Austin v The King

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 documents — again printed forms upon which were hand-written additions and deletions — which related to proposed applications for leave to appeal against conviction and sentence, were not accepted by the Registry for filing. Those documents purported to be:
·a notice of application for leave to appeal against conviction (Form 6-2A), dated 29 September 2022;
·a notice of application for leave to appeal against sentence (Form 6-2B,) dated 29 September 2022;
·a written case, dated 29 September 2022;
·two versions of a schedule of evidence, dated 29 September 2022 (each in substantially the same terms);
·a list of authorities and materials relied upon dated 29 September 2022 (two versions, one comprising an annotated version of Annexure 3 to Practice Note SC CA 1); and
·an application for extension of time (Form 6-2H).
By a letter to the applicant dated 7 October 2022, the Deputy Registrar explained why the documents referred to immediately above were rejected for filing. The letter included the following:
You submitted the following documents by which you seek to apply for leave to appeal against conviction and sentence:
1.   notice of application for leave to appeal against conviction (Form 6-2A) dated 29 September 2022;
2.   notice of application for leave to appeal against sentence (Form 6-2B) dated 29 September 2022;
3.   written case dated 29 September 2022;
4.   schedule of evidence dated 29 September 2022 (two versions, in substantially the same terms);
5.   list of authorities and materials relied upon dated 29 September 2022 (two versions, one comprising an annotated version of Annexure 3 to Practice Note SC CA 1); and
6.   application for extension of time (Form 6-2H).
Those documents do not comply with the requirements of the Supreme Court (Criminal Procedure) Rules 2017 (Rules) or Practice Note SC CA 1. Furthermore, if they were sealed, they would be substantially irregular. Accordingly, pursuant to r 1A.04(1) and (2) of the Rules, the Registrar of Criminal Appeals refuses to seal those documents, and rejects them.
The Registrar’s decision arises from the following matters.
1.   The grounds of appeal in the Form 6-2A and Form 6-2B do not comply with the requirement in r 2.05(4) of the Rules that they be stated ‘specifically and concisely, and not merely in general terms’. In particular, they are stated in general terms and are not sufficiently specific, with the consequence that they do not clearly identify the issues and matters relied on (see section 8 of Practice Note SC CA 1).
2.   The grounds of appeal in the Form 6-2A refer to matters concerning the plea hearing and sentencing which do not have any apparent relevance to an application for leave to appeal against conviction.
3.   The written case relates only to the proposed application for leave to appeal against conviction. However, a written case must be filed in support of both an application for leave to appeal against conviction and an application for leave to appeal against sentence (r 2.05(4) of the Rules). Contrary to that requirement, no written case was submitted in support of the proposed application for leave to appeal against sentence.
4.   The written case is in general terms and does not disclose arguments you would seek to advance in support of each ground of appeal, nor does it disclose any evidence, passages of transcript or other documents you would seek to rely upon to support your allegations. It must also contain a summary of relevant facts. Please see the requirements in sections 9.3 and 9.4 in Practice Note SC CA 1.
5.   In the written case you state ‘To be amended once I am out of jail and have access to the required documents & resources.’ Please see section 13 of Practice Note SC CA 1 which relates to amendment. You should not assume that amendment outside the parameters referred to in that section will be permitted (including as to timing).
6.   The lists of authorities and materials relied upon do not identify any relevant legislation or authorities. In relation to the list which includes specific items in the ‘materials relied upon’ section, the relevance of all the things listed is not clear given the contents of the written case. For example, it is not apparent why ‘all transcripts, video & audio recordings for all related hearings over the last 7 years’ are relevant. Please also note that it must be clear which list of authorities relates to the application for leave to appeal against conviction, and which relates to the application for leave to appeal against sentence.
7.   The schedule of evidence is not sufficiently specific. Please also note that only one schedule of evidence is to be submitted.
8.   It is premature to seek to apply for an extension of time because the 28 day appeal period has not yet expired. Accordingly, the application for an extension of time (Form 6-2H) cannot be accepted for filing. In the event you do need to apply for an extension of time in the future, please refer to the procedural guidance contained in my letter to you dated 28 September 2022.
I would add to the Registrar’s criticisms that the documents include scandalous material, which itself would provide a basis for refusing them for filing.
In the result, the sole application before me purports to be for bail pending appeal, in unusual circumstances whereby the anticipated applications for leave to appeal against conviction and sentence are yet to be properly initiated. I pause at this juncture to note that the respondent contends that, in circumstances where the Registry has not accepted the applicant’s applications for leave to appeal for filing, the Court has no jurisdiction to deal with the bail application. I disagree. I will later return to that issue.
Given that prospects of success on appeal is generally a relevant matter informing a decision whether to grant bail pending appeal, I have had regard to the ‘grounds’ set out in the rejected documents in order to try and get some sense of whether the applicant’s putative applications for leave to appeal have any such prospects. With respect to conviction, the proposed grounds were:
1The conviction was unreasonable & unsafe
2The evidence did not support the conviction
3The Trial Judge was hostile pre-trial, during the trial & during sentencing & during plea hearing
4The Trial Judge was overtly biased
5The Trial Judge was obstructive & adversely influenced the jury
6A significant miscarriage of justice has occurred
And as to sentence, the proposed grounds were:
1The sentence was excessive
2The sentence was influenced by the hostility of the Trial Judge
3The sentence was designed to cause the greatest possible harm to me
4All sentencing considerations were not a part of the sentencing decision
5The ‘reasons’ are not supported by the evidence / transcripts & were designed to create the most scandalous of media reporting

It may immediately be appreciated that the second and third proposed grounds in the sentence application contain scandalous matter.
I also read the ‘written case’ that was not accepted for filing. It was in the following terms:[3]
[3]The curious numbering on this and other documents is the result of the applicant inserting narrative statements into printed forms without deleting the printed numbering.
1.All prosecution witnesses lied under oath
2.Prosecution had control over exhibits presented
3.to the jury.
4. Trial judge repeatedly & frequently interrupted me, demonstrated
5. hostility to me in front of the jury.
6.At the very least, the evidence should have created
7.reasonable doubt and would have if [trial judge’s first name]
8.[trial judge’s surname] had not indicated to the jury that he hated
9.me & wanted me found guilty
10.To be amended once I am out of jail and have access to the required documents & resources.
11.The trial judge allowed prejudicial (and false) statements to be made to the jury & did nothing to indicate to the jury that that evidence should not be considered by them.
Moreover, in order to get a sense of whether the applicant’s criticisms of the judge were justified — in particular, that he repeatedly and frequently interrupted the applicant; demonstrated hostility to her in front of the jury; and indicated to the jury that he hated her and wanted her found guilty — I read substantial parts of the transcript, including a deal of the applicant’s cross-examination of the complainants; much of her oral evidence; and the judge’s Charge. I also read the judge’s reasons for sentence.[4]
[4]DPP v Austin [2022] VCC 1571 (Judge O’Connell) (‘Reasons’).
So far as the bail application is concerned, the ‘grounds’ set out in the applicant’s hand-written application are as follows:
1The hostility of the Judge during the trial and sentencing
2The use of false & misleading statements made by the Judge during sentencing
3I have thousands of pages of documents to go through covering 8 years of the dispute
4I do not have access to any documents or resources in jail
5My 99 year old grandmother came out of hospital the Friday before my sentencing on 14/9/22.
6As a result of the false & misleading comments made to the media by the Judge, I am in Protection in jail which means I am confined to my unit 24 hrs a day & have no access to mainstream programs [& resources?]
7The appeal is unlikely to be heard before my sentence is up
8Once released, I will be under house detention due to the media reporting and the damage & harm & safety risks cause by those reports
Once more, it may be appreciated that ‘grounds’ 1 and 2, and part of ‘ground’ 6, arguably contain scandalous matter, and that ground 8 is irrelevant, in that it is concerned with the applicant’s situation upon release. I will treat the remaining grounds (or part thereof) as contending:
·first, there are ‘thousands of pages’ of documents relevant to the applications for leave to appeal to which the applicant does not have access in custody;
·secondly, the applications for leave to appeal are unlikely to be heard before her release;
·thirdly, her current conditions of custody are onerous because she is in protection; and
·fourthly, she is concerned about the welfare of her grandmother.[5]
[5]I note that the applicant in effect informed me in the course of the hearing that she was not the only family member who looked after her grandmother.
The hand-written affidavit accompanying the bail application does little (if anything) to support it. Reproducing it as best I am able, it reads:
1.I am the [eg, applicant]….applicant…………………………. in this proceeding.
2.I make this affidavit from facts within my own knowledge unless otherwise stated.
3.   This is an urgent appeal bail application
4.   made to the Practice Court at the
5.   Supreme Court of Victoria.
6.   The required appeal documents are
7.   made from memory only as I have no
8.   resources in jail.
9.   This application is made on 29 September
10. 2022 because DPFC^[[6]] refused to send
11. my bail application to the Supreme Court
12. prior to the Ombudsman becoming involved.
13. I am a self-represented applicant.
14.I was handed these forms at 10.15 am on 29/9/22 & told I had to hand them back completed before 12 noon if I wanted them sent to the court today.
[6]Presumably, the Dame Phyllis Frost Centre, a maximum security women’s prison.
As I have mentioned, the respondent contends that the Court has no power to grant bail. Invoking s 310 of the Criminal Procedure Act 2009 (‘CPA’), the respondent submits that the Court’s powers to grant bail are only enlivened once an application for leave to appeal is accepted for filing. Since no application for leave to appeal has been filed, bail cannot be granted under s 310, which provides:

310 Bail pending appeal
(1) A prisoner within the meaning of the Corrections Act 1986 who appeals, or applies for leave to appeal, to the Court of Appeal may apply to the Court of Appeal to be granted bail.
(2) On an application under subsection (1), the Court of Appeal may grant the prisoner bail pending the appeal.

The respondent further submits that, should the applicant be successful in filing applications for leave to appeal, she would be required to demonstrate the existence of exceptional circumstances justifying the grant of bail pending appeal.[7] None of the circumstances relied upon by the applicant in support of bail — whether viewed individually or in combination — demonstrate circumstances that are truly exceptional. In particular, the respondent submits that, on the limited information before it, the Court could not determine that the putative applications for leave to appeal have reasonable prospects of success.
[7]The respondent’s counsel cited Re Zoudi (2006) 14 VR 580 (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA) (‘Zoudi’).
It may readily be concluded that s 310 of the CPA is a provision ancillary to those provisions of the CPA which confer rights of appeal (or to seek leave to appeal) to the Court of Appeal under Pt 6.3 of that Act.[8] In my view, however, s 310 is not an exclusive source of power pursuant to which this Court might grant the applicant bail. As a superior court of record, the Supreme Court is able to draw upon a ‘well of undefined powers’, including every power necessary to effectuate the exercise of its jurisdiction.[9]
[8]Richards (a pseudonym) v The Queen (2017) 270 A Crim R 311, 314 [12] (Maxwell P and McLeish JA) (‘Richards’).
[9]Grassby v The Queen (1989) 168 CLR 1, 16–17 (Dawson J). See also Richards, 315–6 [14]–[17].
I need not trace the source of this Court’s inherent jurisdiction with its well of undefined powers. That was done recently in Baker,[10] and it is unnecessary for me to repeat the exercise. Drawing on Baker, I consider that s 310 is not the sole source of this Court’s power to grant bail to a person who seeks to challenge his or her conviction or sentence. In my view, quite apart from s 310, the Court has power to do so, that power arising from the Court’s general responsibility for the administration of justice, flowing from its status as a superior court of unlimited jurisdiction. Thus, by way of example, I consider that the Court would not be deprived of power to grant bail if it were plain that there had been a substantial miscarriage of justice, but that an application for leave to appeal was not properly on foot because of defects in the initiating documents (occasioned by a failure to comply with the relevant rules or practice directions). In a case like that it would, I think, be possible to grant bail on an appropriate undertaking by the applicant subsequently to file documents in proper form. As the Court observed in Baker, in discharging the general responsibility for the administration of justice, this Court exercises ‘the full plenitude of judicial power’, identified by reference to those powers ‘exercised by any of the superior Courts in England or the judges thereof or by the Lord High Chancellor of England’.[11]
[10]Baker v The Queen (No 2) [2022] VSCA 171, [17]–[24] (Emerton P, Priest and Niall JJA) (‘Baker’). See also Richards, 315–6 [14]–[17].
[11]Baker, [21].
Although the source of power to grant bail in the present case would not flow from s 310 of the CPA, in circumstances where the applicant seeks release pending disposal of her putative applications for leave to appeal, I consider that, for all practical purposes, I should treat the present application as if it were a conventional application for bail pending appeal.
The principles governing an application for bail pending appeal were spelled out in Zoudi. Bail pending appeal will only be granted where the applicant for bail establishes exceptional circumstances. For the purposes of determining whether exceptional circumstances exist, the expiry of the non-parole period should — unless it appears that the applicant would not be released at or about that time — be treated as a relevant consideration.[12] The Court set out a number of principles which apply in a case such as the present:[13]
[12]Zoudi, 581, [2]–[4], 587 [22].
[13]Ibid 588–9 [28].
(1) First, to reiterate the words of Brennan J in Chamberlain v R,[14] the central feature in the administration of criminal justice is the jury and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court. In Markovina v R,[15] Hayne J doubted that there was any reason to distinguish these remarks in the case of an appeal against sentence. In Re Pinkstone’s Applications[16] Kirby J stated that in the context of a pending application for special leave, convictions and sentences and other orders are not to be regarded as provisional.[17]
[14](1983) 153 CLR 514 at 519–20.
[15](1998) 72 ALJR 1522 at 1523, [8].
[16](2003) 200 ALR 325 at 328, [16]; 77 ALJR 1561 at 1563.
[17]See also Putland v R [2003] HCATrans 263 per Kirby J.
(2) Secondly, although there is a statutory right of appeal, it is a right which is conditioned by the presumption which operates in favour of the validity of the conviction and sentence and it is, therefore, not a right to have the conviction or sentence suspended pending the hearing and determination of an appeal.
(3) Thirdly, as has been confirmed by the High Court in Cabal,[18] to allow bail pending the hearing of an appeal, after a person has been convicted and imprisoned:
•     makes the conviction appear contingent until confirmed;
•     places the court in the invidious position of having to return to prison a person whose circumstance may have changed dramatically during the period of liberty on bail;
•     encourages unmeritorious appeals;
•     undermines respect for the judicial system in having a ‘recently sentenced man walking free’; and
•     undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
These considerations have long been recognised as also applicable where the appeal is against sentence.[19]
(4)Fourthly, and consequently, an order granting bail will only be made if there are exceptional circumstances.
(5) Fifthly, ‘exceptional circumstances’ means circumstances which are truly exceptional.
[18][United Mexican States v Cabal (2001) 209 CLR 165] at 181, [39] per Gleeson CJ and McHugh and Gummow JJ.
[19]R v Giordano (1982) 31 SASR 241 at 244 per King CJ; R v Velevksi (2000) 117 A Crim R 30 at 32, [12]; Ettridge v Director of Public Prosecutions (Qld) [2003] QCA 410 at [4]–[7].

Whether bail will be granted in a particular case will depend on all of the circumstances, of which the expiry of the non-parole period will be but one. There may be countervailing considerations — such as an applicant posing an unacceptable risk of endangering the safety or welfare of a person, committing an offence while on bail or obstruct the course of justice — which mean that bail will be refused despite the fact that the non-parole period (or the suspended portion of a partly suspended sentence) will have expired before the appeal is heard. Further, the question of whether the prospects of success of the putative appeal is another factor that must be considered.[20]
[20]Zoudi, 588 [27].
In the course of the hearing of this application, the applicant informed the Court that she will not be released on parole, because she will not acknowledge her guilt. On the material before me, I have no reason to doubt the accuracy of that statement. There thus appears to be no prospect that the applicant will be denied the conditional freedom that parole offers if bail is denied.
Turning to the prospects of the applicant’s proposed applications for leave to appeal against conviction and sentence succeeding, I acknowledge that I have not had the benefit of full argument, and that I have, to a large extent, had to rely on my own traversal of the available material. Those caveats in mind, as best I can discern neither application appears to enjoy reasonable prospects.
With respect to her conviction, the applicant, as I have said, alleges that she was frequently and repeatedly interrupted by the judge. As to that, it appears that the first time that she was interrupted by the judge in the presence of the jury was during her ‘response’ to the prosecutor’s opening.[21] In order to provide some context, I set out a limited portion of the applicant’s remarks immediately preceding the judge’s interruption:
On 7 December 2016, I went to the Melbourne Magistrates’ Court to attend a rehearing of a personal safety intervention order in accordance with s 99 of that Act. As I walked up the steps to the entrance, I was surrounded by police officers and held on those steps for almost an hour before being walked down them, around the side of the building and into the holding cells. Late that afternoon, in a decision that took less than a minute to make and which was made at the request of Detective Trent Dwyer, I was told I was being sent to gaol. I was not released until 22 November 2017, 355 days later.
I’ve never been found guilty of anything. The facts and circumstances of this matter have never been considered by a court. The only things that come out of gaol are rage and hate. What – what follows are some of the reasons specifically relating to my experiences of that occurring.
On 26 January 2017, I was housed in the Mitchell Units at the Dame Phyllis Frost maximum security prisoner – prison. We woke on that morning and waited for the morning count. They should have started at 7.30 am and would involve prison officers going into each unit and counting prisoners as they stood by their cell door. It was Australia Day, the court – the count did not start. There were no announcements on the intercom.
From our window, we saw multiple ambulances and police cars park outside the recreation centre. Under ordinary circumstances, police never entered the body of the gaol.
[21]See Criminal Procedure Act 2009, s 225.
At this point, the judge interrupted the applicant and sent the jury for a ‘short break’. He then addressed the applicant in the absence of the jury. The resulting exchange between the judge and the applicant — which occupies nine pages of transcript — commenced in the following way:
HIS HONOUR: Ms Austin, I should say to you that I hesitate greatly to interrupt you during the course of your opening address and I do so because I feel an obligation to try and ensure that you do have a fair trial.
Now, I ask you to listen to me as best you can and with – without some sense that I’m seeking to the worst for you. The position here is that the prosecutor has set out for the jury what they say occurred in 2014, 2015 and 2016. Now, I appreciate you were arrested in October 2016 and then placed in custody and that no doubt there were terrible experiences associated with that.
ACCUSED: Are you aware what happened on that day that I’m talking about?
HIS HONOUR: No, I’m not and I was concerned that you tell the jury about it. You see, what the opening is directed to and what I’m required to direct you to is to where you take issue with what’s alleged during the period of the indictment.
Now, what occurred in gaol after that is very, very unlikely to have any bearing upon those matters.
Putting it as neutrally as possible, the applicant made it clear that she was unwilling to embrace the guidance that she was being offered by the judge. The exchange concluded as follows:[22]
HIS HONOUR: … Ms Austin, I’m going to let you proceed. I’ve done my best to perhaps alert you to the problems that arise. You should understand that ultimately I have to direct the jury as to lawfully approaching their task. And I’ll hear further submissions as to the relevance of these matters at that time. But for present purposes, not to shut you out as to any valid defence that you wish to pursue, I’ll permit you to proceed.
Could I ask you to reflect on the matters that you want to put to the jury and ask yourself the question as to whether they really are capable of bearing upon the facts in issue that were raised yesterday by [the prosecutor] about these allegations in the summary that was put to the jury.
That’s the real nub of this case and it’s your opportunity now to deal with those allegations and can I urge you to do so?
ACCUSED: Well, what I’ve seen so far is that you’re going to stop me presenting my case and I don’t have any trace – trust or faith in you to do otherwise so I’ll present my case as I see fit, whether it’s in court or to the media that you are determined to get involved in this matter.
HIS HONOUR: Yes. Very well. We’ll bring the jury back please.
[22]Emphasis added.
It is plain that the judge’s interruption of the applicant’s response to the prosecutor’s opening was entirely justified, notwithstanding that the applicant apparently was unwilling to accept that it was. It is also plain that the applicant’s diatribe was entirely unjustified. The judge had made it clear that he was not preventing the applicant from putting her case, but that she needed to focus on relevant issues. So much could not have justified the applicant’s harangue that she had no ‘trace’ of ‘trust or faith’ in him. And her rebuke that she would present her case as she saw fit, whether that be in court or ‘to the media’ — whom the judge was ‘determined to get involved in this matter’ — was breathtakingly insolent.
Moreover, as far as I can tell, the judge’s interruptions of the applicant’s cross-examination also appeared to be entirely justified. Being conscious that ‘one swallow does not a summer make’, an example of the difficulty under which the judge laboured — and, indeed, an example of the patience and courtesy he displayed — may be gleaned from an early passage of the applicant’s cross-examination of the complainant, ‘OD’:
Okay. After I was sacked, did you finish the school year at um the school?---Yes.
And did you return in 2015?---Yes.
Did you go to university in 2016 after you completed Year 12?---Yes.
Did you complete your degree?---No.
Are you still studying that degree?---Ah what’s the relevance?
Well, were you continuing on with your life as you would ordinarily or was it interrupted in some way?---Can you ask me - - -
HIS HONOUR: We’ll just pause there for a moment. I’ll ask you to be a bit more specific about this question, Ms Austin, if you would. In what time frame are you focusing the question or directing it to?
ACCUSED: Ah time period?
HIS HONOUR: Yes.
ACCUSED: So I would imagine an undergraduate degree would be completed in - - -
HIS HONOUR: Just pause there. You’re asking the witness - - -
ACCUSED: Yes.
HIS HONOUR: - - - whether he’s completed his studies.
ACCUSED: Yes.
HIS HONOUR: What’s the purpose of that question, if I may ask?
ACCUSED: The purpose is um he’s been claiming he’s deeply traumatised and hasn’t been able to function. So completing his degree, why he didn’t complete the degree, um all those kind of things are – are relevant in that sense.
HIS HONOUR: I’ll allow the question. [OD], are you able to tell us whether you completed your studies?---No.
Meaning you did not complete them?---No. Yes, meaning I haven’t completed.
Yes. Yes. Proceed. Thank you, Ms Austin.
ACCUSED: So was that because he failed or because he dropped out and he said he was a student now so - - -
HIS HONOUR: We’ll just pause for a moment, Ms Austin. We’ll take one question at a time if we can. You’re being asked, [OD], why it was in essence, you hadn’t completed your studies. Are you able to say?---Ah, I decided that the degree wasn’t right for me.
Yes?---But I’ll add to that question that I was writing a blog ah, because I was studying a communications degree, and I wrote a blog as a part of that degree. And that was published on the internet and I received correspondence from Fiona in relation to that blog, which was very traumatising and the fact that she knew the campus that I was on
All right. Well, just pause there for a moment. What we’re going to do, Ms Austin, is try and focus on the period, 2014 to 2017, say, rather than more recent events.
ACCUSED: This is – this is that period.
HIS HONOUR: All right. What’s the – you just mentioned an event where you writing a blog, [OD]. When did that occur?---That was in 2016.
Yes?---Ah, yeah.
All right. Well, you proceed with your questions, Ms Austin.
ACCUSED: Okay, so are you suggesting via that comment, that you decided that the degree wasn’t right for you in 2016?---Ah, what relevance does that have?
HIS HONOUR: I think if you – if you wouldn’t mind, [OD], just attending to that question and answering it for us.
WITNESS: Ah, the degree wasn’t right for me. I studied that degree during 2016 and then didn’t continue on into 2017. So, in that period of time, I decided not to continue studying that degree.
ACCUSED: All right. So, what did you do after you dropped out of uni?---Ah, that’s going into 2017. I started working in hospitality.
All right. So, you were working in hospitality right up until the pandemic started, is that correct?
[PROSECUTOR]: How is that relevant, Your Honour?
WITNESS: Ah - - -
HIS HONOUR: Well, there is an objection - - -
[PROSECUTOR]: I do object to that question, Your Honour.
HIS HONOUR: Yes. There is an objection as to relevance, Ms Austin?
ACCUSED: All right, so you were employed essentially. You had a job?---Yes.
Yes. So, you went to school. You completed your secondary schooling, you started university, you dropped out. You got a job?---Yes.
All right. Did you go on any holidays or trips in all this time period, leading up to where we are today?
HIS HONOUR: No. No, Ms Austin. I’m going to ask that you focus – the witness’ evidence focussed on that period 2014. Let’s say through until 2017, and his evidence as to how he felt at that time is what is in before the jury now.
ACCUSED: Yes, and that’s what I’m saying - - -
HIS HONOUR: Whether he went on holiday subsequent to that - - -
ACCUSED: No, not subsequent. During that - - -
HIS HONOUR: During that?
ACCUSED: - - - time period.
HIS HONOUR: Yes, I see. Very well, that’s fine. Sorry, [OD]. I interrupted.
ACCUSED: So, all of these questions are for that time period.
HIS HONOUR: Very well, that’s - - -
ACCUSED: They’re not after.
HIS HONOUR: - - - fine, I apologise for interrupting,
Ms Austin. Perhaps if you wouldn’t mind just putting the question, so it’s clear for the witness.
ACCUSED: All right. (To witness) So, thinking about the time period that this case relates, had you been on any holidays, trips away?---Yes.
Furthermore, in his Charge, the judge was at pains to ensure that the jury did not act on any perception they might entertain concerning the judge’s attitude to the applicant. Thus he directed the jury:
It is what you think is important that matters, not your perception of what you might think I think is important. I want to leave you in a position where at the end of this charge, you will not really know what opinions I hold, it is not for me to have an opinion. I am the trial judge, you are the finders of the facts, you are the judges of the facts and what you think that matters. So you will consider all of the evidence whether I refer to it or not and you will decide what is important.
…
Now as you know my role as the judge is to explain to you the principles of law that you must apply to make your decision and you must accept and follow all of my legal directions. I should make it clear that it is unlikely that I will make any comments about the evidence but if I do make a comment about the evidence you must not give it any extra weight because I as the judge have made the comment. You must disregard any comment I may make about the evidence unless you agree with that view after making your own independent assessment of the evidence. That is what I mean when I say that you alone are the judges of the facts in this case.
Now in the same vein, if you thought that there were occasions during this trial when I was perhaps less patient than I should have been with Ms Austin, you must not read anything into that. Your focus will be on the issues and you are not to be distracted by considerations of that type. As I have emphasised, you alone are the judges of the facts in this case.
And albeit that I have not had the benefit of full argument, upon reading in full the judge’s directions to the jury, it is far from obvious to me that the judge demonstrated any hostility to the applicant or her case; indicated to the jury a preferred verdict; or in any other way delivered an unbalanced charge.
I am also unable to see much merit in the proposed application for leave to appeal against sentence, and would specifically reject the allegations that the sentence ‘was influenced by the hostility of the Trial Judge’, ‘was designed to cause the greatest possible harm to [the applicant]’ or was ‘designed to create the most scandalous of media reporting’.
In the course of his sentencing remarks, the judge noted that the applicant had refused to attend appointments that had been made for her to be psychiatrically assessed,[23] and observed:[24]
Accordingly, although I think it likely that you are afflicted by some kind of psychological or psychiatric condition, in the absence of any evidence I cannot make any sensible assessment as to how your condition might bear on sentence.
[23]Reasons, [111]–[115].
[24]Ibid [116].
These observations accord with my own. In the course of the application before me, the applicant’s presentation was at times truculent, strident, sarcastic, supercilious and impertinent, She seemed unable or unwilling to present her application in a balanced manner. I have, of course, put those matters to one side, and have endeavoured to deal with the application in a wholly objective manner.
Ultimately, I have been unable to conclude that any exceptional circumstances exist that could justify a grant of bail. Significantly, there is no prospect of the applicant being denied a period of conditional release on parole by the refusal of bail, and, as best I can judge, the proposed applications for leave to appeal do not appear to have much in the way of merit.
The application for bail will be refused.

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2 November 2022