R v Obeid (No 13) - [2016] NSWSC 1840

Supreme Court

New South Wales

Medium Neutral Citation: R v Obeid (No 13) [2016] NSWSC 1840
Hearing dates: 15 December 2016
Date of orders: 15 December 2016
Decision date: 15 December 2016
Before: Beech-Jones J
Decision:
Bail refused

Catchwords: BAIL – application for bail pending appeal to Court of Criminal Appeal – offender sentenced to imprisonment following trial – bail immediately applied for – need to show special or exceptional circumstances – various factors relied on – non-custodial sentence will not expire before appeal determined – age, health and other factors relied on – prospects of appeal – almost all grounds not taken at trial – appeal prospects no higher than reasonably arguable – special or exceptional circumstances not shown – bail refused
Legislation Cited: Bail Act 2013 (NSW)
Constitution (Disclosure by Members) Regulation 1983 (NSW)
Constitution Act 1902 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Egerton v Brownlow [4 HLC 1 at 161]
El-Hilli and Melville v R (2015) NSWCCA 146
Horne v Barber [1920] HCA 33; 27 CLR 494
Obeid v R (No 11) [2016] NSWSC 974
Obeid v R [2015] NSWCCA 309
Peters v R (1998) 192 CLR 493
R v Boston [1923] HCA 59; 33 CLR 386
R v Ghosh (1982) QB1 1053
R v Macleod (2003) 214 CLR 230
R v Obeid (No 12) [2016] NSWSC 1815
R v Obeid (No 2) [2015] NSWSC 1380
R v Quach [2010] VSCA 106; 201 A Crim R 522
Wilkinson v Osborne [2015] HCA 92; 21 CLR 89
Category: Consequential orders (other than Costs)
Parties: Regina (Crown)
Edward Moses Obeid (Offender)
Representation:
Counsel:
P Neil SC (Crown)
G Reynolds SC; D Hume (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Breene & Breene (Offender)

File Number(s): 2015/53925

EX TEMPORE Judgment (REVISED FROM TRANSCRIPT)

HIS HONOUR: This morning I delivered sentence in these proceedings and published reasons accordingly: R v Obeid (No 12) [2016] NSWSC 1815 (“Obeid No 12”). This judgment should be read together with Obeid No 12.
I sentenced the applicant for bail, Edward Moses Obeid, to a term of imprisonment for five years with a non-parole period of three years.
Immediately on the publication of those reasons, an application was made to me for bail pending the hearing and determination of Mr Obeid's appeal to the Court of Criminal Appeal against his conviction. I have been advised that a notice of intention to appeal has already been filed.
I should add that I was on notice, from yesterday, of the possibility that this application might be made. I was offered the opportunity to review the written submissions in support of the application. Given that it was inevitable that they would traverse matters that occurred at the trial and that my sentencing judgment was also addressing, I considered it was not appropriate to consider them at that stage.
During the course of argument Senior Counsel for Mr Obeid, Mr Reynolds SC, foreshadowed that his client's appeal would extend…

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 R v Obeid (No 13)

Details

AGLC: R v Obeid (No 13) [2016] NSWSC 1840
Case: [2016] NSWSC 1840
Decision Date: 15 December 2016

CaseChat Overview and Summary

The applicant, Mr Obeid, applied for bail pending the determination of an appeal to the Court of Criminal Appeal against a conviction and sentence. Mr Obeid had been found guilty following a trial and sentenced to imprisonment. The legal issues the court was required to decide included whether Mr Obeid had shown special or exceptional circumstances warranting bail pending appeal. Various factors were relied upon, including the prospect of a non-custodial sentence, Mr Obeid’s age, health, and other personal circumstances, and the prospects of the appeal succeeding. The court considered that almost all the grounds of appeal had not been taken at the trial, and the prospects of success on appeal were no higher than reasonably arguable. The court found that Mr Obeid had not shown special or exceptional circumstances warranting bail pending appeal, and the application was refused.

Orders