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Obeid v R (No 2)

Obeid v R (No 2)

Case [2016] NSWCCA 321 20 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Obeid v R (No 2) [2016] NSWCCA 321
Hearing dates: 20 December 2016
Date of orders: 20 December 2016
Decision date: 20 December 2016
Before: Bathurst CJ; Hoeben CJ at CL; R A Hulme J
Decision:
Bail refused

Catchwords: CRIMINAL LAW – procedure – bail – application for release on bail pending appeal– whether special or exceptional circumstances exist justifying a decision to grant bail – various factors relied upon – age and ill-health – level of uncertainty in area of law that is the subject of one ground of appeal – significant proportion of custodial sentence likely to be served before appeal finalised – whether sufficient prospects of a successful appeal – majority of proposed grounds of appeal concern points that should have been raised at trial – no explanation given for failure to raise at trial – special or exceptional circumstances not shown – bail refused
Legislation Cited: Bail Act 2013 (NSW), ss 17, 18, 19, 20, 22, 61, 62
Criminal Appeal Act 1912 (NSW) s 10(2)(b)
Criminal Appeal Rules (NSW) r 4
Cases Cited: El-Hilli and Melville v R [2015] NSWCCA 146
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Obeid v R [2016] HCASL 86
R v Kugor [2015] NSWCCA 14
R v Obeid (No 12) [2016] NSWSC 1815
R v Obeid (No 13) [2016] NSWSC 1840
Trinh v R [2016] NSWCCA 110
Category: Procedural and other rulings
Parties: Edward Moses Obeid (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Reynolds SC / D Hume (Applicant)
M McHugh SC/ B Narula (Respondent)
Solicitors:
Breene & Breene (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/376130
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law - Criminal

Citation:

[2016] NSWSC 1840

Date of Decision:

15 December 2016

Before:

Beech-Jones J

File Number(s):

2015/53925

Judgment

THE COURT: Edward Moses Obeid ("the applicant") was found guilty by a jury on 28 June 2016 of the common law offence of wilful misconduct in public office. On 15 December 2016 he was sentenced by Beech-Jones J to imprisonment for 5 years with a non-parole period of 3 years: R v Obeid (No 12) [2016] NSWSC 1815. The non-parole period will expire on 14 December 2019.
A Notice of Intention to Appeal or to Apply for Leave to Appeal in respect of conviction was filed on 29 June 2016. A further such notice in respect of sentence was filed on 19 December 2016.
The applicant was represented at his trial and in the sentence proceedings by Mr B Hughes SC and Ms N Mikhaiel. They withdrew upon sentence being pronounced and Mr G Reynolds SC with Mr D Hume then announced their appearance. A bail release application was made there and then but it was refused: R v Obeid (No 13) [2016] NSWSC 1840.
The application before Beech-Jones J was made on the basis that an appeal was pending but the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Obeid v R (No 2)

Details

AGLC: Obeid v R (No 2) [2016] NSWCCA 321
Case: [2016] NSWCCA 321
Decision Date: 20 December 2016

CaseChat Overview and Summary

The parties involved in this appeal are Obeid, the appellant, and the respondent, the Crown. Obeid was convicted on several charges and sentenced to imprisonment. He now seeks to be released on bail pending the outcome of his appeal against the conviction and sentence. The court was required to decide whether special or exceptional circumstances exist to justify granting bail in this case. Various factors were considered, including Obeid's age, health, the level of uncertainty in the area of law that is the subject of one ground of appeal, and the significant proportion of the custodial sentence likely to be served before the appeal is finalised. Additionally, the court considered whether there are sufficient prospects of a successful appeal.

The court found that the majority of the proposed grounds of appeal concerned points that should have been raised at the trial. Obeid provided no explanation for his failure to raise these points at the trial. The court concluded that special or exceptional circumstances had not been shown. Consequently, the application for bail was refused. The court carefully weighed the various factors and determined that the balance did not favour granting bail in this instance.

Orders