Kovacs, Application for bail - [2008] QCA 131

[2008] QCA 131

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MUIR JA
MACKENZIE AJA
JONES J

Application No 334 of 2008

APPLICATION FOR BAIL BY MELITA KOVACS

TOWNSVILLE

DATE 29/05/2008

ORDER

MUIR JA: The applicant was convicted on 5 December 2007 after a trial in the Supreme Court of one count of arranging a marriage to obtain permanent residence, one count of possessing a slave and one count of using a slave. She was sentenced to terms of imprisonment for these offences of 12 months, four years and four years respectively. A non-parole period of 18 months was set in respect of the four year terms.

The applicant has appealed against conviction and sentence. Her appeal and that of her husband and co-accused, Zoltan Kovacs, was to be heard in these sittings of the Court of Appeal at Townsville. The hearing was adjourned because of the view taken by the parties that arguments concerning the construction of section 270 of the Criminal Code Act 1995 (Cth), of significance for the determination of the appeal, had been considered by the High Court of Australia recently in an appeal from the Victorian Court of Appeal decision of the R v Wei Tang [2007] 16 VR 454. The High Court which heard argument over two days has not yet given its decision in that matter.

However, Chief Justice Gleeson was a member of the Court and as he retires at the end of August 2008, a decision is likely to be handed down within the next few months.

The principles applicable to the grant of bail pending appeal against a conviction for a criminal offence are well established. After conviction bail should be granted only in exceptional circumstances. Authority for that proposition may be found in numerous cases including Ex-parte: Maher [1986] 1 Qd R 303 at 308 and also Chamberlain v The Queen (1983) 153 CLR 514 at 519. The principle underlying this approach is that to suspend or defer a sentence before the hearing of an appeal "is to invest the verdict of the jury with a provisional quality and that to grant bail in such a case is to whittle away the finality of the jury's findings and to treat the verdict merely as a step in the process of appeal."

The applicant, who was born in the Philippines, is 50 years of age. She married Mr Kovacs in 1996 and moved to Australia in 1997. She is an Australian citizen and has five children, the youngest of whom are aged seven, eight and 10 years respectively. The applicant and her husband operated a takeaway food store at Napranum, an Aboriginal community near Weipa.

In order to dispose of this application it is unnecessary, I think, to go any further into the facts surrounding the subject offences. Of more immediate interest is the provisions of the Code in relation to slavery. Section 270.1 of the Code provides, "Slavery is the condition of a person over whom any or all of…

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 Kovacs, Application for bail

Details

AGLC: Kovacs, Application for bail [2008] QCA 131
Case: [2008] QCA 131
Decision Date: 29 May 2008

CaseChat Overview and Summary

In the case of Melita Kovacs, the applicant applied for bail pending an appeal against her conviction and sentence. The applicant was convicted on December 5, 2007, in the Supreme Court of Queensland, of arranging a marriage to obtain permanent residence, possessing a slave, and using a slave. She was sentenced to 12 months, four years, and four years, respectively, with a non-parole period of 18 months set for the four-year terms. The applicant's appeal, along with her husband's, was to be heard in the Court of Appeal at Townsville. However, the hearing was adjourned due to the High Court's recent consideration of a similar case, R v Wei Tang, which could impact the interpretation of the relevant provisions of the Criminal Code Act 1995 (Cth).

The primary legal issue before the court was whether the applicant's appeal fell within the 'exceptional circumstances' criteria for granting bail pending appeal. The court considered the well-established principles governing the grant of bail, which state that bail should only be granted in exceptional circumstances after conviction, as it undermines the finality of the jury's findings. The applicant's age, citizenship status, and family ties in Australia were additional factors the court considered. The court also noted the unclear meaning of the slavery provisions in the Code, which was the subject of debate in the High Court case of Wei Tang. The court concluded that the applicant's substantial prospects of success on appeal, combined with the uncertain legal interpretation of the slavery provisions, led to the conclusion that the applicant had made out a case of exceptional circumstances.

The court granted the applicant bail pending her appeal, acknowledging that the outcome in this case was distinct from a case where a well-settled principle had been reconsidered by an intermediate Court of Appeal. The court distinguished this case from others where exceptional circumstances were not shown due to the unique nature of the slavery provisions and the pending decision in the High Court case of Wei Tang. The court believed that the applicant's release on bail would not compromise the integrity of the legal process and would allow her to adequately prepare for her appeal.

Orders