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Degioannis v David (No 2)

Degioannis v David (No 2)

Case [2015] ACTSC 196 6 July 2015

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HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Degioannis v David (No 2)
Citation:	[2015] ACTSC 196
Hearing Date(s):	3 July 2015
DecisionDate:	6 July 2015
Before:	Refshauge J
Decision:	1. The application for bail is refused. 2. The appeal be listed for hearing at 10:00 am on 24 July 2015.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – Bail – Intentional wounding – Application for bail pending hearing of appeal from decision of Magistrates Court – Special and exceptional circumstances – Portion of custodial sentence served before the appeal is heard – Prospects of success on the appeal
Legislation Cited:	Bail Act 1992 (ACT), ss 5, 9E, 20C Crimes (Sentencing) Act 2005 (ACT), s 33(1)(w) Human Rights Act 2004 (ACT), s 18 Magistrates Court Act 1930 (ACT), s 216
Cases Cited:	Aldridge v The Queen [2011] ACTCA 20 Chamberlain v The Queen (No 1) (1983) 153 CLR 514 Degioannis v David [2015] ACTSC 166 Director of Public Prosecutions v SKA [2009] NSWCA 51 Ex parte Maher [1986] 1 Qd R 303 Fusimalohi v The Queen [2012] ACTCA 49 In the Matter of an Application for Bail by Massey [2008] ACTSC 145 Lee v The Queen (2012) 224 A Crim R 278 R v Giordano (1982) 31 SASR 241 R v Kristiansen [2008] ACTSC 83 R v Rubino [2012] ACTSC 157 Re an Application for Bail by Nuno Rodridgues [2008] ACTSC 50 Sherd v The Queen (2011) 5 ACTLR 290
Parties:	Shannon Degioannis (Appellant) The Queen (Respondent)
Representation:	Counsel Shannon Degioannis (Self-represented via videolink) (Appellant) Mr J Hiscox (Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 18 of 2015; SCA 42 of 2015
Decision under appeal:	Court/Tribunal: ACT Magsitrates Court Before: Magistrate Morrison Date of Decision: 13 February 2015 and 10 April 2015 Case Title: R v Shannon David Degioannis Court File Number(s): CC 5894 of 2014

REFSHAUGE J:

An incident occurred at an address in Lyneham on 9 June 2014, as a result of which a male was admitted to the Canberra Hospital with a stab wound in his abdomen and the applicant, Shannon David Degioannis, was charged with intentionally wounding the male, the complainant.

The allegation was that Mr Degioannis had stabbed the complainant with a knife, concealed on a key ring for the keys of a car on which he was doing some repair work at the premises. On 13 February 2015, Mr Degioannis was convicted of that offence and on 10 April 2015 he was sentenced to 15 months imprisonment from 1 February 2015, to be suspended on 31 October 2015; that is, after serving nine months of the sentence.

On 6 March 2015, Mr Degioannis appealed against the conviction and sentence. The filing of the appeal stays the sentence. See s 216 of the Magistrates Court Act 1930 (ACT). Mr Degioannis has now applied for bail pending the hearing of the appeal.

There are two jurisdictional issues that must be addressed…

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 (No 2)

Details

AGLC: Degioannis v David (No 2) [2015] ACTSC 196
Case: [2015] ACTSC 196
Decision Date: 6 July 2015

CaseChat Overview and Summary

Degioannis v David (No 2) involved the defendant, Degioannis, seeking bail pending the hearing of an appeal from a decision of the Magistrates Court. The Magistrates Court had convicted Degioannis of intentionally wounding another person, resulting in a custodial sentence. Degioannis applied to the Supreme Court for bail pending the outcome of his appeal against the conviction and sentence. The appeal was set down for hearing before a single judge of the Supreme Court. The legal issues before the court included whether the special and exceptional circumstances existed to justify the grant of bail pending the appeal, and whether the portion of the custodial sentence served before the appeal is heard should be taken into account. The court also had to consider the prospects of success on the appeal.

The court considered the principles for granting bail pending appeal, which included the existence of special and exceptional circumstances. The court held that the principles for granting bail pending appeal were not dissimilar to those for granting bail pending trial. The court also noted that the portion of the custodial sentence served before the appeal is heard should be taken into account. However, the court held that the appellant did not satisfy the criteria for special and exceptional circumstances. The court held that the appellant had not demonstrated a real prospect of success on the appeal, and that the appeal was unlikely to succeed. The court also held that the appellant had not demonstrated any special or exceptional circumstances that would justify the grant of bail pending appeal.

The application for bail was refused. The appeal was listed for hearing at 10:00 am on 24 July 2015. The court held that the appellant had not demonstrated a real prospect of success on the appeal, and that the appeal was unlikely to succeed. The court also held that the appellant had not demonstrated any special or exceptional circumstances that would justify the grant of bail pending appeal. The court held that the portion of the custodial sentence served before the appeal is heard should be taken into account, but this did not alter the outcome of the application for bail. The court held that the appellant had not satisfied the criteria for special and exceptional circumstances.

Orders

Orders of the court

1. The application for bail is refused.

2. The appeal be listed for hearing at 10:00 am on 24 July 2015.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Degioannis v David (No 2) [2015] ACTSC 196

Most Recent Citation

Nchouki v The Queen [2023] ACTCA 8

Cases citing this decision · 1 of 1 shown

Nchouki v The Queen
[2023] ACTCA 8 Para 1

…As Refshauge J observed in Degioannis v David (No 2) [2015] ACTSC 196 at [23], “[i]t is, of course, difficult to assess the prospects of success on an appeal on a bail application. That difficulty does not obviate the requirement .” In assessing the prospects of success of an appeal, it is not possible or desirable…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

Degioannis v David
[2015] ACTSC 166 Para 1

…Secondly, Mr Degioannis has already made a bail application to this Court. It was dismissed. See Degioannis v David [2015] ACTSC 166. This gives rise to the second jurisdictional issue, namely, that s 20C of the Bail Act permits a court only to consider a further application for bail if the following conditions are…
Lee v The Queen
[2014] HCA 20 Para 1

…1) (1983) 153 CLR 514 and more recently in Director of Public Prosecutions v SKA [2009] NSWCA 51 at [21]. See also the discussion of these issues in Lee v The Queen (2012) 224 A Crim R 278 at 289-290; [66]-[68].…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…spontaneous expressions of remorse at the time of offending. It would seem that such an apology would demonstrate remorse. See Fusimalohi v The Queen [2012] ACTCA 49 at [32]-[33].…
R v Rubino
[2012] ACTSC 157 Para 1

…I briefly revisited the issue in R v Rubino [2012] ACTSC 157 at [18]-[24], holding that, while it was not necessary for any change in circumstances or fresh evidence to justify in and of itself the grant of bail, the threshold was not put so low that just any change of circumstances or fresh evidence would satisfy…
Sherd v The Queen
[2011] ACTCA 17 Para 1

…circumstances, may be sufficient of itself so long as there is at least an arguable case on appeal and the appeal is not vexatious or frivolous. See Sherd v The Queen (2011) 5 ACTLR 290 at 299-301; [47]-[63].…
Aldridge v The Queen
[2011] ACTCA 20 Para 1

…and the portion of the custodial sentence that will be served in full‑time custody before the determination of the appeal. See Aldridge v The Queen [2011] ACTCA 20 at [11]. I shall address each of these matters in turn.…
Director of Public Prosecutions v SKA
[2009] NSWCA 51 Para 1

…uch as Ex parte Maher [1986] 1 Qd R 303; Chamberlain v The Queen (No 1) (1983) 153 CLR 514 and more recently in Director of Public Prosecutions v SKA [2009] NSWCA 51 at [21]. See also the discussion of these issues in Lee v The Queen (2012) 224 A Crim R 278 at 289-290; [66]-[68].…
In the matter of an application for bail by Massey
[2008] ACTSC 145 Para 1

…ividually or in combination may constitute special or exceptional circumstances, as pointed out in In the Matter of an Application for Bail by Massey [2008] ACTSC 145 at [28], are not limited or prescribed.…
R v Kristiansen
[2008] ACTSC 83 Para 1

…l, the threshold was not put so low that just any change of circumstances or fresh evidence would satisfy the requirement. Indeed, in R v Kristiansen [2008] ACTSC 83 at [20], I held that "a liberal interpretation" should be given to this requirement.…
IN THE MATTER OF AN APPLICATION FOR BAIL BY NUNO RODRIGUES
[2008] ACTSC 50 Para 1

…The requirement for a change in circumstances has had some consideration by this Court. In Re an Application for Bail by Nuno Rodridgues [2008] ACTSC 50 at [20], I considered the predecessor provision to s 20C of the Bail Act , which was in relevantly identical terms, and commented favourably on a submission that…
Chamberlain v The Queen (No 1)
[1983] HCA 13 Para 1

…ntence. This will address the concerns that have been expressed in decisions such as Ex parte Maher [1986] 1 Qd R 303; Chamberlain v The Queen (No 1) (1983) 153 CLR 514 and more recently in Director of Public Prosecutions v SKA [2009] NSWCA 51 at [21]. See also the discussion of these issues in Lee v The Queen (2012)…

Legislation cited in this decision · 4

Bail Act 1992 (ACT)
20C, 5, 9E 4 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
33(1)(w) 2 mentions (from Para 1)
Human Rights Act 2004 (ACT)
18 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)