BI v The Queen - [2017] ACTCA 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	BI v The Queen
Citation:	[2017] ACTCA 53
Hearing Date:	9 November 2017
DecisionDate:	10 November 2017
Before:	Robinson AJ
Decision:	See [28] – [30]
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Application for a stay of sentence pending the finalisation of an appeal – application for bail – special or exceptional circumstances.
Legislation Cited:	Bail Act 1992 (ACT) s 9E Supreme Court Act 1933 (ACT) s 37J(1)(d)
Cases Cited:	Hughes v The Queen [2017] HCA 20; 344 ALR 187 MFA v The Queen [2002] HCA 53; 213 CLR 606 Quzag v The Queen [2015] ACTCA 37 R v Kirkman (1987) 44 SASR 591 Sharma v The Queen [2016] ACTCA 60 Sherd v The Queen [2011] ACTCA 17; 212 A Crim R 226
Parties:	BI (Applicant) The Queen (Respondent)
Representation:	Counsel Mr M Kukulies-Smith (Applicant) Mr A Williamson (Respondent)
Solicitors Kamy Saeedi Law (Applicant) Office of the ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 5 of 2017
Decision under appeal:	Court: ACT Supreme Court Before: Refshauge J Date of Decision: 16 December 2016 Case Title: R v BI Court File Number: SCC 64 of 2016

ROBINSON AJ:

BI has applied for a stay of his sentence, and for bail, pending the determination of his appeal against conviction in respect of six counts on an indictment presented against him.

BI did not appeal against the sentences imposed on him.

A short chronology of events is as follows:

(a)On 16 September 2015, BI was arrested by police.
(b)On 28 November 2016, BI proceeded to trial before Refshauge J on an indictment containing 21 counts in respect of four complainants. The offences can be characterised, for present purposes, as sexual offences against children.
(c)On 16 December 2016, BI was found guilty by a jury of six offences. He was acquitted of 15 offences, which included one verdict by direction.
(d)On 21 March 2017, Refshauge J sentenced BI to an overall period of imprisonment of four years with a non-parole period of two years. The sentence commenced on 16 September 2015.
(e)BI appealed against conviction. The hearing of the appeal came on before Elkaim J, Bromwich J and myself on 31 October 2017. The Court reserved its decision.

In this application, I am exercising the powers of the Court of Appeal pursuant to s 37J (1)(d) of the Supreme Court Act 1933 (ACT).

It will not have gone unnoticed that BI has served his minimum term and has been eligible for possible release since 16 September 2017. In the Australian Capital Territory, the body given the task of determining whether to release a prisoner to parole is the Sentence Administration Board.

By 14 August 2017, no doubt because the 15 September date was looming, a Pre-Release Report came into existence. Two issues were raised in respect of any release. The first was that BI had not engaged in any appropriate treatment programs whilst in custody. The…

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 BI v The Queen

Details

AGLC: BI v The Queen [2017] ACTCA 53
Case: [2017] ACTCA 53
Decision Date: 10 November 2017

CaseChat Overview and Summary

The applicant, BI, sought a stay of sentence and bail pending the finalisation of an appeal against a conviction and sentence imposed by the District Court of New South Wales. The application was heard by Robinson AJ in the Supreme Court of New South Wales.

The central legal issue before the Court was whether there were special or exceptional circumstances warranting the grant of a stay of sentence and bail to the applicant, notwithstanding the general rule that bail is not granted pending appeal after conviction and sentence.

Robinson AJ considered the principles governing applications for bail pending appeal, noting that such applications are exceptional and require the applicant to demonstrate special or exceptional circumstances. The Court reviewed the evidence presented by the applicant, which included submissions regarding the grounds of appeal and the applicant's personal circumstances. Ultimately, the Court found that the applicant had not established the necessary special or exceptional circumstances to justify departing from the usual course of the law.

The application for a stay of sentence and bail was therefore dismissed.

Orders

Orders of the court

See [28] – [30]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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