Aldridge v The Queen - [2011] ACTCA 20

HUMAN RIGHTS ACT

EDWARD GRAHAM ALDRIDGE v THE QUEEN
[2011] ACTCA 20 (22 September 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – bail pending appeal – special or exceptional circumstances – expiry of custodial portion of sentence – interests of the child – bail granted.

Human Rights Act 2004 (ACT), ss 11, 22
Bail Act 1992 (ACT), s 9E
Court Procedures Rules 2006 (ACT), r 6145
Crimes (Sentencing) Act 2005 (ACT), s 117

Ettridge v Director of Public Prosecutions (Qld) (2003) 78 ALJR 157
Sherd v The Queen [2011] ACTCA 17
United Mexican States v Cabal and Ors (2001) 209 CLR 165
Peters v The Queen (1996) 71 ALJR 309
Re Kulari [1978] VR 276
Tieleman v The Queen (2004) 149 A Crim R 303
R v Ogawa [2009] QCA 201
Re Pennant [1997] 2 VR 85
S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18
S v The State [2011] ZACC 7
Marotta v The Queen (1999) 73 ALJR 265

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 49 of 2010
No. SCC 206 of 2010

Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 22 September 2011

IN THE SUPREME COURT OF THE     )          No. ACTCA 49 of 2010
  )          No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: EDWARD GRAHAM ALDRIDGE
Appellant

AND:THE QUEEN
Respondent

ORDER

Judge:  Refshauge J
Date:  22 September 2011
Place:  Canberra

THE COURT DIRECTS THAT:

The Director of Public Prosecutions file and serve a Draft Index of the Appeal Papers required by the Court Procedures Rules 2006 (ACT) within 14 days and serve a copy on the appellant.

The Registrar allocate a date for settlement of the appeal papers after the Draft Index has been filed and notify the date to the parties.

AND THE COURT ORDERS THAT:

The parties be heard as to the appropriate conditions to be imposed on the grant of bail to Edward Graham Aldridge.

IN THE SUPREME COURT OF THE     )          No. ACTCA 49 of 2010
  )          No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:EDWARD GRAHAM ALDRIDGE
Appellant

AND:THE QUEEN
Respondent

Judge:  Refshauge J
Date:  22 September 2011
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

Every person who is sentenced by a criminal court in this Territory is entitled to appeal against the sentence and have reviewed whether it is infected by error or manifestly excessive or otherwise should be reviewed. Though such a right has been available since the establishment of this Territory (though initially only with leave), it is now supported by s 22(4) of the Human Rights Act 2004 (ACT).

That appeal, however, should not be taken to suggest that…

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 Aldridge v The Queen

Details

AGLC: Aldridge v The Queen [2011] ACTCA 20
Case: [2011] ACTCA 20
Decision Date

CaseChat Overview and Summary

The case of *Aldridge v The Queen* concerned an application for bail pending appeal made by Edward Graham Aldridge to the Court of Appeal of the Australian Capital Territory. Mr Aldridge had been sentenced to three years and six months imprisonment for offences including burglary, aggravated burglary, and theft, with a non-parole period of two years. He appealed against the severity of his sentence and the process by which it was determined.

The Court of Appeal was required to determine whether it had jurisdiction to grant bail pending appeal, and if so, whether special or exceptional circumstances justified its grant. The court also had to consider the prospects of success on appeal and the practical implications of the custodial portion of the sentence being substantially served before the appeal could be heard.

The court affirmed its jurisdiction to grant bail pending appeal, noting that this requires the establishment of special or exceptional circumstances. While strong grounds for the appeal to be allowed and the custodial portion of the sentence to be substantially served are typically required, the court found that the specific circumstances of this case warranted a departure from this strict test. The significant delay in bringing the appeal to a hearing, for which Mr Aldridge was not primarily responsible, meant that the appeal would likely be rendered largely ineffective if bail were not granted. Although the grounds of appeal were not demonstrably strong, they were considered arguable. Furthermore, the court took into account the recent birth of Mr Aldridge's second child, his partner's post-natal depression and her subsequent sentence of periodic detention, which would leave their young children without adequate care. The court concluded that these combined factors constituted special or exceptional circumstances justifying the grant of bail.

The court ordered that the parties be heard on the appropriate conditions to be imposed on the grant of bail to Mr Aldridge. It was made clear that if the appeal were dismissed, the full term of the non-parole period would still need to be served.

Orders