct.
8.In considering paragraph 2.2, a mere tendency to delay an imminent, probable or possible prosecution is not, by itself, enough to convict. Similarly, a mere intention to delay a possible prosecution is not by itself enough.
9.The conduct alleged must have the objective tendency to deflect or frustrate an imminent, possible or probable prosecution. This requires proof that without further action by the accused, there is a real possibility or risk that what he said or did had the relevant objective tendency without more, in the sense that the accused actions alone had that tendency. The tendency of the conduct is not to be judged on the particular circumstances of this case, but by the risk that his conduct posed in the ordinary course. So, what you need to consider is whether the Crown has proved beyond reasonable doubt that in the ordinary course, what the accused did, had the relevant tendency to frustrate or deflect a possible, probable or imminent prosecution of Kamitsis. There are many ways in which conduct may have the tendency to pervert the course of justice. In cases of this kind, frustrating or deflecting a police investigation can give rise to the risk of that tendency if the accused hindered the ability of the police to invoke the court’s jurisdiction or hindered its ability to ascertain the truth of the facts to be presented to a court.

Mr Elliott told the court that the defence sought particulars from the Crown as to what constituted the objective tendency of the acts said to constitute the course of conduct that formed the offence of attempt to pervert the course of justice. In other words, the defence sought particulars of how the Crown contended the acts relied on as the relevant course of conduct had the requisite tendency. Mr Elliott said that in response to the request the defence was provided with the following particulars which are set out in ground 2 of the notice of appeal.
(a) The prosecution allege that the appellant engaged in conduct that had the tendency to pervert the course of justice in that he intentionally sought to frustrate and deflect a criminal investigation into suspected fraudulent activity in the conduct of the travel business, Winnellie Travel, by his intimate friend Alexandra Kamitsis and thereby attempted to pervert the course of justice.
(b) The principal means by which he did so is said to be:
(i)After being advised that Ms Kamitsis was the major target of a criminal investigation, failing to disclose the true nature of his relationship with Kamitsis and thereafter involving himself in the conduct of the criminal investigation knowing that it was improper for him to do so.
(ii)On 4 June 2014, frustrating the execution of a search warrant that had been issued and approved for execution on the business premises of Winnellie Travel in furtherance of the criminal investigation; and
(iii)between May and November 2014, undermining the criminal investigation by devising, implementing and championing an alternative to criminal prosecution for travel agents suspected of fraud (including Winnellie Travel and Kamitsis), namely the civil recovery of debt.
However, upon Mr Elliott raising a no case submission (at the end of the Crown case) the Crown case about the tendency of the accused’s acts that comprised the relevant course of conduct changed significantly. Rather than relying on the matters that had been particularised, the Crown started to rely on the problems caused by the reference aspect of Mr Payne’s plan and the risk of loss or destruction of evidence. Mr Elliott said that at no time prior to him making an application for a “no case” did the prosecution suggest that the tendency of the applicant’s course of conduct was to create a delay in the execution of the search warrant which was to be served on Kamitsis and Winnellie Travel which created a significant risk of evidence being lost or destroyed. A principal factor in creating this risk was the reference requirement established in the Joint Taskforce scheme that was created by Deputy Commissioner Payne. Accordingly, the defence case had been directed to establishing that the matters particularised by the Crown at [26] above were not proven by the evidence led by Crown.
As a result of the particulars provided by the Crown, the defence case and the questioning of witnesses called by the Crown concentrated on:
I.    The words used by the appellant in purportedly frustrating the execution of the search warrant; and
II.   whether the appellant had devised, championed and implemented the scheme or had merely offered up options;
III.    whether criminal investigations continued after 2 May 2014; and
IV.    Whether the scheme was an alternative to criminal investigation, or whether criminal investigations continued in parallel with the civil recovery aspects.
Consequently, the defence were deprived of an opportunity to meet the Crown case that ultimately went to the jury.
In considering the applicant’s case on bail, it is useful at this stage to consider the trial judge’s summing up of both the Crown and the defence cases to the jury. His Honour Mildren J ultimately distilled the Crown case as follows.
The Crown case, in a nutshell, depends upon you accepting the following propositions. First, that the accused was in a very close personal relationship with Ms Kamitsis which included, at the very least, that the relationship had been a sexual one. The Crown says it was still continuing to be sexual in 2014.
That the accused did not want the full extent of the nature of that relationship disclosed because this would be embarrassing to him and also to her. Indeed, it may have had, the Crown says, not only caused personal embarrassment so far as the accused is concerned but it may have led to an enquiry into his behaviour…
The Crown says that he was in a position of conflict of interest and should not have had anything to do with the investigation into Winnellie Travel once he realised that Ms Kamitsis was a major target...
It could have been, for example, that he could have said, on the Crown case, “Look, I cannot have anything to do with Winnellie Travel. If you want my help, I can deal with all the other matters in the PenCon scheme because I am not conflicted on them but you’re going to have to go away and do the PenCon travel business relating to Winnellie Travel without my help.”
But he continued to be engaged in that investigation and, indeed, the investigation of the whole scheme throughout the relevant period when he ought not to have done so.
That when he found out that there was a search warrant about to issue against Ms Kamitsis’ business premises, he realised that it was likely that the police would seize her mobile phone and, in fear that the mobile phone would contain messages that would reveal embarrassing information [– y]ou may remember that he was also told, that is the accused was also told, that it was likely that she would be arrested [– t]he Crown case is that from thereon he embarked upon a course of conduct which was designed to prevent the police from executing a search warrant on her premises.
Now, if we go back to the elements of the offence which are set out in the aide memoir, you need to consider the various elements and whether they have been proved beyond reasonable doubt. The first of those elements, just to remind you, is that the accused engaged in one or more of the acts specified in the schedule.
I have taken you through the evidence relating to each of those acts. You need to make findings about whether the Crown has proven those acts beyond reasonable doubt and, if you find that the Crown has proven those acts beyond reasonable doubt, then the next question is whether that conduct engaged in by the accused had the tendency to frustrate or deflect an imminent, probable, or possible prosecution which the accused contemplated may be instituted against Xana Kamitsis; [of] relevance, of course, [is] the evidence that he had been told that it is likely that she would be arrested.
The Crown then says that from thereon, the accused embarked upon a course of conduct which was designed to prevent the police from executing a search warrant on her premises and that his motive for doing so was to prevent knowledge of that relationship from coming out or perhaps to protect her from an investigation which would attract significant publicity, bearing in mind that she was a prominent member of the community and a chair of the Neighbourhood Watch and his close personal friend.
The Crown says that he designed and promoted a scheme which would stop the police from executing a search warrant on her business premises and that a search warrant, the Crown says, is an orderly tool in any police fraud investigation which is likely to reveal information which would assist the police in the prosecution of an individual, particularly Ms Kamitsis, because it would help the police to prove who was personally responsible for the fraud; so, that in the ordinary course, it would frustrate and deflect the police from bringing criminal proceedings.
So, when you look at the second element, you need to ask yourself, [“]has the Crown proved that the conduct engaged in by the accused had the tendency to frustrate or deflect an imminent, probable or possible prosecution which the accused contemplated may be instituted against Xana Kamitsis[?”]. So, that is what the Crown needs to prove.
You will remember that I told you that whether or not the conduct succeeded in its aim is irrelevant. The question is whether it had the tendency to bring about the frustration or deflection of an imminent, probable or possible prosecution which the accused contemplated may be instituted against her. So, when considering that element, you must consider the objective tendency of the conduct. You look at it objectively and ask yourself, “Is that conduct likely, in the ordinary course of things, to have a tendency to frustrate or deflect an imminent, probable or possible prosecution?”
You may remember I said to you that the tendency of the conduct is not to be judged on the particular circumstances of this case, but by the risk that the conduct posed… in the ordinary course. And you need to consider whether, without further action by the accused, there was a real possibility or risk that what he said or did had that objective tendency without more. So, I’ll repeat to you what I said earlier, that mere delay is not enough. They have got a show more than that.
Now, the Crown case is that there was such an objective tendency because there was a risk that if the warrant was stopped, evidence would not be available to the police to prosecute her which would assist in proving that she was personally responsible for dishonesty, whether it be stealing, or fraud, in the nature of obtaining a benefit by deception, because if the warrant was stopped, there was a risk that financial records, records of travel arrangements and so on which might lead to proof of a crime might be lost, destroyed or changed. And if, of course, the phone was one of the objects of a warrant, you might expect to find on the phone evidence of the personal involvement of Ms Kamitsis in her business dealings.
Now, the Crown says that he could not simply order that the warrant be stopped because that would have given the game away. So, he had to adapt his tactics to achieve the same effect and that he did this by suggesting that the matter was more of a civil matter than a criminal matter and by promoting civil remedies, and that one way of doing this was to promote the idea of a Joint Taskforce which would lead to recovery of the monies in the hands of the Department of Health and provide the records that the Department of Health needed without the need for search warrants. So, search warrants would not be required because there would be cooperation.[27]
Pausing there, it is potentially significant to note that in the Crime Command Critical Decision document at 93 – 342 of Exhibit P1 (the White Book) there is a note for 4 June 2014 that “JMC approval for search warrant execution at Latitude Travel (trading as Winnellie Travel Pty Ltd) is withdrawn.” So initially the objective was achieved. It was so, even though ultimately a warrant did issue on Latitude Travel.
The Crown says that he approved the Taskforce plan developed by Mr Payne because, although the plan envisaged the police investigations into the top eight would continue, the investigation would not need to go overt for the reason that I have put to you. The Crown case is that he hoped that she would cooperate with the Taskforce, and therefore, the search warrants would not be necessary. So that, in a nutshell, is the Crown case.[28]
His Honour Mildren J summarised the defence case as follows.
The defence case, in a nutshell, is this; that although the accused was conflicted, he had no choice but to remain in the investigation. Conflict-of-interest did not make his remaining in the investigation unlawful. He told police members about his friendship with Xana Kamitsis. No one suggested to him that he should withdraw from the investigation. It was put to you, that that if he was hiding his relationship with her, it might have been immoral, but it was not unlawful, and he is not on trial for immorality.
It was put that, as a Commissioner, he would be held accountable if the investigation into all of the travel agents went sour, as had happened on the previous occasion when he felt that his position was threatened… Mr Elliott put it to you that he was not conflicted so far as the other travel agents were concerned. It was put that this was a very unusual investigation which would require massive resources and had significant implications for the travel industry, the Department of Health, and also had political implications as part of the big picture.
It was put that the accused was involved because his assistant Commissioners came back to him, asking for his guidance. It was put that if he withdrew from the investigation, he would still not be able to disconnect from his association from Ms Kamitsis without being in a position where she would want to know why. It was put that the senior police involved, including Kershaw and Payne, were relying upon him for leadership advice and approval of resources, and he did not have a full-time deputy, an experienced deputy, to whom he could have delegated those functions; and also, that nothing he actually did at that stage stopped the investigation into Kamitsis.
It was put that the investigation got nowhere by June 2014, with only evidence to support one charge for a few thousand dollars at most. If it went overt, this would have signalled to the others that they were all suspects. It was put that you cannot infer that he called a meeting on 23 June 2014. It was submitted that [it] was more likely that someone else had arranged for this meeting to be called and you were reminded that the accused did not check up on the PROMIS and that is an agreed fact.
It was put that the accused did not give any instructions to stop the warrant and did not tell Ms Kamitsis that she was being investigated. It was put that the accused’s reasons for being critical of the police investigation were not unreasonable; that when you do not have all of the information, it is not unreasonable to ask questions. And not only is it objectively not unreasonable, but the police he was dealing with, like Payne and Kershaw, did not think that the questions were unreasonable either.
It was put that the police had not been successful in gaining cooperation of the Department of Health and that a Joint Taskforce would force their cooperation. The Taskforce, it was put, was effective. It was put that reasonable minds might have different opinions as to how to approach the solution to complex problems, and whilst some people might think that it was better to go overt at the stage when the police had decided to issue a warrant against Winnellie Travel, it was quite a reasonable position to take that it was far too early to go overt.
It was put that he at no stage prohibited the issue of a search warrant on Kamitsis’ premises.... It was put that there was nothing unusual in him speaking to Dr Notaras about the PenCon scheme in May 2014 as Dr Notaras was a new CEO. So, it was put that the accused’s acts, were they looked at singularly or in combination, did not amount to acts which had the tendency to frustrate or deflect an imminent, probable or possible prosecution which he contemplated, may be instituted into Kamitsis.
It was put, for instance, [“]how is it that the reading the file could possibly have a tendency to frustrate or deflect the investigation[?”]. Surely, if he was intending to brief the Ministers, it was necessary for him to have read the file. It was put that his acts, when looked at either separately or collectively, showed that what he did was a reasonable response to the problem that he faced, particularly in light of the facts that were presented for him from time to time by the investigators.
It was put that it cannot be proven that he intended to deflect or frustrate a criminal prosecution against Kamitsis because what he did promoted that investigation. Mr Elliott said that the accused did not suggest to the Ministers that the matter proceed in any particular way. He gave them options and it was the Ministers themselves who chose their own Taskforce.
It was put that if the accused had wanted to undermine the investigation, he could have supported a media release or a question in Parliament which would have tipped her off and yet he did not do so. It is not plausible, it was said, that the accused would attempt to derail the biggest fraud investigation in the Northern Territory’s history just to stop the police from getting her phone.
It was put that the scheme was implausible – this is the scheme which the Crown says he engineered – because it had enormous personal risks at every level and could very easily have come unravelled. And it was put that it would have been very simple for the evidence on her phone relating to their relationship to have been deleted if that was what was motivating him. All he had to do was say to Ms Kamitsis, “Please delete all messages on your phone.”
And you might remember what he said about that and you might think, “But surely, if he had come to her and said that, she might have asked him ‘Why on earth are you asking me to do that?’” And do you think that she would be the kind of person, when you look at the emails, to have been easily brushed off? That is up to you.
Also it was put that there is no evidence that the accused told her that she was being investigated and what Mr Elliott put to you, in short, is that what the accused did was his duty in difficult circumstances. He was in no way motivated to deflect or frustrate an imminent, probable or possible prosecution and that what he did, on the contrary, was to assist and promote those who are guilty of crimes to be prosecuted and that the Taskforce arrangement which the Ministers promoted and which he supported in every way was, in fact, a very effective mechanism for achieving a resolution to a quite difficult problem.[29]
If his Honour Mildren J’s summary of the Crown case is a fair summary, and at this point in the appeal it is difficult to see that it is not, it is unclear that the goalposts have been moved sufficiently to constitute a miscarriage of justice. Further, the defence case seems to have fully met all of the issues raised by the Crown case as it stood when it ultimately went to the jury. The Crown case was not that the applicant planned every step in his course of conduct from the very beginning but rather that he responded as things developed. Further, so far as the second element of the offence is concerned, it was not necessary for the Crown to prove that the applicant achieved his objectives. Rather it was necessary for the Crown to prove that at the time the applicant engaged in the relevant conduct the conduct, looked at objectively, had the relevant natural tendency.
At this stage of the appeal, it is difficult to see how asking detailed questions about the mechanics of the referral process as designed by Deputy Commissioner Payne, or the understanding of other witnesses about the referral process would have added a great deal to the defence case; or, on the contrary, why such questions weren’t asked of anyone who may have had a misconception about the operation of the referral process, in any event, simply to demonstrate that there had not been an improper deflection or frustration of the investigation into Ms Kamitsis. The manner in which the Joint Taskforce came into being and operated was thoroughly canvassed by Mr Elliott in accordance with the defence case, which was that both the civil proceedings and police investigations, including investigations into the top eight travel agents operated in parallel, and that Ms Kamitsis was treated no differently to any other travel agent.
In the circumstances, at this stage of the appeal process, I am not able to form a proper or adequate view about the applicant’s prospects of success on the ground relied on in this application. It is not clear to me to the requisite degree that there has been a miscarriage of justice.

Further, while the applicant will have served a third of his sentence by the time the appeal comes on for hearing, I am not satisfied that in all of the circumstances of this case that special or exceptional circumstances have been established. I am not persuaded that any risk of injustice rises to the requisite degree.
Having so found for the purpose of this application, I am not at all suggesting that the ground of appeal which is the subject of this application is hopeless or that it cannot be further developed or constructed and put before the court in a different way.
It is for these reasons that the application for bail is dismissed.

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[1]R v Giordano (1982) 31 SASR 241 at 243 (King CJ); 6 A Crim R 397.

[2]Robinson v The Queen (1991) 65 ALJR 519; Chew v The Queen [No 2] (1991) 66 ALJR 221; R v Wilson (1994) 34 NSWLR 1 at 6 – 7; 73 A Crim R 532 (‘Wilson’); Peters v The Queen (1996) 71 ALJR 309; [1997] 2 Leg Rep C2b; Parsons v The Queen (1998) 72 ALJR 1325; Marotta v The Queen (1998) 160 ALR 525; (1999) 73 ALJR 265; [1999] HCA 4 (‘Marotta’); Weston v The Queen (2000) 16 LegRep C2; Sullivan v Director of Public Prosecutions (2000) 17 LegRep C13; Velevski v The Queen (2000) 18 LegRep C2; Caratti v The Queen (2001) 1 LegRep C1; Sinanovic v The Queen (No 1) (2001) 179 ALR 520; 122 A Crim R 524; [2001] HCA 35; United Mexican States v Cabal (2001) 209 CLR 165 at 181 (Gleeson CJ, McHugh and Gummow JJ); 183 ALR 645; 75 ALJR 1663; [2001] HCA 60 (‘Cabal’).

[3]Ex Parte Maher [1986] 1 Qd R 303 at 312 (Thomas J); (1985) 19 A Crim R 177 (‘Maher’); Re Jackson [1997] 2 VR 1 at 2 (Callaway JA); Re Pennant [1997] 2 VR 85; Brent v The Queen (1994) 70 A Crim R 1 at 3 (Scott J).

[4]Maher [1986] 1 Qd R 303 at 311 (Thomas J).

[5]Willers v The Queen (Bail Application) (unreported, WACCA, BC9503653, 7 June 1995) at 5.

[6]Re Clarkson [1986] VR 583 at 585 (Murray, Brooking and Vincent JJ); see also Re Jackson [1997] 2 VR 1 at 3 (Callaway JA); Willers v The Queen (unreported, WACCA, BC9503653, 7 June 1995); Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241 at 243, 247 – 248 (Jerrard JA, Dutney and Philippides JJ); [2003] QCA 409 (‘Hanson’).

[7]Wilson (1994) 34 NSWLR 1 at 6 (Kirby J).

[8]Ibid.

[9]Bail Act 1982 (NT), s 23A. See equivalent provisions, e.g. Bail Act 1992 (ACT), s 9E; Bail Act 1982 (WA), Sch 1, Pt C, Cl 4A.

[10]Wilson (1994) 34 NSWLR 1 at 6 – 7.

[11]Marotta (1998) 160 ALR 525 at 528 (Callinan J).

[12]Re Pennant [1997] 2 VR 85 at 87 (Winneke P).

[13]Chew v The Queen [No. 2] (1991) 66 ALJR 209 at 210 (McHugh J); R v Abbott (1997) 97 A Crim R 19 at 27 (Gillard J).

[14]J Willis, ‘Bail Pending Appeal after Conviction and Sentence on Indictment’ (2005) 29 Crim LJ 296, 304 – 308 (‘Willis’).

[15]Maher [1986] 1 Qd R 303 at 310 (Thomas J); Cabal (2001) 209 CLR 165 at 181 (Gleeson CJ, McHugh and Gummow JJ); Re Zoudi (2016) 14 VR 580 at [28].

[16]Cabal (2001) 209 CLR 165 at 181 (Gleeson CJ, McHugh and Gummow JJ); Maher [1986] 1 Qd R 303 at 310 (Thomas J).

[17]Chamberlain v The Queen [No. 1] (1983) 153 CLR 514 at 519 – 520 (Brennan J); 57 ALJR 356; [1983] HCA 13; Re Jackson [1997] 2 VR 1 at 4 (Callaway JA); Hanson (2003) 142 A Crim R 241 at 243 (Jerrard JA, Dutney and Philippides JJ); cf Marotta (1998) 160 ALR 525 at 526 (Callinan J); Doggett v The Queen (Bail Application) (Unreported, High Court, Callinan J, B 54/2000, 2 November 2000).

[18]Willis, above n 14.

[19]Ibid at 305.

[20][2017] VSCA 170.

[21](2006) 14 VR 580; 168 A Crim R 444; [2006] VSCA 298.

[22](1986) 161 CLR 423; 67 ALR 379; 60 ALJR 685; 21 A Crim R 436; [1986] HCA 59 (‘King’).

[23]Ibid at 425 (Murphy J); Johnson v Miller (1937) 59 CLR 467 at 489 (Dixon J); 11 ALJR 344b; [1938] ALR 104; [1937] HCA 77.

[24]Ibid at 430 – 432 (Dawson J).

[25]King v The Queen (1985) 17 A Crim R 184.

[26]King (1986) 161 CLR 423.

[27]Transcript of Proceedings, R v John Ringland McRoberts (SCC 21616999) (Supreme Court of the Northern Territory, 30 May 2018) at T1859 – T1862.

[28]Ibid at T1682.

[29]Ibid at T1862 - T1864