McCarthy v The Queen - [2012] ACTCA 18

BRENDAN MCCARTHY v THE QUEEN
[2012] ACTCA 18 (28 March 2012)

CRIMINAL LAW – jurisdiction practice and procedure – bail on appeal – jurisdiction to grant bail incidental to power to stay proceedings – Supreme Court Act1933 (ACT) s 37Q – sentence does not continue to run when appellant on bail.

CRIMINAL LAW – jurisdiction practice and procedure – bail – special or exceptional circumstances – pre-trial delay not sufficient to justify bail – strength of appeal grounds insufficient to justify bail – bail application dismissed.

Supreme Court Act 1933 (ACT), ss 37J(1), 37Q
Magistrates Court Act 1930 (ACT), s 216
Bail Act 1992 (ACT), s 9E

Court Procedures Rules 2006 (ACT), r 4752

Evidence Act 1995 (Cth), ss 101, 137

High Court Rules2004 (Cth), rr 8.07.1–8.07.3

Sherd v The Queen (2011) 5 ACTLR 290
United Mexican States v Cabal (2001) 209 CLR 165
Re Pinkstone’s applications (2003) 77 ALJR 1561
Siminton v Australian Prudential Regulation Authority (2008) 82 ALJR 1478
Tilley v The Queen (2008) 83 ALJR 233
Whan v McConaghy (1984) 153 CLR 631
R v Hall [2004] NSWCCA 127
George v O’Neill (2009) 24 NTLR 228
Re an Application for Bail byMassey [2008] ACTSC 145
Re Clarkson [1986] VR 583
R v Giordano (1982) 31 SASR 241
R v McCarthy (Unreported, Supreme Court of the ACT, Marshall J, 13 February 2012)
Conway v The Queen (2000) 98 FCR 204
WFS v The Queen [2011] VSCA 347
R v Saddler (2008) 20 VR 69
HML v The Queen (2008) 235 CLR 334

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ACTCA No. 6 of 2012
SCC No. 335 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 28 March 2012

IN THE SUPREME COURT OF THE     )
  )          ACTCA No. 6 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          SCC No. 335 of 2008

R
v

BRENDAN MCCARTHY

ORDER

Judge:  Refshauge J
Date:  28 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

The application for bail is dismissed.

By indictment dated 3 October 2008, Brendan Michael McCarthy, the appellant, was charged with one count of engaging in sexual intercourse with his then former partner without her consent and knowing that she had not consented or being reckless as to whether she had consented. The offence was alleged to have occurred between 1 May 2006 and 16 June 2006.

Mr McCarthy pleaded not guilty to that charge and was tried by a judge and jury, commencing on 14 November 2011. On 21 November 2011, the jury returned a verdict of guilty. On 6 March 2012, Mr McCarthy was sentenced to three years imprisonment with a non parole period of 18 months. Mr McCarthy has commenced an appeal against his conviction. The Notice of Appeal was filed on 8 March 2012. Mr McCarthy now applies for bail pending his appeal.

Bail pending an appeal to the Court of Appeal from a trial on indictment is available as…

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 McCarthy v The Queen

Details

AGLC: McCarthy v The Queen [2012] ACTCA 18
Case: [2012] ACTCA 18
Decision Date: March 28, 2012

CaseChat Overview and Summary

McCarthy applied to the Supreme Court of the Australian Capital Territory for bail pending an appeal against his conviction for a number of offences. The Crown opposed the application.

The primary legal issue before Refshauge J was whether McCarthy had established a strong ground of appeal against his conviction, which is a prerequisite for granting bail pending appeal under section 22(2) of the *Bail Act 1992* (ACT).

Refshauge J considered the grounds of appeal raised by McCarthy, which related to alleged errors in the trial judge's directions to the jury. After reviewing the evidence and the trial judge's summing up, His Honour concluded that the grounds of appeal were not strong. His Honour found that the directions given by the trial judge were adequate and that there was no substantial risk that the conviction would be overturned on appeal.

Consequently, the application for bail was dismissed.

Orders

Orders of the court

The application for bail is dismissed.

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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