Nona v The Queen (No 2) - [2012] ACTCA 59

HUMAN RIGHTS ACT

DENNIS MICHAEL NONA v THE QUEEN [No 2]
[2012] ACTCA 59 (19 December 2012)

CRIMINAL LAW – application for bail – applicant awaiting sentence – child sex offences – appeal commenced against conviction – where only change in circumstances commencement of appeal – where appeal does not show prospects of success justifying bail – where no challenge to trial judge’s application of Bail Act 1992 (ACT) s 22(2) – no justification for granting bail – application refused.

Bail Act 1992 (ACT), ss 9B, 21, 22, div 2.2
Human Rights Act 2004 (ACT), s 22(1)(c)

Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72
Burton v The Queen (1974) 3 ACTR 77
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Kalanj v The Queen [1989] 1 SCR 1594
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Nona v The Queen [2012] ACTCA 55
R v Kissner (Unreported, Supreme Court of NSW, Hunt CJ at CL, 17 January 1992) Re Martin (Unreported, Supreme Court of the Northern Territory, Kearney J, 23 October 1997)
R v Mills (2011) 210 A Crim R 434
R v Nona (2012) 6 ACTLR 203
R v WR [2009] ACTSC 93

Sherd v The Queen (2011) 5 ACTLR 290

EX TEMPORE JUDGMENT

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

No. ACTCA 33 – 2012
No. ACTCA 40 – 2012
No. SC 447 of 2009
No. SC 378 of 2010

Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 19 December 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 33 – 2012
)          No. ACTCA 40 – 2012
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 447 of 2009
  )          No. SC 378 of 2010

COURT OF APPEAL )

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

BETWEENDENNIS MICHAEL NONA
Applicant

ANDTHE QUEEN
Respondent

ORDER

Judge:  Refshauge J
Date:  19 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The application for bail is refused.

IN THE SUPREME COURT OF THE       )          No. ACTCA 33 – 2012
)          No. ACTCA 40 – 2012
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 447 of 2009
  )          No. SC 378 of 2010

COURT OF APPEAL )

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

BETWEENDENNIS MICHAEL NONA
Applicant

ANDTHE QUEEN
Respondent

Judges:  Refshauge J
Date:  19 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

On 10 August 2012, a jury in the Supreme Court of this Territory found the applicant, Dennis Michael Nona, guilty of two counts of sexual intercourse with a young person under the age of 16 years and two counts of committing an act of indecency in the presence of each of two young persons under the age of 16 years. The proceedings were adjourned for sentencing in 2013.

It is not necessary for these reasons to set out any of the factual circumstances behind these…

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 Nona v The Queen (No 2)

Details

AGLC: Nona v The Queen (No 2) [2012] ACTCA 59
Case: [2012] ACTCA 59
Decision Date: 19 December 2012

CaseChat Overview and Summary

The applicant, Nona, sought bail pending sentencing after being convicted of child sex offences. The application was heard by Refshauge J in the Supreme Court of the Australian Capital Territory. The sole change in circumstances since conviction was the commencement of an appeal against that conviction.

The central legal issue before the court was whether the commencement of the appeal constituted a sufficient change in circumstances to justify granting bail, particularly in light of the nature of the offences and the absence of any challenge to the trial judge's application of section 22(2) of the *Bail Act 1992* (ACT).

Refshauge J reasoned that the mere fact of an appeal being lodged does not automatically demonstrate prospects of success that would justify granting bail. His Honour found that the appeal did not present any new circumstances or arguments that undermined the original conviction to a degree that would warrant releasing the applicant. Consequently, there was no justification for departing from the usual course of remanding the applicant in custody pending sentencing.

The application for bail was refused.

Orders

Orders of the court

1. The application for bail is refused.

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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