In this matter, Greg Walsh acted for Margaret Colquhoun (applicant) in respect of a release application pending determination of appeals against conviction and sentence. The application was heard by the Trial Judge who had sentenced the applicant to a term of imprisonment of 2 years and 4 months and a non-parole period of 1 year and 2 months following her conviction by the Court on 12 June 2026 for a charge of fraud , contrary to s 192E(1)(a) of the Crimes Act 1900 (NSW).
On 5 August 2026, Mr Walsh filed a notice of intention to appeal to be filed in the Court of Criminal Appeal. The applicant’s intention to is appeal against both conviction and sentence.
On 7 August 2026, the applicant filed a conditional release application. An affidavit of Mr Walsh, together with proposed grounds of appeal and proposed bail conditions were tendered.
Abadee DCJ considered s.22 of the Bail Act, as stated in El-Hilli and Melville v R [2015] NSWCCA 146 per Hamill J (Simpson J and Davies J agreeing). His Honour observed that there must be ‘special or exceptional’ circumstances justifying release. The second is that consideration must be given to whether there is an unacceptable risk that the applicant, if released, would engage in any of the conduct referred to in s 19(2)(a)-(d) (incl.) of the Act, by reference to the non-exhaustive list of matters in s 18 of the Act.
The Crown opposed the application. In doing so, it relied upon the decision of Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103.
His Honour referred to El-Hilli at [29], where Hamill J also observed that ‘special or exceptional circumstances’ may exist in the combination of factors or in the co-incidence of a number of features. Frequently, these include (i) the merit of the appeal; and (ii) the possibility that the applicant will have served their sentence of imprisonment (or the non-parole period), or a substantial part of it, before the appeal is determined.
His Honour set out, at length, the factors involved in the application, which comprehensively addressed:
- Strength of the severity appeal
- Absence of ‘unacceptable risk’
- Consequences of a successful appeal
In the context of the Crown’s submissions, His Honour dealt with:
- The release application was premature
- Merit of the proposed grounds of appeal
- Unacceptable risk
- Consequences of successful appeal
His Honour, at [51], accepted that this is not a case where the applicant exclusively relies upon the strength of her severity appeal. Other matters are relied upon, including, but not limited to, the consequences for her if she succeeds in establishing sentencing error.
His Honour accepted that the applicant did not present as an unacceptable risk. His Honour also considered not only the merit of the appeal but also the possibility that the applicant will have served their sentence, the non-parole period, or a substantial part of either before their appeal is determined.
His Honour, at [54] – [68], considered the assessment of the apparent merit of the appeal. His Honour considered that the proposed ground (1)(a) of manifest excess is arguable within the constraints that the Court of Criminal Appeal identified in Obeid v R (2017) 96 NSWLR 155 at [443]. In addition to the subjective factors, there were other objective factors as referred to by His Honour at [57].
At [58], His Honour observed that it was submitted specific deterrence should be given diminished significance but held that this proposed ground is not arguable having regard to His Honour’s findings at [239] of the remarks on sentence.
Also, the JIRS provided little assistance in illuminating the force of the applicant’s argument about manifest excess in terms of the length of the term of imprisonment. Such statistics were found by His Honour to be of limited utility.
At [62], His Honour dealt with the Crown’s concession at the sentencing hearing that it was open to the court to impose an ICO. However, this was qualified by His Honour on the assumption that the court determine that the applicant qualified for such an order (being that the term of imprisonment imposed was two years or less).
At [64], His Honour observed that is the Crown did not dispute that if material error (or errors) was or were demonstrated, the applicant had a not insubstantial prospect of the term being reduced to two years and, on that contingency, would have good prospects of obtaining an ICO.
At [70], His Honour found that the applicant has a conspicuously good record and has always complied with bail conditions and is otherwise of good character.
At [73], His Honour made a finding that requiring the applicant’s legal representative to approach the Registrar of the Court of Criminal Appeal to determine what dates might be available in the Court of Criminal Appeal was cumbersome. At [76], His Honour referred to the conventional period of delay through the Supreme Court’s summer vacation and that a substantial part of the applicant’s non-parole period will likely be served before the Court of Criminal Appeal has determined the appeals.
His Honour released the applicant subject to her compliance with the conditions referred to in the application.
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