Degioannis v David - [2015] ACTSC 166

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Degioannis v David
Citation:	[2015] ACTSC 166
Hearing Date:	17, 18 June 2015
DecisionDate:	18 June 2015
Before:	Penfold J
Decision:	Bail is refused
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail pending hearing of appeal from decision of Magistrates Court – significant portion of immediate custodial time to be served before appeal could be heard – prospects of success not apparently good – special or exceptional circumstances not established – bail refused.
Legislation Cited:	Bail Act 1992 (ACT), s 9E Magistrates Court Act 1930 (ACT), s 216
Cases Cited:	House v The King (1936) 55 CLR 499 In the matter of an application for bail by Fakatounaulupe Ngata [2015] ACTSC 139 R v Ang [2014] ACTCA 17 R v Bao [2013] ACTSC, Penfold J (16 September 2013) R v Leach [2011] ACTSC, Penfold J (1 February 2011) R v Thompson [2011] ACTSC, Higgins CJ (10 June 2011) R v Wagle (No. 2) [2014] ACTSC 160 Re Application for Bail by Zoudi (2006) 168 A Crim R 444 Sherd v The Queen (2011) 5 ACTLR 290 The Queen v Williams [2014] ACTCA 30
Parties:	Shannon David Degioannis (Appellant) Joshua David (Respondent)
Representation:	Counsel Ms H Hayunga (Appellant) Ms S Gul (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCA 18 of 2015; SCA 42 of 2015

Introduction

Shannon Degioannis has applied for what is often referred to as appeal bail. He was found guilty in the Magistrates Court on 13 February this year of an offence of intentional wounding and was immediately remanded in custody. He was then sentenced in April this year to 15 months imprisonment to be suspended after nine months.

He has appealed both his conviction and his sentence.

Under s 216 of the Magistrates Court Act 1930 (ACT), the appeal operates to stay the conviction and sentence, and under that section he is entitled to apply for bail.

The applicant’s appeal is currently listed for hearing on 27 August this year, but I was told yesterday that it may be able to be heard on 28 July this year when a half-day is available.

The bail application

Under s 9E of the Bail Act 1992 (ACT), there is a presumption against bail being granted when a sentence is stayed by an appeal. This is effected by a legislative requirement that bail must not be granted unless the court is satisfied that special or exceptional circumstances exist favouring the granting of bail. The applicant points to the following matters as special or exceptional circumstances.

Special or exceptional circumstances

First, the applicant says that by the time his appeal is heard on 27 August, he will have served nearly seven months of his current nine months immediate custodial time, or nearly six months if the appeal can be brought forward as mentioned.

Secondly, while conceding that neither of these matters would constitute special…

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 Degioannis v David

Details

AGLC: Degioannis v David [2015] ACTSC 166
Case: [2015] ACTSC 166
Decision Date: 18 June 2015

CaseChat Overview and Summary

The appeal was lodged by the appellant, Degioannis, against a decision of the Magistrates Court which had denied him bail. The appellant was awaiting the outcome of a hearing on charges of aggravated break and enter, and aggravated robbery. The Magistrates Court had concluded that bail should be refused due to the seriousness of the offence and the risk of reoffending. The Court of Appeal was tasked with reviewing this decision and determining whether the appellant should be granted bail pending the appeal.

The central legal issues in the appeal were whether the appellant's prospects of success on appeal were sufficiently strong to warrant bail, and if there were any special or exceptional circumstances that should be considered. The court examined the appellant's previous criminal history and the nature of the current charges. The appellant had argued that the significant amount of time he would spend in custody before his appeal could be heard constituted an exceptional circumstance. However, the court found that his prospects of success on appeal were not apparently good, and that the appellant had not established any special or exceptional circumstances that would warrant a grant of bail.

The Court of Appeal found that the appellant's prospects of success on appeal were not promising, and that there were no special or exceptional circumstances present in this case that would warrant the grant of bail. The significant time the appellant would spend in custody before his appeal could be heard did not, in the court's view, constitute a special or exceptional circumstance. Therefore, the appeal against the decision of the Magistrates Court was dismissed, and bail was refused.

Orders

Orders of the court

Bail is refused

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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