Fesus v The Queen - [2013] NSWCCA 331

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fesus v R [2013] NSWCCA 331
Hearing dates: 10 December 2013
Decision date: 20 December 2013
Before: Ward JA at [1]
Harrison J at [1]
Bellew J at [1]
Decision:
1. The application for review of the bail determination of R A Hulme J is dismissed.
2. Until further order of the Court, there is to be no publication of this judgment, other than to:
(a) the applicant;
(b) the applicant's solicitor and any counsel retained to advise or appear for the applicant;
(c) the Crown Prosecutor;
(d) the Crown Prosecutor's instructing solicitor.

Catchwords: CRIMINAL LAW - Bail - Where applicant charged with murder and refused bail - Where application made for review of bail determination - Whether exceptional circumstances justified grant of bail - Where Crown relied upon circumstantial case along with confessions made by applicant to an undercover operative - Where Crown case not properly described as weak - Exceptional circumstances not made out
Legislation Cited: Bail Act 1978 (NSW)
Court Suppression and Non-publication
Orders Act 2010 NSW
Criminal Procedure Act 1986
Cases Cited: R v Brown [2013] NSWCCA 178
Category: Principal judgment
Parties: Steven Fesus - Applicant
Regina - Respondent
Representation: Counsel:
D Miralis (solicitor) - Applicant
S Dowling SC - Respondent
A Bhalla - Commissioner of Police
Solicitors:
Nyman Gibson Stewart - Applicant
Director of Public Prosecutions - Respondent
Crown Solicitor for NSW - Commissioner of Police

File Number(s): 2013 / 207336002
Publication restriction: See paragraphs [3] and [4].
Decision under appeal

Date of Decision:

2013-10-04 00:00:00

Before:

R A Hulme J

THE COURT

On 9 July 2013 the applicant was charged with the murder, on 11 August 1997, of his wife Jodie Melissa Fesus ("the deceased").

On 4 October 2013 R A Hulme J refused an application for bail. Pursuant to s. 45 of the Bail Act 1978 ("the Act") the applicant now seeks a review of that decision.

It should be noted that when determining the matter at first instance his Honour made orders, on the application of the Commissioner of Police, that until further order:

(i) there be no publication of the details of the police operation that resulted in the applicant's confession; and

(ii) there be no publication of submissions made in relation to the Commissioner's application.

When the present application came before the Court for hearing, Counsel for the Commissioner of Police appeared and sought that those orders be continued. No objection was taken by either party to that course and orders were made accordingly.

THE NATURE OF THE APPLICATION

Section 45(1)(b) of the Act confers a power on this Court to review any decision of the Supreme Court, however constituted, in relation to bail. By virtue of s. 48(3) a review is by way of re-hearing, such that evidence or information in addition to, or in substitution for, evidence or information given or obtained on the making of the original decision may be given or obtained on the…

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 Fesus v The Queen

Details

AGLC: Content removed [2013] NSWCCA 331
Case: [2013] NSWCCA 331
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case of Fesus v The Queen involved a defendant who had been charged with murder and had previously been refused bail. The applicant subsequently applied for a review of the bail determination, seeking to have the bail granted on the basis of exceptional circumstances. The case was heard in the relevant court, which needed to decide on the sufficiency of the evidence against the applicant and whether the exceptional circumstances were present to justify the granting of bail.

The legal issues before the court were primarily focused on the weight of the evidence presented by the Crown and the existence of exceptional circumstances that could warrant the release of the applicant on bail. The Crown's case against the applicant was built upon circumstantial evidence and confessions made by the applicant to an undercover operative. The applicant argued that exceptional circumstances existed that warranted bail, while the Crown contended that the case against the applicant was not weak and that there were no exceptional circumstances justifying bail.

The court examined the evidence and determined that the Crown's case was not properly described as weak, as it relied on significant circumstantial evidence and admissions by the applicant. The court also found that the exceptional circumstances necessary to warrant bail had not been established. The court emphasised that exceptional circumstances must be truly exceptional, and in this case, they were not present. As a result, the application for review of the bail determination was dismissed, and the previous decision to refuse bail remained in place.

The final orders of the court were that the application for review of the bail determination was dismissed, and the applicant would continue to be held without bail. The court's decision highlighted the importance of the strength of the Crown's case and the high threshold for establishing exceptional circumstances in bail applications, particularly in serious criminal matters such as murder.

Orders