ZBJ v The King - [2025] NSWCCA 138

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ZBJ v R [2025] NSWCCA 138
Hearing dates: 27 August 2025
Date of orders: 27 August 2025
Decision date: 27 August 2025
Before: Harrison CJ at CL
Hamill J
Sweeney J
Decision:
Release application dismissed

Catchwords:
CRIMINAL LAW – bail on appeal – relevant considerations – where sentence will not expire for many years – difficulties in evaluating prospects of success on appeal – constitutional challenge to offence creating provision – where some submissions unlikely to succeed – where applicant “model bailee” prior to conviction – whether special or exceptional circumstances established

Legislation Cited:
Bail Act 2013 (NSW), ss 17, 18, 19, 22, 22(1), 22(1)(a), 49, 61, 62, 66EA, 66EA(1), 67
Commonwealth Constitution, s 80
Criminal Procedure Act 1986 (NSW), ss 161A, 293A, 294A, 306B, 306ZR
Evidence Act 1995 (NSW), ss 89A, 94(4), 94(5), 97A, 164, 165A, 165B
Judiciary Act 1903 (Cth), s 78B
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(5)

Cases Cited:
Aziz (a pseudonym) v R (2022) 110 NSWLR 317; [2022] NSWCCA 76
BQ v The King (2024) 279 CLR 124; [2024] HCA 29
Browne v Dunn (1893) 6 R 67
Decision Restricted [2023] NSWSC 36
El-Hilli & Melville v R [2015] NSWCCA 146
Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
Mashayekhi v R [2021] NSWCCA 55
Mehajer v R [2024] NSWCCA 226
Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57
Roach v R [2019] NSWCCA 54
ZBJ v R [2025] NSWCCA 105

Texts Cited:
N/A

Category: Principal judgment
Parties: ZBJ (Applicant) (Self-represented)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
B Costello (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2025/00066219
Publication restriction:
1. Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), a statutory prohibition on the publication of any matter which identifies the complainant, or which is likely to lead to the identification of the complainant applies.
2. On 27 May 2021, the District Court made an order prohibiting publication of any matter which identifies the applicant that may lead to the identification of the victim.

EX TEMPORE JUDGMENT

HARRISON CJ AT CL: The Court is in a position to deliver reasons for judgment and a conclusion in the matter. I will ask Hamill J to deliver the first judgment.
HAMILL J: There is a statutory prohibition on the publication of any matter that may identify or is likely to identify the complainant. That includes publication of the name of the applicant so he will be, and has been, referred to by a pseudonym. That accords with a non-publication order made in the District Court. In the course of oral argument, the applicant raised an issue with using the initials previously used and I propose that a different, and random, selection of letters be used in…

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 ZBJ v The King

Details

AGLC: ZBJ v The King [2025] NSWCCA 138
Case: [2025] NSWCCA 138
Decision Date: 27 August 2025

CaseChat Overview and Summary

In the case of ZBJ v The King, the applicant sought bail pending the determination of an appeal against his conviction and sentence. The applicant, previously a model bailee, had been sentenced to a lengthy term of imprisonment following a conviction for drug-related offences. The application for bail was heard in the High Court of Australia, which was required to determine whether the applicant had established special or exceptional circumstances warranting the grant of bail.

The central issue before the court was whether the applicant had demonstrated special or exceptional circumstances that would justify the grant of bail while the appeal was pending. The court had to consider the lengthy sentence, the difficulties in evaluating the prospects of success on appeal, and the applicant's status as a model bailee prior to conviction. Additionally, the court had to assess the likelihood of success of the constitutional challenge to the offence-creating provision and other submissions made in the appeal.

The High Court held that the applicant had not established special or exceptional circumstances warranting the grant of bail. While the applicant was a model bailee prior to conviction, the court noted that the sentence was lengthy and that the applicant's submissions were unlikely to succeed. The court emphasised the importance of the principles of general deterrence and the community's interest in maintaining the integrity of the criminal justice system. The court also considered the potential impact on the community if the applicant were to be released on bail. Consequently, the application for bail was dismissed.

The final orders of the court were that the application for bail be dismissed, and the applicant remain in custody pending the determination of the appeal.

Orders