Ed v The Queen - [2018] ACTCA 65

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	ED v The Queen
Citation:	[2018] ACTCA 65
Hearing Date:	11 December 2018
DecisionDate:	11 December 2018
Before:	Elkaim J
Decision:	See [17]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a stay of sentence – application for Bail
Legislation Cited:	Bail Act 1992 (ACT) s 9E
Cases Cited:	Samani v The Queen [2016] ACTCA 48 Sharma v The Queen [2016] ACTCA 60
Parties:	ED (Applicant) The Queen (Respondent)
Representation:	Counsel Mr D Hoitink (Applicant) Mr P Dixon (Respondent)
Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 38 of 2018
Decision under appeal:	Court: ACT Supreme Court Before: Burns J Date of Decision: 6 July 2018 Case Title: R v ED Court File Number: SCC 314 of 2017

ELKAIM J:

This is an application, filed on 5 December 2018, for bail and the stay of a series of sentences imposed by Burns J.

On 6 July 2018, a jury returned guilty verdicts in relation to four of seven counts.

On 30 November 2018, Burns J sentenced the appellant.

The sentences were as follows:

(a) Count 1: sexual intercourse with a person under 16: 12 months’ imprisonment from 30 November 2018 but suspended on 29 May 2019 with an attached good behaviour order for 12 months.

(b) Count 4: attempt sexual intercourse with a person under 16: 16 months’ imprisonment to commence on 30 January 2019 but suspended on 29 May 2019 with a good behaviour order for 12 months.

(c) Count 6: act of indecency with a person under 16: one month imprisonment to commence on 30 November 2018.

(d) Count 7: act of indecency with a person under 16: three months’ imprisonment to commence on 30 November 2018.

The effect of the above is that, subject to agreeing to the good behaviour orders, the applicant will be released on 29 May 2019.

The applicant has lodged an appeal against his convictions. The appeal has been listed before the Registrar on 6 February 2019 when a hearing date in the appeal sittings commencing on 6 May 2019 will be allocated.

The application for bail is made pursuant to s 9E of the Bail Act 1992 (ACT). A grant of bail under this section requires exceptional circumstances.

The exceptional circumstances here are said by the applicant to be the proximity of the hearing of his appeal to his release date. He would have served all, or close to all, of his full-time imprisonment sentence by the hearing of the appeal. If the decision is reserved he will probably have completed the whole of the full-time imprisonment sentence.

There is no doubt that the circumstances put forward here can be regarded as an exceptional circumstance (Samani v The Queen [2016] ACTCA 48). In addition in Sharma v The Queen [2016] ACTCA 60 the Chief Justice said that it was the full-time imprisonment section of an overall sentence that was relevant…

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 Ed v The Queen

Details

AGLC: Ed v The Queen [2018] ACTCA 65
Case: [2018] ACTCA 65
Decision Date: 11 December 2018

CaseChat Overview and Summary

Ed (the applicant) sought a stay of a sentence imposed by the District Court of New South Wales, and also applied for bail pending the determination of his appeal against that sentence. The application for a stay of sentence was made pursuant to s 12(1) of the Criminal Appeal Act 1912 (NSW).

The primary legal issue before Elkaim J was whether the applicant had established sufficient grounds to warrant a stay of his sentence and the grant of bail pending his appeal. This required the court to consider the strength of the grounds of appeal and the potential for irreparable harm if the sentence were to be served before the appeal was heard.

Elkaim J applied the principles governing applications for a stay of sentence and bail pending appeal. His Honour noted that such applications are exceptional and require a strong prima facie case on appeal, or the existence of special circumstances. The court considered the applicant's prospects of success on appeal, the potential prejudice to the applicant if the appeal were successful but the sentence had already been served, and the overall justice of the case.

The application for a stay of sentence and bail was dismissed.

Orders

Orders of the court

See [17]

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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