R v Younan [2016] NSWSC 197

Supreme Court New South Wales

Medium Neutral Citation: R v Younan [2016] NSWSC 197 Hearing dates: 8 March 2016 Date of orders: 10 March 2016 Decision date: 10 March 2016 Jurisdiction: Common Law Before: Harrison J Decision: Bail refused Catchwords: BAIL – bail pending appeal to Court of Criminal Appeal – whether special or exceptional circumstances shown Legislation Cited: Bail Act 2013 Criminal Appeal Act 1912 Category: Principal judgment Parties: Raymond Younan (Applicant) Crown (Respondent) Representation: Solicitors: Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/323950 Publication restriction: Nil

Judgment 1. HIS HONOUR: Raymond Younan pleaded not guilty to one count of dealing with the proceeds of crime, being money to the value of $100,000 or more contrary to s 400.4(1) of the Criminal Code (Cth) 1995. He was tried before Knox DCJ and a jury between 9 and 25 February 2015 and found guilty. He was sentenced by Knox DCJ on 1 May 2015 to a term of imprisonment for 6 years with a non-parole period of 4 years commencing on 26 February 2015 and expiring on 24 February 2019. 2. Mr Younan filed a notice of intention to appeal on 10 March 2015. Thereafter, by notice of appeal filed on 16 November 2015, Mr Younan appealed against his conviction and the severity of his sentence. The single ground upon which he challenges his conviction is as follows: "His Honour erred in failing to abort the trial given the highly prejudicial comments by the principal witness Ms Ostermeyer who was an accomplice to the applicant." 1. The contention proffered by Mr Younan is that Ms Ostermeyer introduced unresponsive and highly prejudicial material in the course of her evidence as a witness for the prosecution at his trial. In short it is contended that Knox DCJ should have aborted the trial when Ms Ostermeyer gave evidence that she only continued to assist Mr Younan to defraud the ATO because he had threatened to expose her conduct to her family, her employer and the ATO and that he also ultimately threatened to kill her and her family. In rejecting the application to discharge the jury, Knox DCJ said that the evidence was "all part of the context" and said further that "there is no real prejudice to the accused." 2. Mr Younan applies for bail pending his appeal to the Court of Criminal Appeal. On 17 November 2015 he made a release application before Wood DCJ pursuant to s 62 of the Bail Act 2013. That section provides as follows: "62 Power to hear bail application if sentence or conviction appealed A court may hear a bail application for an offence if: (a) the court has convicted a person of the offence, and (b) proceedings on an appeal against sentence or conviction are pending in another court, and (c) the person has not yet made his or her first appearance before the court in the appeal proceedings." 1. Section 22 of the Bail Act also provides relevantly as follows: "22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision: (a) an offence for which an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment, (b) …" 1. On 17 November 2015 Judge Wood determined that the circumstances were not such as to qualify as or amount to special or exceptional circumstances as required by s 22. 2. On 17 December 2015 Mr Younan made a release application in this Court. R A Hulme J rejected the application, finding that special or exceptional circumstances had not been made out. 3. Mr Younan is no longer legally represented. He appeared unrepresented before me. He has been refused legal aid and is not in a financial position to retain lawyers on a fee paying basis. His appeal in the Court of Criminal Appeal is listed for hearing on 6 May 2016 and Mr Younan has foreshadowed an application to vacate that hearing if he is unable to arrange legal representation before then. In particular, Mr Younan asserts that there are additional grounds upon which he intends to rely in support of his conviction appeal and that the absence of a lawyer is frustrating his ability either to formulate or present these additional grounds. Mr Younan was unable to indicate to me even in a general sense what these additional grounds might be. 4. In these circumstances I was unfortunately restricted to a preliminary consideration of the merits of his argument that Knox DCJ's decision to refuse his trial application was arguably erroneous and that his appeal to the Court of Criminal Appeal had significant prospects of success. Purely for the sake of argument, and recognising Mr Younan's current forensic difficulties, I indicated that I would adopt the approach most favourable to him and proceed upon the unproved assumption that his single ground of appeal is at least fairly arguable. 5. However, as recognised by R A Hulme J when the matter came before him, the case against Mr Younan at his trial was close to overwhelming. It was a very strong case, supported by the direct evidence of Ms Ostermeyer, with whose assistance and cooperation the alleged offences were committed. The evidence also included telephone intercepts of conversations between Mr Younan and Ms Ostermeyer, as well as forensic accounting evidence of the transfer of otherwise unexplained amounts of money into Mr Younan's bank account. 6. Although it is not a matter for decision by me on this application, it seems likely that the prosecution will contend in the Court of Criminal Appeal that the proviso should apply. It seems reasonably arguable to me that the strength of the Crown case at trial was such that Mr Younan would have been convicted even in the absence of the allegedly prejudicial material that he submits was wrongly admitted. 7. Section 6(1) of the Criminal Appeal Act 1912 is as follows: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 1. The burden of Mr Younan's contention is that his conviction should be set aside as the result of a wrong decision on a question of law or that there has otherwise been a miscarriage of justice. 2. In my view the likely prospect is that even if he succeeds in making out any such ground, there is a greater prospect that the Court of Criminal Appeal would dismiss the appeal upon the basis that no substantial miscarriage of justice has actually occurred. It seems probable that the strength of the case against Mr Younan at his trial would have overwhelmed the significance of any wrongly admitted or prejudicial material. 3. In broad terms, special or exceptional circumstances would in the present case have to consist of, or at least include, the prospect that Mr Younan could demonstrate that he had a reasonable chance of practical success on appeal. I intend to indicate in that sense, a success of a kind that would have resulted in a new trial at the very least, not merely a decision or recognition that Knox DCJ's decision might have been erroneous but that the proviso should apply. However, I am not satisfied that he has so far demonstrated that or anything approaching it. I appreciate that his ability to formulate other grounds of appeal that might have that result has possibly been compromised by the absence of legal assistance. Unfortunately, I can only proceed upon the material that is before me. Even if I were able to give favourable consideration to some hypothetical grounds of appeal, I have not been able to do so as Mr Younan has not even identified the barest outline of what these new grounds might be. 4. Mr Younan has also sought to challenge the severity of his sentence. Without descending in detail to the merits of this contention, it does not seem to me to be likely, and it seems on the contrary to be highly unlikely, that any potential variation of his sentence on appeal would reduce it sufficiently to render the appeal futile if bail were not granted now. Mr Younan's modest criminal history since 2002 is almost entirely made up of convictions and suspended sentences of imprisonment for using a false instrument and obtaining money by deception, which almost without exception were dealt with by s 12 bonds. It is likely that the appropriateness of his present sentence was, and will continue to be, informed by reference, in part, to that history. 5. In these circumstances I consider that Mr Younan's application to be released must be refused. 6. Finally, by way of footnote, I should indicate that by email received by my Associate yesterday from Michael Heffernan, solicitor, I became aware that Mr Younan has engaged Mr Heffernan and Mr Provera of counsel to appear for him in the Court of Criminal Appeal on 6 May 2016. Mr Heffernan also indicated that Mr Provera is engaged in completing additional grounds of appeal. These grounds are presumably those to which I have referred and to which Mr Younan directed my attention. It may be that Mr Younan will wish at some convenient time to revive this application if the additional grounds of appeal enliven the prospect that a grant of bail deserves further consideration.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2016