and Victor Martin (a pseudonym)[1] v The Queen

[2019] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0211
VICTOR MARTIN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of an alleged victim of  sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2019
DATE OF JUDGMENT:	8 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 15

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CRIMINAL LAW – Bail – Bail pending appeal – Application for bail pending appeal – Exceptional circumstances – Whether exceptional circumstances exist – Applicant recently diagnosed with life threatening disease with very limited life expectancy – Hearing of appeal brought forward to accommodate applicant’s prognosis – Exceptional circumstances not established – Application for bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Lawyers R Us (Vic)
For the Respondent	Mr B L Sonnet with Ms K Hamill	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
WEINBERG JA:

1. On 2 May 2018, following a trial in the County Court, the applicant was found guilty of one charge of persistent sexual abuse of a child under the age of 16, one charge of intentionally causing injury and seven charges of common assault.  On 8 August 2018, the applicant was sentenced to a total effective sentence of 12 years’ imprisonment, with a non-parole period of 8 years and 6 months. 

1. Both the Director of Public Prosecutions and the applicant have commenced a proceeding in this Court.  The Director has appealed against the sentence imposed, and the applicant seeks leave to appeal against his convictions.  In the ordinary course, those proceedings could have been expected to be listed for hearing in the second half of this year. 

1. On 29 January 2019, the applicant filed an application for bail.  In his application, he sets out his grounds as follows:

1.The applicant has been diagnosed with stage IV metastatic mesothelioma as at 21 January 2019 and is currently an in-patient at St Vincent’s Hospital.  The cancer is incurable. 

2.He has a life expectancy of 7 to 17 months which may be much shorter were he not capable of tolerating chemotherapy or have complications.

3.He has complied with bail orders since 28 July 2016.  He currently has difficulty walking to the bathroom. 

4.The applicant’s written case enjoys good prospects of success, especially regarding fresh evidence.

1. The reference to ‘fresh evidence’ in the application for bail is a reference to one of the applicant’s eight proposed grounds of appeal against conviction.  That ground is in the following terms:

A substantial miscarriage of justice occurred by reason of the fresh evidence of [the applicant’s son]. 

1. In support of his application for bail, the applicant filed medical evidence confirming his diagnosis of metastatic mesothelioma and his limited life expectancy.  Having regard to the applicant’s medical prognosis, the Court fixed the Director’s appeal and the application for leave to appeal against conviction for hearing as a matter of urgency.  The hearing date is 4 March, some four weeks away.

1. Bail pending appeal will only be granted in truly exceptional circumstances.  Despite the existence of statutory provisions permitting applications for leave to appeal, there is a presumption in favour of the validity of conviction and sentence, and an applicant for leave to appeal does not have a right to have a conviction or sentence suspended pending the hearing and determination of his or her application and any appeal.[2] 

   [2]Ash v The Queen [2010] VSCA 117 [3]–[4] (Maxwell P and Neave JA).

1. The applicant asserts that his grounds of appeal ‘enjoy excellent prospects of success’.  This is not the occasion to conduct a detailed analysis of his grounds.  It is sufficient for us to say that, having examined the proposed grounds, none of them appear to us to have overwhelming strength.  Indeed, there appears to us to be contestable arguments in relation to each proposed ground of appeal. 

1. Having regard to the fact that this Court has been able to fix the hearing of each party’s proceeding in only a few weeks hence, we are not persuaded that there are exceptional circumstances justifying a grant of bail at this stage.  While the position may be re-visited following a full argument on 4 March, or if the position changes in the interim, the present application for bail must be refused. 

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