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Cooper v Corvisy

Cooper v Corvisy

Case [2010] ACTSC 165 22 November 2010

Bail Application

Presumption Against Bail

Special or Exceptional Circumstances

Criminal Law

Bail Law

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BRADLEY GRANT COOPER V CATHERINE CORVISY

[2010] ACTSC 165 (22 November 2010)

CRIMINAL LAW – bail – statutory presumptions – presumption against bail for person sentenced to imprisonment - Bail Act 1992 (ACT) s 9E.

BAIL – applicant required to show special or exceptional circumstances exist favouring bail.

BAIL – special or exceptional circumstance – applicant’s deteriorating mental health in custody – material presented to support does not show special or exceptional circumstances – bail refused.

s 9E of the Bail Act 1992 (ACT)

In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145
In the matter of an application for bail by Allen [2009] ACTSC 64
Chamberlain v The Queen (1983) 153 CLR 514
Marotta v The Queen (1999) 73 ALJR 265
United Mexican States v Cabal (2001) 209 CLR 165
R v Verdins (2007) 16 VR 269
R v Burton, (1974) 3 ACTR 77
In the matter of an application for bailby Henderson [2008] ACTSC 109

EX TEMPORE JUDGMENT

No. SCA 74 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 22 November 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 74 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BRADLEY GRANT COOPER
Appellant

CATHERINE CORVISY

Respondent

ORDER

Judge:  Refshauge J
Date:  22 November 2010
Place:  Canberra

THE COURT ORDERS THAT:

The application for bail is dismissed.

The applicant, Bradley Grant Cooper, was convicted of a charge of assault committed on 13 January 2010. He was sentenced to imprisonment for nine months to be released after six months and to be subject to a good behaviour order for 24 months. He has appealed against that sentence and now applies for bail pending the hearing of the appeal.

The Facts

Mr Cooper was in a relationship with the victim of the assault since about 2008. It was apparently a volatile relationship for the victim was apparently charged with malicious damage when she slashed his tyres and is said to have assaulted him, giving him a split lip.

Nevertheless, this offence was potentially a very serious one. Mr Cooper was driving along Canberra Avenue when he noticed the victim’s car pulling alongside him in order to pass him. As she came alongside Mr Cooper’s vehicle she noticed Mr Cooper appeared to yell at her and he then swerved his vehicle towards her vehicle, causing her to fear, that, given the speed and other vehicles around them, there would be a major accident.

The victim swerved to the right, away from Mr Cooper’s vehicle, thus avoiding a collision and forcing her to drive on the shoulder of the road. As her car headed for a tree, she swerved back into the right hand lane of the road. While no-one was physically injured the victim was very shaken and scarred.

Mr Cooper was arrested at his workplace the next day. He declined to participate in an interview with police.

The victim gave a Victim Impact Statement, which, unsurprisingly, expressed the great fear that…

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 Cooper v Corvisy

Details

AGLC: Cooper v Corvisy [2010] ACTSC 165
Case: [2010] ACTSC 165
Decision Date

CaseChat Overview and Summary

Bradley Grant Cooper has appealed against his conviction and sentence for assault, which was committed on 13 January 2010, and has applied for bail pending the hearing of that appeal. Catherine Corvisy, the victim, has been named as the respondent to the appeal and the application for bail. The appeal has been listed for hearing on 8 December 2010.

The primary issue for the court to decide was whether special or exceptional circumstances existed to favour the grant of bail to Mr Cooper. Given that Mr Cooper had been convicted of an offence and sentenced to imprisonment, but had appealed against that sentence, s 9E of the Bail Act 1992 (ACT) applied. Under that section, the court must not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail. In this case, Mr Cooper had to show that special or exceptional circumstances existed to favour the grant of bail. The court was required to consider the nature and extent of any special or exceptional circumstances, as well as the seriousness of the offence, in deciding whether to grant bail.

The court found that Mr Cooper had not demonstrated the existence of special or exceptional circumstances favouring the grant of bail. The appeal was due to be heard in just over two weeks, and Mr Cooper had been in custody for less than a month. The court considered that the proximity of the appeal hearing provided no basis for finding special or exceptional circumstances favouring the grant of bail. The court also noted that the offence was one of great seriousness, which not only put the life of the victim at risk but also other road users. The court found that while Mr Cooper had a real chance of success in the appeal, that was not so great that it constituted a special or exceptional circumstance in itself. The only other matter was the fact that Mr Cooper's mental condition had deteriorated. However, the court found that this was regrettable but part of the inevitable consequences of imprisonment. In the face of the information before it, the court could not say that this issue met the test currently set out in R v Verdens to raise this issue to a matter of special and exceptional circumstances. The application for bail was dismissed.

The court ordered that the application for bail be dismissed.

Orders