Degioannis v David (No 2)
[2015] ACTSC 196
•6 July 2015
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) |
Cases Cited: | Aldridge v The Queen [2011] ACTCA 20 Chamberlain v The Queen (No 1) (1983) 153 CLR 514 |
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 in this bail application. The first is that as a person who has been sentenced to imprisonment, though, because of the stay, not serving the sentence (see the prohibition in s 5 of the Bail Act 1992 (ACT)), he is required, under s 9E of the Bail Act, to show special and exceptional circumstances before a court can grant bail. I shall deal with that below.
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 met, namely:
(a) that since the last application for bail there has been a change of circumstances relevant to the granting of bail; or
(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.
To deal with this issue it is necessary to consider the earlier application and what it decided. The appeal was, at the time of that earlier bail hearing, listed to be heard on 27 August 2015, namely, just short of seven months of the nine months unsuspended custodial portion of the sentence Mr Degioannis was serving.
When the date was able to be brought forward to 28 July 2015, the Court held that this earlier date, when combined with the Court not being able to assess the prospects of success of the appeal as good, meant that the requirement for special or exceptional circumstances under s 9E of the Bail Act was not satisfied. The Court, however, confirmed the date for hearing of the sentence appeal on 28 July 2014.
Unfortunately, for reasons not immediately apparent to me, the date had later to be vacated and the hearing of the appeal was re-listed for the original date of 27 August 2015. This, it was submitted by Mr Degioannis, was a relevant change in circumstances.
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 because of the requirement that such a provision be construed consistently with s 18 of the Human Rights Act 2004 (ACT), the apparently high threshold should be moderated in its strictness.
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 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 this case, the change of date for the hearing of the appeal was a relevant consideration in the decision to refuse bail in Degioannis v David. The issue of the date on which an appeal can be determined relative to the expiration of the unsuspended custodial portion of a sentence is a very relevant factor in determining whether there are special or exceptional circumstances relevant to the grant of bail, and indeed, in appropriate 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].
It seems to me that the change of date for the hearing of the appeal was a change in circumstances relevant to a grant of bail such as to fulfil the requirement of s 20C of the Bail Act. Mr J Hiscox, counsel for the respondent, did not contend otherwise. Thus, I should consider the application.
Special or Exceptional Circumstances on Appeal
There have been a number of cases that have considered whether there are special or exceptional circumstances favouring the grant of bail when bail is sought pending an appeal. The matters that may be considered which individually 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.
It is, however, important to consider the prospects of success of the appeal 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.
Prospects of Success, Conviction Appeal
In Degioannis v David at [15], Penfold J pointed out that counsel for Mr Degioannis chose not to address her on the prospects of success of the appeal against conviction. Mr Degioannis was critical of his counsel for that omission, submitting that there were good prospects of success. He relied on a number of matters.
The first was that there were a number of inconsistencies in the evidence of the witnesses for the prosecution, both internally and between them. He identified a number of them to me. He submitted that these made their evidence unreliable, leading to the conclusion that conviction was unsafe.
The second matter was that he referred to an expression of regret to made at the time of the incident, namely, "I'm sorry, man; I shouldn't have done it. I'll take the repercussions." Mr Degioannis says that that shows remorse and lack of intent to wound as alleged.
The third matter was that a medical examination of Mr Degioannis, two days later, showed swelling on his scapular and redness on his paraspinal muscles. This, he says, is corroborative of his case that he had been hit first by the complainant and was acting in self‑defence.
The fourth matter was that the prosecution witnesses had known each other for a long time and would be likely to support each other. I did not understand that Mr Degioannis was suggesting that they had concocted their evidence but certainly that their association should have caused the learned magistrate to approach their evidence with greater caution.
The fifth matter was that the complainant and one of the witnesses lied to the ambulance officers when they arrived and to police about what happened, suggestive, it seemed to be submitted, of a consciousness that the complainant had actually been the attacker.
The sixth matter related to further evidence that Mr Degioannis wished to have admitted about a motor vehicle of his that was stolen and later located in the driveway of the residence of a prosecution witness. As I understood it, this was said to raise serious doubts about the credibility of the witness.
This morning Mr Degioannis, before I proceeded with my reasons for judgment, raised another matter which suggested that a prosecution witness also lied in the witness box when he referred to being arrested for trafficking in heroin, a matter which it was said had led to him having ill feelings against Mr Degioannis. I looked at the passage from the transcript and it did not seem to me that the witness was, in fact, lying about being arrested for that matter, and so I do not consider it further.
It is, of course, difficult to assess the prospects of success on an appeal on a bail application. That difficulty does not obviate the requirement. Indeed, some authorities suggest that it is not possible to assess the prospects of success unless they are obvious. See R v Giordano (1982) 31 SASR 241 at 243. Sometimes, as the court there pointed out, the prospects will be obvious.
It is also undesirable for a court considering a bail application to analyse the alleged errors in too great a detail. That is the function of the appellate court. The learned Magistrate here gave comprehensive reasons for the findings he made. His Honour was clearly aware of the issues and addressed them. His Honour was aware of the inconsistencies in the evidence of the prosecution witnesses. His Honour noted that there were differences in the evidence of the complainant and the other witnesses present at the time of the stabbing but held that "the overall thrust" of their evidence was consistent with the prosecution case.
Later, his Honour again addressed the issue and noted a prosecution concession that there were "not insignificant consequences" - I think that should be "inconsistencies" - "in the testimony of the prosecution witnesses." He took that into account, but rejected the defence submission that they were critical, holding that they were "largely about peripheral matters" and "not material enough to give rise to concerns about the reliability of the witnesses".
His Honour was also aware of the expression of regret that Mr Degioannis uttered shortly after the incident. Indeed, his Honour quoted it in full. His Honour was well aware of the reliance by the defence on accident and self‑defence. His Honour also referred expressly to the subsequent medical examination of Mr Degioannis. He was clearly sceptical of that, pointing out that "the only evidence of the source of the marks on the defendant's back comes from the defendant himself".
That evidence, his Honour held, did not affect the conclusion based on "the other overwhelming evidence of guilt". His Honour was also aware of the relationships between the prosecution witnesses and expressly described them. There was no reference to any submission about concoction or bias because there was no submission by defence counsel to this effect, relieving the learned magistrate of the need to go further than he did.
His Honour also addressed the lies told by some witnesses to ambulance officers and police. His Honour referred expressly to the explanation given by one witness as to why he lied. His Honour also expressly said that he took those facts into account in his assessment of the whole of the evidence.
As to the matter of the fresh evidence, his Honour obviously did not address it.
An important matter on which the learned Magistrate did rely was what his Honour held to be admissions made by Mr Degioannis in telephone calls which were recorded. These were, his Honour held, highly probative of guilt, and the content sufficient to assist him in rejecting the evidence of Mr Degioannis, as his Honour was entitled to do.
I cannot, as indicated above, come to a conclusion about whether any of these matters will ultimately be resolved on appeal in favour of Mr Degioannis. Nevertheless, I can and do find that all the matters raised by Mr Degioannis, except the further evidence, were addressed by the learned Magistrate in a way that was rational, apparently based on the evidence and not obviously in error. I do not consider that the matter of the further evidence was of such significance that it throws the ultimate verdict, or the reasoning leading to it, into particular doubt.
While I accept that the matters raised by Mr Degioannis provide some basis for suggesting that there was an arguable case for him to pursue, the prospects of success on the appeal are not so strong that this would justify a grant of bail.
Prospects of Success, Sentence Appeal
Penfold J, in Degioannis v David, carefully assessed the prospects of success on the sentence appeal. Unless a new matter arises or I am convinced that her Honour's assessment was wrong, I should accept that assessment.
Her Honour rejected two of the three alleged errors. As to the first ground of appeal, that the sentence was manifestly excessive, her Honour noted that there were no obvious disparities between the sentence imposed on Mr Degioannis and the comparable sentences to which reference was made. Her Honour noted, also, very relevant differences which explained differences between the sentences improved the comparable matters referred to and that imposed on Mr Degioannis.
The only further matter which Mr Degioannis relied on in the bail application before me was that he had expressed remorse and that the learned Magistrate, on sentencing, had not taken that into account. Remorse is a matter that is required to be taken into account under s 33(1)(w) of the Crimes (Sentencing) Act 2005 (ACT), expressed as whether the offender has "demonstrated remorse", which may include 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].
The reasons for sentence do not specifically refer to remorse. Nevertheless, in the reasons for conviction the learned Magistrate did expressly cite the expressions to which I have referred, strongly suggesting that his Honour was aware of them. In any event, it was open to his Honour to hold that they were not, in fact, expressions of true remorse.
On the other hand, there was no submission from counsel for Mr Degioannis that remorse should be taken into account. Even were the expressions of remorse to be taken into account, the offence was such that it is difficult to see that the sentence was so obviously manifestly excessive that the sentence appeal would clearly be upheld, though I do not say that it is not arguable.
Period Spent in Custody
Although I have found that, while arguable, the appeals both as to conviction and as to sentence are not so clear that I can assess them as having good prospects of success, this does not mean that bail cannot be granted.
If, for example, Mr Degioannis would be detained beyond the expiry of the unsuspended custodial portion of his sentence, that would, in my view, justify a grant of bail, even with the prospects of success of the appeal, as I have described them. That, however, is not the position. It seems that Penfold J was inferentially of the view that were the appeal not to be able to be heard until 27 August 2015, that would likely justify a grant of bail. I would respectfully agree.
I have now determined, however, that the appeal can be heard on 24 July 2015. That is even earlier than the date given by her Honour. In general terms, it seems to me that it is always better for an appeal to be heard promptly to address the issues of delay and the passage of a substantial portion of an appellant's sentence. 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) 224 A Crim R 278 at 289-290; [66]-[68].
Given that such an earlier date has already been given to Mr Degioannis, however, and then taken away, I have made sufficient inquiries to assure myself that this date is now a date as certain as it can be. It is more certain than that previously given and I am assured by the Registrar that it will not be vacated, except in extraordinary circumstances. If, despite the assurances I have been given, that were to occur, it seems to me that this would provide very strong grounds for the grant of bail.
Conclusion
In the circumstances, I am satisfied that Mr Degioannis has not made out a case for bail. I am satisfied that the appeal can be heard promptly from now and that this is the preferable approach. I shall, accordingly, make appropriate orders.
I shall order that the application for bail be refused.
I shall order that the appeal be listed for hearing at 10:00 am on 24 July 2015.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 20 August 2015 |
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