Director of Public Prosecutions v Sullivan (No 2)
[2024] ACTSC 328
•1 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Sullivan (No 2) |
Citation: | [2024] ACTSC 328 |
Hearing Date: | 1 October 2024 |
Decision Date: | 1 October 2024 |
Before: | Baker J |
Decision: | See [29] |
Catchwords: | CRIMINAL LAW – application for bail pending appeal – bail revoked following guilty verdicts returned by jury – Notice of Appeal filed - where guilty verdicts appear inconsistent with not guilty verdicts – effect of conviction on risk of flight or failure to appear – prospects of appeal succeeding – bail granted |
Legislation Cited: | Bail Act 1992 (ACT) ss 9B, 9E, 20B, 22 Crimes Act 1900 (ACT) ss 24, 54, 60 |
Cases Cited: | Nchouki v The Queen [2023] ACTCA 8 R v Incandela (No 3) [2022] ACTSC 93 |
Parties: | Jake Sullivan ( Applicant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel J Pappas ( Applicant) K McCann ( Respondent) |
| Solicitors Hugo Law Group ( Applicant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCC 322 of 2022 |
BAKER J:
EDITED EX TEMPORE REASONS
Introduction
The applicant, Mr Jake Sullivan, was tried before a jury from 9 September 2024 to 24 September 2024 for the following offences:
(a)Count 1 (CC2022/8509) – sexual intercourse without consent pursuant to s 54 of the Crimes Act 1900 (ACT);
(b)Count 2 (CC2022/8510) – sexual intercourse without consent pursuant to s 54 of the Crimes Act;
(c)Count 3 (CC2022/8512) – sexual intercourse without consent pursuant to s 54 of the Crimes Act;
(d)Count 4 (CC2022/8513) – sexual intercourse without consent pursuant to s 54 of the Crimes Act;
(e)Count 5 (CC2022/8511) – act of indecency without consent pursuant to s 60 of the Crimes Act; and
(f)Count 6 (CC2022/8508) – assault occasioning actual bodily harm pursuant to s 24 of the Crimes Act.
On 24 September 2024, the jury returned verdicts of guilty on counts 1, 2 and 6, and verdicts of not guilty on counts 3, 4 and 5.
Following the return of the verdicts, the prosecutor made an application for bail to be revoked, which was opposed by the defence. In view of the seriousness of the offences of which the applicant was found guilty, which included sexual and violent offending, and taking into account the provision in s 22(2) of the Bail Act 1992 (ACT), which required me to consider the likelihood of the applicant being given a sentence of imprisonment, I revoked the applicant's bail.
On 25 September 2024, the applicant filed a Notice of Appeal, appealing from the findings of guilt on counts 1, 2 and 6. The grounds of appeal are as follows:
(a)The jury’s verdicts of guilty on counts 1, 2 and 6 cannot be reconciled with the verdicts of not guilty on counts 3, 4 and 5;
(b)The jury’s verdicts of guilty on counts 1, 2 and 6 are unreasonable, unsafe or unsatisfactory having regard to the evidence.
On 26 September 2024, the applicant filed an application for bail pursuant to s 20B of the Bail Act. In the accompanying affidavit of the applicant’s instructing solicitor, the applicant seeks that bail be granted on conditions that would permit him to live with his family in Queensland, but which would impose a curfew, daily reporting conditions and which would prohibit the applicant from contacting the victim of the offending, or any of the witnesses who gave evidence in the trial.
For the reasons outlined below, I have determined that bail should be granted on the conditions proposed by the applicant.
Background
The evidence in the trial
The applicant and the complainant attended the Australian Defence Force Academy (ADFA) together. Shortly after meeting in March 2020, they commenced a casual sexual relationship which lasted approximately three to four months. They reconnected on New Year’s Eve of 2021-2022, and remained in contact from then until the alleged offending.
On 11 March 2022, the applicant and the complainant returned to the complainant’s room at ADFA after a meeting at a night club. They engaged in consensual sexual intercourse. After some time, the complainant gave evidence that the applicant pulled her hair, and she responded with words to the effect of “oh.. ow it hurts” or “ow, that really, really hurts”. The complainant gave evidence the applicant then grabbed her right arm and right breast roughly, causing bruising (Count 6 – assault occasioning actual bodily harm – guilty). The complainant gave evidence she turned away from the applicant to face the wall, and attempted to sleep.
The complainant gave evidence that the applicant then said words to the effect of “you invited me here and couldn’t even make me come” and then inserted his finger into her vagina without her consent (Count 1 – sexual intercourse without consent – guilty). The complainant then alleged the applicant attempted to insert his penis into her vagina from behind, and then moved her on top of him and inserted his penis in her vagina (Count 2 – sexual intercourse without consent – guilty). The complainant gave evidence that she “froze” and “stared blankly” at the applicant.
The sexual intercourse continued, with the complainant and applicant changing positions several times. The complainant gave evidence that at one stage, the applicant inserted a finger inside the complainant’s anus without her consent (Count 3 – sexual intercourse without consent – not guilty). The complainant gave evidence that she said words to the effect of “no no no, I don’t want to do that” and told the applicant “she hadn’t prepared for anal intercourse” to which the applicant responded with words to the effect of “oh, come on” or “it’s fine, I don’t care”.
The complainant gave evidence that she again rolled away and attempted to disengage from the intercourse. The complainant alleged the applicant then said words to the effect of “you invited me over here, you didn’t even make me come” and “oh well, can you at least touch it” before moving her left hand to touch his penis, and masturbating himself with her hand (Count 5 – act of indecency without consent – not guilty). The complainant's evidence was that, at some stage during that act, the applicant moved his hand away but the complainant continued to masturbate the applicant at that point.
The complaint said that the applicant then pulled her on top of him, and gestured that he wished to receive oral sex. The complainant gave evidence that she indicated she did not want to perform oral sex. The complainant alleged the applicant then pulled her by the hips and forced her head onto his penis, holding her head for around 30 seconds while the complainant performed oral sex (Count 4 – sexual intercourse without consent – not guilty).
The complainant gave evidence that she and the applicant then engaged in sexual intercourse for a further fifteen minutes, until the applicant ejaculated. The complainant gave evidence that the applicant then followed her into the shower where they showered for some time. She said that afterwards, she told the applicant he had her hurt and not to return.
The complainant had bruising that was observed by medical personnel and friends and is depicted in photographs. The subject of that bruising was the subject of count 6 which is assault occasioning actual bodily harm of which the applicant was found guilty. The prosecution's contention was that that bruising was sustained during the course of the alleged offending on the evening of 11 March 2022.
The applicant gave evidence in the trial that the complainant consented to sexual intercourse with him. He denied that any anal intercourse occurred (count 3) and maintained that he did not penetrate the complainant’s vagina with his finger (count 2). He also denied having injured the complainant, either by squeezing her breast in an aggressive manner or in any other fashion (count 6). He also denied having ever forced the complainant's head onto his penis (count 4).
The investigation and charges
The complainant met with military police on 16 March 2022 to report the incident. The complainant made a formal complaint to ACT police the following day. She participated in an evidence in chief interview with police on 1 April 2022.
The applicant was arrested on 26 August 2022 when voluntarily he attended City Police Station. He attended the Magistrates Court later that day. The applicant pleaded not guilty to all charges and was released on bail. He remained on bail without incident from that time until bail was revoked on 24 September 2024.
Relevant principles
Section 22 of the Bail Act provides as follows:
22 Criteria for granting bail to adults
(1)In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a)the likelihood of the person appearing in court in relation to the offence; and
(b)the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c)the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
(2)Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.
(3)In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including—
(a)the nature and seriousness of the offence; or
(b)the person’s character, background and community ties; or
(c)the likely effect of a refusal of bail on the person’s family or dependants; or
(d)any previous grants of bail to the person; or
(e)the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.
(4)The reference in subsection (1)(b)(i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).
Consideration
As the applicant has been convicted of offences by a jury, the presumption in favour of bail no longer applies: s 9B of the Bail Act. However, as he has not yet been sentenced for the offences, s 9E of the Bail Act, which provides that the court must not grant bail to the person unless satisfied that special or exceptional circumstances exist, does not apply at this time: see Nchouki v The Queen [2023] ACTCA 8 at [16] – [22].
When I previously revoked the applicant’s bail, I said this:
The offender has been found guilty by the jury of two counts of sexual intercourse without consent and one count of assault occasioning actual bodily harm. He is no longer entitled to the presumption of innocence in respect of those counts. The offences are very serious offences. A jail term is, in my view, inevitable and this is a very serious consideration under subsection 22(2) of the Bail Act.
I also observed:
Mr Pappas has, on behalf of the offender, referred to the differing verdicts and in particular the verdicts of not guilty in respect of counts 3, 4 and 5. In my view, any determination to grant bail based on the potential argument of inconsistency of verdicts is properly considered only under an application for appeal bail after the filing of any application for any notice of appeal.
As I have noted above, a Notice of Appeal has now been filed. That Notice of Appeal raises two grounds of appeal, inconsistency of verdicts and unreasonable verdicts. It is only necessary for me to address the first ground of appeal.
The jury determined that the applicant was guilty of three counts, and not guilty of three counts. The counts for which the applicant was found guilty are the first three alleged offences in time; the counts for which the applicant was found not guilty were each alleged to have occurred after the first three counts. The basis for differentiating those counts is not clear to me. Of course, I do not have the benefit of the considered submissions that will be made to the Court of Appeal. However, for present purposes, it may be concluded that this ground of appeal does appear, at this stage, to have some merit.
In R v Incandela (No 3) [2022] ACTSC 93 at [9], McCallum CJ observed that whilst each application for bail must be considered on its merits, “the fact of a conviction alters the balance of the consideration of the mandatory factors set out in s 22 of the Bail Act”. In particular, her Honour observed that the fact of a conviction increases the risk of flight or failure to appear, particularly where the person is likely to face an immediate term of imprisonment: Incandela (No 3) at [10]. Further, “it removes the need to speculate about the likelihood of conviction” and “removes the risk that an innocent person refused bail might spend a likely time on remand”: Incandela at [11]. It was the latter consideration which carried particular weight in my decision to revoke bail.
The filing of the Notice of Appeal, and my assessment of the prospects of success of that appeal again alters that balance. Whilst the applicant no longer has a presumption of innocence, there is, at this stage, a reasonable prospect that the applicant will be successful in the first ground of his appeal, the consequence of which would be a retrial on counts 1 – 3.
Whilst acknowledging that the applicant was on bail for a lengthy period of time prior to his remand in custody, counsel for the Director submitted that the inevitability of facing an immediate term of imprisonment now renders that risk a material one. However, the applicant’s hope in a successful appeal is such as to render risk of flight low.
I do not understand the Director to submit that there is any risk of reoffending or the commission of further of offences, or of interfering with evidence, intimidating a witness or otherwise obstructing the course of justice in relation to the person.
In those circumstances, I am satisfied that it is appropriate to grant bail on the conditions that have been proposed on behalf of the applicant.
Conclusion
For the reasons outlined above, the applicant is granted bail on the following conditions:
(a)He reside at [redacted];
(b)Be present at place of residence from 10pm each day and remain there until 7am the following morning;
(c)To present at the front door of the residence upon the reasonable direction of a member of the AFP or Queensland Police between the hours of 10pm and 7am;
(d)Report to [redacted] daily between 8:00am-8:00pm;
(e)Not to contact, directly or indirectly, the following persons:
(i)[redacted];
(ii)[redacted];
(iii)[redacted];
(iv)[redacted];
(v)[redacted];
(vi)[redacted];
(vii)[redacted];
(viii)[redacted];
(ix)[redacted];
(x)[redacted];
(xi)[redacted]; or
(xii)[redacted].
(f)Not to assault, harass or intimidate, [redacted], not cause any other person to do;
(g)Not to be within 50 metres of [redacted];
(h)Not to consume alcohol;
(i)Not to enter the Australian Defence Force Academy, 1 Northcott Drive Campbell ACT, unless in the company of Military Police; and
(j)Not to apply for any new passport.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: |
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