Bilal v Middlemiss - [2022] ACTSC 225

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bilal v Middlemiss
Citation:	[2022] ACTSC 225
Hearing Date:	11 August 2022
DecisionDate:	11 August 2022
Before:	Kennett J
Decision:	Bail is refused.
Catchwords:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – Bail – where applicant appealing against sentence in Magistrates Court seeks bail pending appeal hearing – whether there are special or exceptional circumstances favouring grant of bail – bail refused
Legislation Cited:	Bail Act 1992 (ACT) ss 9E, 22 Criminal Code 1995 (Cth) ss 474.15, 474.17 Magistrates Court Act 1930 (ACT) s 216
Cases Cited:	Ex parte Maher [1986] 1 Qd R 303 Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 House v The King (1933) 55 CLR 499 R v De Simoni (1981) 147 CLR 383
Parties:	Ali Hassan Bilal ( Applicant) Jude Joseph Middlemiss ( Respondent)
Representation:	Counsel J Purnell SC ( Applicant) K McCann ( Respondent)
Solicitors Aulich Criminal Law ( Applicant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 26 of 2022
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 2 August 2022 Case Title: Middlemiss v Bilal Citation: [2022] ACTMC 17

KENNETT J:

Mr Bilal, who I will refer to as the offender, pleaded guilty in relation to five offences which can be summarised as two offences of using a carriage service to make a threat to cause serious harm contrary to s 474.15(2) of the Criminal Code 1995 (Cth) (Code) and three offences of using a carriage service in a way that a reasonable person would regard as menacing contrary to s 474.17(1) of the Code.

A hearing on sentence was conducted on 21 July 2022 before the Chief Magistrate. The sentence was handed down with reasons given orally on 2 August 2022. The total effective sentence was one of 13 months’ imprisonment which was to be which suspended after serving four months upon entering into a recognisance order for a period of 18 months.

Prior to being sentenced, the offender had been on bail and, so far as I understand, had complied substantially with the conditions of that bail.

He filed a notice of appeal against the sentence on 4 August 2022 and, by an application made on 9 August 2022, seeks bail pending the hearing of the appeal.

As a result of s 9E of the Bail Act 1992 (ACT) (Bail Act), bail must not be granted in a case such as this unless the Court is satisfied that special or exceptional circumstances exist. The ordinary criteria for bail set out in s 22 of the Bail Act are not of themselves special or exceptional. Section 9E thus imposes a threshold test that must be met before those criteria are considered.

Decisions in this Court have held that a special circumstance is ordinarily established if, absent a grant of bail, the utility of the appeal would be compromised by an unacceptably large proportion of the sentence having…

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 Bilal v Middlemiss

Details

AGLC: Bilal v Middlemiss [2022] ACTSC 225
Case: [2022] ACTSC 225
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory dealt with an application for bail pending an appeal against sentence. The applicant, Ali Hassan Bilal, had been sentenced to 13 months imprisonment, suspended after four months on a recognisance order of 18 months. Bilal appealed the sentence and applied for bail pending the appeal. The Court was required to decide whether special or exceptional circumstances existed for granting bail under s 9E of the Bail Act 1992 (ACT). The Court considered whether the appeal had reasonable prospects of success and whether the period Bilal would serve in custody before the appeal would compromise the appeal's utility.

The Court found that the appeal had reasonable prospects of success based on two arguable points. First, the sentencing magistrate may have erred by considering threats to cause very serious harm as an aggravating factor, contrary to the principle established in House v The King. Second, the magistrate may have erred by relying on her own knowledge about the Rebels Outlaw Motorcycle Gang, without evidence before her. The Court also noted that the appeal was expedited and would be heard in late August, meaning Bilal would serve around a quarter of his custodial sentence before the appeal. While this was not ideal, it did not render the appeal futile to an unacceptable extent. Consequently, the Court concluded that special or exceptional circumstances did not exist for granting bail, and the application was refused.

Orders