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

1. 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.

2. 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 the publication of this judgment. I will call the applicant ZBJ.

3. ZBJ makes a release application pursuant to s 49 of the Bail Act 2013 (NSW). That application is opposed by the Director of Public Prosecutions.

4. The applicant stood trial in the District Court sitting in Sydney between 31 January 2022 and 23 February 2022 before her Honour Judge Culver and a jury. He was charged with a single count of maintaining an unlawful sexual relationship with a child under the age of 16 years. That is an offence against s 66EA(1) of the Crimes Act 1900 (NSW) carrying a maximum penalty of life imprisonment. The offence was allegedly committed against the applicant’s daughter between 1 January 2007 and 17 May 2008.

5. On 23 February 2022, the jury returned a verdict of guilty. On 4 November 2022, Judge Culver sentenced the applicant to 18 years imprisonment with a non-parole period of 11 years. The sentence was backdated to commence on 23 February 2022, that is the day of the verdict and when the applicant was taken into custody on a detention application made by the prosecution. ZBJ was on bail from the time he was charged until the day of the verdict. As things stand, ZBJ will first become eligible for release to parole on 22 February 2033.

6. On 25 November 2022, the applicant filed a notice of intention to appeal (“NIA”) against both the conviction and the sentence. Pursuant to r 3.1(3) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“the Rules”), the NIA lapsed on 25 November 2023. The applicant filed his notice of appeal (or application for leave to appeal) on 4 December 2024. Because the NIA had lapsed, ZBJ was required to seek an extension of time. The preponderance of authority is that, for the purpose of relevant provisions of the Bail Act including s 61, there were no “proceedings for the offence pending in the court”: Mashayekhi v R [2021] NSWCCA 55 and Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57.

7. On 14 July 2025, a differently constituted bench of this Court (Garling, Wright and Yehia JJ) considered an application to allow ZBJ to make his appeal out of time. The Court granted leave pursuant to r 3.5(5) and listed the matter for directions before the Registrar on 24 July 2025: ZBJ v R [2025] NSWCCA 105.

8. The application for leave to appeal outside of the time for filing provided by the Rules was heard in advance of, and separately from, the substantive appeal for two reasons. First, one of the proposed grounds of appeal asserts that the provision in s 66EA of the Crimes Act is unconstitutional. This meant that if leave was granted to appeal out of time, the operation of s 78B of the Judiciary Act 1903 (Cth) would be enlivened. Accordingly, the appeal could not proceed “unless and until the requisite notices [were] given in accordance with that section and a reasonable time ha[d] elapsed for consideration by the Attorneys-General”. Secondly, the applicant sought to make a release application pursuant to the provisions of the Bail Act. Because the NIA had lapsed, this Court had no jurisdiction to hear the application because there were no “proceedings for the offence pending before the Court”: ss 61, 62 and 67 of the Bail Act.

9. Now that leave has been granted, there are proceedings pending before the Court, and this Court has jurisdiction to hear the release application. Written submissions were filed, and the release application was heard this morning. It was stood down for decision so that another appeal could be heard.

10. Section 22 of the Bail Act provides a “general limitation on the Court’s power to grant bail”. The section applies in relation to an offence where there is an appeal to this Court against a conviction on indictment or an application for leave to appeal against a sentence imposed on such a conviction: s 22(1)(a). Accordingly, s 22 applies to the present application.

11. Section 22(1) provides that the Court is not to grant bail “unless it is established that special or exceptional circumstances exist that justify that bail decision”. The “special or exceptional circumstances” test applies instead of the show cause requirement if such a requirement would otherwise apply to the relevant offence. In addition, the unacceptable risk test in ss 17-19 of the Bail Act applies to an application that is subject to s 22.

12. What may constitute “special or expectational circumstances” is not something that can be predicted in advance. In El-Hilli & Melville v R [2015] NSWCCA 146, I discussed at [15]-[29] (with the concurrence of Simpson and Davies JJ) the history of “appeals bail” and the content of the special or exceptional circumstances test. The Court rejected at [24]-[25] the suggestion made in some cases that an applicant was required to show that their appeal “was almost certain to succeed” or would “inevitably succeed”. At [29], I said:

“‘Special or exceptional circumstances’ may exist in the combination of factors or in ‘the coincidence of a number of features’: cf the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20] when dealing with the requirement to establish ‘exceptional circumstances’ in a murder case under the 1978 Act. It is not possible to determine or predict in advance what those features may be. Two features that frequently arise are (i) the merit of the appeal and (ii) the possibility that the applicant will have served their sentence or non-parole period, or a substantial part of it, before the appeal is determined.”

13. Those observations have been adopted in several subsequent decisions including, for example, Roach v R [2019] NSWCCA 54, HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 (“HT v DPP”), Decision Restricted [2023] NSWSC 36 and Mehajer v R [2024] NSWCCA 226. In Mehajer v R, Yehia J at [41] adopted the following observations made in HT v DPP (Hamill J, with Bathurst CJ and Bell P agreeing):

“…four things may be observed. First, s 22 creates a significant hurdle to an applicant for bail who is pursuing an appeal against a conviction or sentence in proceedings prosecuted on indictment. Secondly, unlike the ‘show cause’ requirement in ss 16A and 16B of the Bail Act 2013, s 22 incorporates the exhaustive list of factors in s 18 that guide a consideration of whether there is an unacceptable risk in releasing an offender to bail. Third, ‘special or exceptional circumstances’ may exist as a result of a combination of circumstances or features of a case. It is not necessary to establish that the appeal is almost certain to succeed. Fourth, two commonly arising considerations are whether the appeal is arguable or enjoys reasonable prospects of success and whether the sentence the subject of the appeal is likely to expire before the appeal is determined.” (Footnotes omitted.)

14. The authorities emphasise that the two most pertinent factors in considering a release application to which s 22 applies are first, the prospects that an applicant may have served all or most of their sentence before the appeal is heard or determined and, second, the prospect that the appeal will succeed. The first of those factors is usually reasonably clear or predictable. The second is far more predictive and often difficult to assess in the early stages of the appeal process. However, other factors may either individually or in combination amount to special or exceptional circumstances in a given case.

15. As to the first of those most commonly occurring factors, there is in this case no likelihood that the applicant will have served all or most of his sentence before the appeal is heard. The non-parole period imposed by the District Court will not expire until 22 February 2033 and the total sentence will not expire until around 2040. During the hearing this morning, it emerged that the s 78B notices have now been served and several of the Attorneys-General have indicated they do not wish to intervene or take any step to have the matter removed to the High Court. While it is not possible to predict this with any certainty, it seems there will not be an extensive delay in the hearing of the appeal resulting from the constitutional challenge to s 66EA.

16. In the absence of any realistic chance that ZBJ will have served all or most of his sentence before the appeal is resolved, and putting aside any quite exceptional features of the case, to establish special or exceptional circumstances, the applicant needs to establish that his prospects of succeeding on appeal are very good: cf Roach v R at [3]. I will return to consider those proposed grounds of appeal, or some of them, in due course.

17. However, before I do so, the applicant relies on other matters in support of the release application. The Court must also consider those matters in deciding whether the combination of circumstances relied on by ZBJ amount to special or exceptional circumstances justifying the grant of bail. Many of those matters are relevant under s 18 of the Bail Act and go to an assessment of the risk of ZBJ being released to bail.

18. Most significantly, the applicant correctly points to the fact that he had bail in the period leading up to his trial and it is not suggested that he did other than comply with the conditions of bail. In fact, there is a letter from New South Wales Police confirming just that. There were no incidents, no suggestion of any risk to the complainant or other family members, and no evidence of any breaches of bail or manifestations of any of the relevant bail concerns identified in s 17 or the kinds of risks identified in s 19 of the Bail Act.

19. As the applicant puts it in his written submissions, on the evidence to this point, “he is a person who will answer bail”. As he said in oral argument today, he was a “model bailee” during the remand period.

20. Against that, as the respondent submitted, it is now the case that the applicant is aware of the consequences of the finding of guilt. Further, the presumption of innocence was removed by the jury’s finding of guilt and the burden of persuasion on the appeal will shift to the applicant. That is one of the reasons that the prospects of the appeal succeeding is such a significant factor in determining whether an applicant who has been convicted has established that there are special or exceptional circumstances justifying a decision to grant bail.

21. I accept the applicant’s submission that the preparation of a complex appeal will be more difficult if he remains in custody pending the hearing of the appeal. That is particularly so when he has chosen to represent himself. However, on this application, he has proven himself quite capable of representing himself even with the difficulties of his current confinement.

22. I am not convinced, on the other hand, that denying the applicant bail will, as he submits, infringe upon his “constitutional right to self-representation” or that this right will be “seriously encumbered” by him remaining in custody pending the outcome of the appeal.

23. Overall, in my assessment, the kinds of matters identified in s 18 of the Bail Act militate generally in favour of bail being granted. It is necessary then to consider the prospects of the appeal ultimately succeeding. This evaluation is undertaken, by necessity, with a limited amount of material available to the Court. Certainly, as the Court made clear at the outset this morning, it is not in possession of the entire appeal book that will ultimately form the bulk of the material on the hearing of the appeal.

24. The applicant has raised some 12 grounds of appeal against the conviction, a number of which have what might be called sub-grounds. ZBJ also proposes some eight grounds of appeal against sentence. The grounds are set out in full in ZBJ v R at [15].

25. In his written submissions on today’s application, he described the prosecution case as exceptionally weak and argues that the appeal “is much more than just likely to succeed”. He says many of the grounds are serious and undeniable. A number of the grounds seek to agitate fundamental questions of law and fairness. He submits, as I have said, that s 66EA of the Crimes Act is unconstitutional and, along with other recent statutory changes, denies an accused person the right to a fair trial. He repeated, and expanded upon, this submission in oral argument.

26. In his supplementary written submissions, ZBJ expanded upon the content of his constitutional challenge to s 66EA. He submits that the Commonwealth Constitution guarantees an accused person a fair trial by the terms of s 80, a proposition that is likely to be accepted. He then advances several more controversial propositions said to show that s 66EA, by its terms, breaches that right to a fair trial. He calls into aid recent amendments to the Evidence Act 1995 (NSW) (ss 89A, 94(4), 94(5), 97A, 164, 165A and 165B) and the Criminal Procedure Act 1986 (NSW) (ss 161A, 293A, 294A and 306ZR) to submit that these statutory provisions in combination or individually “undermine the traditional system of protection of the accused.” While those provisions have made substantial changes to the conduct of sexual assault trials in New South Wales, I am not aware that their constitutional validity has been questioned to this point. This appears to be more of a political contention than a legal one.

27. The applicant goes on to make cogent submissions comparing the previous version of s 66EA with the section in its current form. His arguments include, but are not limited to, the fact that the prosecution is not required to prove particularised and identified acts beyond reasonable doubt and the absence of a requirement of unanimity in the jury as to which acts it is satisfied were committed beyond reasonable doubt.

28. Like the members of the Court who heard the application for leave to appeal out of time, I do not suggest that these submissions are unarguable, but they can fairly be described as ambitious. Nothing said today in oral argument advanced those submissions in any meaningful way.

29. The submissions encompass allegations that both the trial Judge and the Prosecutor at the trial behaved unfairly by making a number of false representations in closing arguments and in the summing up. ZBJ submitted correctly that “leading false facts is a much more serious irregularity, and even more serious and damaging if the trial judge does it in her summing up”. Those are matters that are in need of proof. However, mere compliance with the rule in Browne v Dunn (1893) 6 R 67 in conducting cross-examination does not constitute the making of false representations.

30. He submits his counsel at trial failed him by failing to correct these irregularities. That submission, that may be addressed by evidence at the appeal, is difficult to evaluate on the bail application.

31. Under ground 8, the applicant submits the trial Judge breached “rule 1 of procedural fairness” by refusing to admit highly relevant and important documents such as the complainant’s school records.

32. Conversely, under ground 3, the applicant submits that “highly impactful” but inadmissible expert evidence was adduced concerning the “counter intuitive” conduct of the complainant. Ground 10 contends that five “complaint witnesses” gave evidence that was inadmissible because it was “irrelevant” and was made “with a clear intention to manufacture complaint evidence”.

33. I acknowledge that what I have just said is a sample of the submissions advanced by the applicant. However, they provide a flavour of the complaints that will be advanced by him on the hearing of the appeal.

34. Some of the grounds appear to advance arguments which are contrary to clear authority. For example, the kind of expert evidence relating to the alleged victims of sexual offences behaving in ways that might be considered “counter intuitive” are frequently led in sexual assault cases because such evidence is seen to contradict what are sometimes described as “rape myths”, that is, erroneous assumptions and preconceptions about the way in which victims of sexual assault might be expected to behave.

35. Counsel for the respondent addressed the more patent flaws in some of the grounds of appeal. For example, ground 2 asserts that “new evidence prevents a miscarriage of justice”. The respondent submits that this new evidence is inadmissible and is based on a “self-authored ‘expert report’ about child behaviour”. The respondent points out that the applicant has no relevant expertise that would allow his evidence to be admitted either on appeal or on a re-trial.

36. The respondent also pointed out that the evidence of Dr Pullman, or evidence of a similar kind, about which complaint is made under ground 3, is frequently received in child sexual assault cases and has been held to be admissible, subject to certain qualifications, by both this Court and on appeal to the High Court: see, for example, Aziz (a pseudonym) v R (2022) 110 NSWLR 317; [2022] NSWCCA 76 and BQ v The King (2024) 279 CLR 124; [2024] HCA 29.

14. As to the ground asserting that the verdict was unreasonable and unable to be supported having regard to the evidence, the respondent relied on the observation made by Beech-Jones CJ at CL, as his Honour then was, (with RA Hulme and Campbell JJ agreeing) in Fantakis v Director of Public Prosecutions [2021] NSWCCA 271 at [58]:

“Ground 3 of the proposed grounds of appeal contends that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act 1912, s 6(1)). A finding on a bail application to the effect that it is likely that this Court will later determine the verdict was unreasonable and cannot be supported having regard to the evidence is likely to be rare.”

38. The respondent also referred to decisions of intermediate appellate courts in Queensland and South Australia which have rejected constitutional challenges to provisions of a similar kind to those contained in s 66EA of the Crimes Act.

39. In oral argument, complaint was made by ZBJ about the late service of the report of Dr Pullman. It was put that the report was served on 28 May 2021 for a trial starting on 31 May 2021. However, counsel for the respondent pointed out that after an argument about the admissibility of the report was resolved, the trial date was in fact vacated and re-listed the following January in 2022. Assuming that to be correct, any argument that the late service of Dr Pullman’s report caused the trial to miscarry, in my provisional view, is destined to fail.

40. ZBJ made a somewhat strident submission this morning that the use of AVL for an important witness, known as JK, was an attempt by the prosecution to hide her demeanour and mental health problems from the jury. However, the respondent pointed out that JK was not vaccinated against COVID-19 and the use of AVL was necessary both as a medical precaution and to conform with health orders and court protocols in existence at the time. Again, this submission seems unlikely to gain much traction if it is pressed when the appeal is ultimately heard.

41. While the foregoing review of the submissions made concerning the merit or otherwise of the proposed grounds of appeal is relatively and necessarily confined, the difficulties of coming to any clear conclusion as to the prospects of the appeal succeeding are obvious.

42. In ZBJ v R, Garling, Wright and Yehia JJ considered the prospects of success of the appeal, or the merits of the various grounds, for the very different purpose of determining whether the applicant should be granted leave to appeal out of time. The obstacle faced by ZBJ on that application was, by necessity, far less onerous than the one posited in s 22 of the Bail Act. The Court made the following observations as to some of the proposed grounds of appeal:

“[73] In the present case, we have already indicated that ground 12, the constitutional ground, should not be put to one side as ‘not even arguable’. In addition, a number of grounds which were considered by counsel who previously advised the applicant to be reasonably arguable are included in the grounds upon which the applicant now seeks to rely. We agree that they are reasonably arguable.

[74] Furthermore, there is an unreasonable verdict ground and a manifest excess ground as well as other grounds raising more specific complaints in relation to conviction and sentence. Reviewing such grounds at a ‘reasonably impressionistic level’ and ‘in a fairly rough and ready way’ to the extent that that is possible, we were not satisfied that they were so unarguable that the applicant should be denied the opportunity to argue those grounds if leave is granted in respect of other grounds that we are satisfied are reasonably arguable.

[75] In all the circumstances, there are grounds with sufficient prospects of success that it would be unjust if the applicant were denied the opportunity to have his appeal and application for leave to appeal heard.”

43. It is to be remembered that the decision to be made on that application was, as their Honours said in [75], whether or not the applicant should be “denied the opportunity to have his appeal and application for leave to appeal heard” at all. On such an application, the bar was set substantially lower than it is today.

44. I accept that a number of the grounds foreshadowed may be arguable but, having heard the arguments today, others may not be.

45. At its extremity this morning, the applicant sought to argue that there was, or would be, literally no evidence available to the prosecution on the re-trial. He asserted the complainant would not return to give evidence because she had lied and he could prove it. He repeated his assertion that JK’s “insanity” was hidden from the jury at the trial and she would not give evidence again. He said the complaint evidence was inadmissible in its entirety and he asserted there were nine grounds upon which Dr Pullman’s evidence concerning “counter intuitive conduct” by victims of sexual assault was inadmissible.

46. I consider that submission – that the prosecution would have no available evidence on any re-trial – to be devoid of merit. For one thing, legislative provisions would allow a recording of most of the complainant’s trial evidence to be played to the jury: Criminal Procedure Act, s 306B. The assertion regarding Dr Pullman’s evidence is contrary to authority, as I have said earlier, both of this Court and the High Court.

47. As to the grounds of appeal that may be arguable, on the limited material presented on this application, I am not convinced that those grounds enjoy particularly good prospects of success.

48. If this application was to be determined on the basis of the unacceptable risk test under ss 17 and 19 of the Bail Act, and by reference to the matters in s 18, I would be inclined to grant ZBJ bail on fairly strict conditions. However, s 22 requires him to establish special or exceptional circumstances. Based on an assessment of the grounds and the proposed submissions, and on the limited material available on a bail application, I am not satisfied that he has done so.

49. I would dismiss the release application.

50. HARRISON CJ AT CL: I agree with the reasons provided by Hamill J and the order that he proposes.

51. SWEENEY J: I also agree with Hamill J’s proposed order and his reasons for that decision.

52. HAMILL J: Accordingly, the order of the Court will be that the release application is dismissed.

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Decision last updated: 23 September 2025