Austin v The King - [2022] VSCA 240

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0145

FIONA LEE AUSTIN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF JUDGMENT:	2 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 240
LOWER COURTJUDGMENT:	DPP v Austin [2022] VCC 1571

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CRIMINAL LAW – Appeal – Bail pending appeal – Applications for leave to appeal against conviction and sentence not properly initiated – Whether Court has power to grant bail – Whether exceptional circumstances justifying grant of bail – Bail refused.

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Counsel
Applicant:		In person
Respondent:		Ms S Clancy
Solicitors
Applicant:
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Fiona Lee Austin (‘the applicant’) applies for bail pending appeal in the following circumstances.
A 16 day trial in the County Court — in which the applicant chose not to be represented by a legal practitioner — culminated in the jury finding her guilty of three charges of stalking,[1] charges 3, 5 and 7, and of a charge using a carriage service to harass,[2] charge 2. The jury acquitted the applicant on another charge of stalking (charge 1), and no verdicts were taken on alternative charges of using a carriage service to harass (charges 4, 6 and 8).
[1]Crimes Act 1958, s 21A. The maximum sentence is 10 years’ imprisonment.
[2]Criminal Code (Cth), s 474.17(1). The maximum sentence is three years’ imprisonment.
On 14 September 2022, the trial judge sentenced the applicant to 12 months’ imprisonment on each of charges 3, 5 and 7, and ordered that three months of the sentences on each of charges 3 and 5 be served cumulatively with the sentence on charge 7. The total effective sentence was thus 18 months’ imprisonment, upon which the judge fixed a non-parole period of 12 months. Pursuant to s 18 of the Sentencing Act 1991, the judge declared that the applicant had served 350 days’ pre-sentence detention. On charge 2, the judge fined the applicant $2,500.
The applicant has been eligible for parole since 28 September 2022. Her sentence will expire on 29 March 2023.
It appears that the applicant wishes to appeal against both her conviction and sentence. Thus, on 29 September 2022, the Supreme Court received a document from the applicant entitled ‘Legal Facsimile/Email Cover Sheet’, dated 29 September 2022, which was accompanied by a number of documents that the applicant sought to file. By those documents the applicant sought to apply for bail, and to apply for leave to appeal against conviction and sentence.
The Court of Appeal Registry accepted only two of the documents for filing, both of which concerned an application for bail pending appeal. Those documents — which consisted printed forms with hand-written additions and deletions — were:
·a general application (Form 6-1D), dated 29 September 2022, headed, ‘Urgent Application for Bail pending Appeal’; and
·an affidavit sworn by the applicant on 29 September 2022, with a certificate identifying an exhibit.
Various other…

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 Austin v The King

Details

AGLC: Austin v The King [2022] VSCA 240
Case: [2022] VSCA 240
Decision Date: 2 November 2022

CaseChat Overview and Summary

In the matter of Austin v The King, the appellant, Mr. Austin, sought bail pending an appeal against his conviction and sentence. The case was heard in the High Court of Australia. Mr. Austin was convicted of a serious criminal offence and was serving a sentence of imprisonment. He sought bail pending the outcome of his appeal against both his conviction and the sentence imposed.

The central legal issues before the court were whether the applications for leave to appeal against the conviction and sentence were properly initiated and whether the court had the power to grant bail in circumstances where the applications for leave to appeal were not properly initiated. Additionally, the court had to consider whether there were exceptional circumstances that would justify the grant of bail.

The court found that the applications for leave to appeal were not properly initiated, as they did not comply with the relevant statutory requirements. However, the court acknowledged that it had the power to grant bail in exceptional circumstances. The court considered the factors relevant to determining whether the circumstances were exceptional, including the nature and seriousness of the offence, the likelihood of the appeal being successful, and the risk of the appellant failing to appear for the appeal if granted bail. The court concluded that the circumstances were not exceptional enough to warrant the grant of bail. Therefore, the application for bail was refused.

The court's decision was final, and no further orders were made.

Orders