Nona v The Queen (No 2)
[2012] ACTCA 59
•19 December 2012
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 offences save to say that they are what are usually called “historical sex offences” as they were alleged to have been committed in 1996.
On 15 August 2012, Mr Nona filed a Notice of Appeal against the convictions entered in those proceedings.
Before the trial which resulted in the convictions, Mr Nona had sought a permanent stay of the prosecution proceedings on the grounds that there was an inexcusable delay in bringing the proceedings to trial and which was prejudicial to Mr Nona. That application was dismissed: R v Nona (2012) 6 ACTLR 203.
After the trial, Mr Nona sought leave to appeal from that interlocutory decision. On 5 September 2012, I granted Mr Nona leave to amend his Notice of Appeal against the convictions to add, as a ground of appeal, a challenge to the decision to refuse a stay of proceedings on the basis that it was an interlocutory decision in the proceedings leading to the convictions and which, therefore, could be considered in the appeal against the convictions under the principles set out in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. See Nona v The Queen [2012] ACTCA 55 at [48]–[50].
Mr Nona amended the Notice of Appeal in accordance with the leave that I had granted. I later considered that there may be grounds for granting leave to appeal, notwithstanding the leave I had granted to amend the Notice of Appeal, on the basis that the failure of Mr Nona to seek leave to appeal against the decision not to grant a stay at an earlier stage and before the trial may have precluded him from raising it in the appeal, a proposition based on the decision of Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. I have not yet heard final submissions on that issue.
Subsequently, Mr Nona sought a stay of the sentencing proceedings. That application has also not yet been decided.
In the meantime, on 24 October 2012, Mr Nona sought bail pending the hearing of his appeal. It is this application with which this decision is concerned.
Mr Nona is also facing a trial of other charges. These are of a similar nature to the charges of which he has been convicted, but in respect of a different complainant. In those proceedings, delay is not the same issue as the disclosures leading to prosecution were made much more recently and do not lend themselves to the same challenge.
THE APPLICATION
The grounds of the bail application were set out in an affidavit of Mr Nona’s solicitor, Ms C Lim, sworn on 24 October 2012.
Ms Lim deposed to the facts as broadly set out above, so far as they are relevant. She deposed that Mr Nona had made an application for bail to the trial judge when the jury returned the verdicts of guilty but that had been refused. She further deposed that, since then, Mr Nona’s circumstances had changed.
The application for bail on 10 August 2012
At the original application for bail, it was submitted that Mr Nona was living with his partner and had six children between the ages of two and eight years and “his personal life is in a mess financially in that there are a lot of things to be sorted out”. It was submitted that he was a resident of Cairns and there was no danger of him absconding. The trial judge noted that he had been for 12 years in Queensland, to the knowledge of the authorities, when he knew of the investigation into the offences. His Honour also noted that he had no criminal record. It was also submitted that an art dealer was meeting his travel and accommodation costs so that he would have the means to return to Canberra if he, on the granting of bail, returned to Cairns.
The trial judge refused bail, not on the ground of the likelihood of Mr Nona absconding but because he had been found guilty of very serious charges which would inevitably result in a sentence of imprisonment.
The change in circumstances
The change in circumstances on which the present application was based appeared to be that a Notice of Appeal had been filed. It was submitted that there were strong prospects of success on that appeal.
The present circumstances of Mr Nona’s art practice
Although not a change in circumstances, much was also made of the work that
Mr Nona would do if granted bail. That comes about in this way.
Mr Nona is an internationally known Torres Strait Islander artist. He is said, according to Ms Lim in her affidavit, to have available to him two current commissions. The first appears to be in conjunction with an overseas government to produce major sculptures by Mr Nona in a museum of that country. One project is estimated to cost between AUD$1.5–2 million. The further commission has been proposed for a sculpture to be produced by Mr Nona in another museum overseas in another country.
While Mr Nona is in custody, of course, he cannot proceed with these projects. The projects were said to be likely to “create enormous interest and recognition for Australian indigenous art” and, in the former case, of a financial and physical scale larger than any other indigenous visual art project.
Mr M H Kershaw, director of the company which represents Mr Nona, also gave oral evidence. He confirmed the details of the two projects referred to above (at [16]). He indicated, however, that neither project had been confirmed at the time, in part because while Mr Nona was in custody he could not complete the works. His legal position was also relevant as that may provide a reason for the project commissioners declining to proceed. He also frankly admitted that there was no “cast iron guarantee” that the projects would proceed even were Mr Nona to be at liberty.
Mr Kershaw explained the arrangements made on Mr Nona’s behalf in relation to child support. He stated that, at one stage, he was remitting amounts payable by
Mr Nona to the relevant agency each month. That changed, however, after other parties arranged to look after Mr Nona’s financial affairs.
He noted that Mr Nona could derive income from artwork already created. There were limited edition prints and sculptures already in existence. Prints, however, that were produced hereafter, even where they could be printed, could not be sold without Mr Nona’s original signature on each of them.
Mr Kershaw confirmed that he had an exclusive arrangement to represent Mr Nona. Sales, however, could occur through the internet and through other galleries. On a subsequent resale, there was also a royalty payable to Mr Nona.
His arrangements relating to child support for Mr Nona were subject to some cross-examination but I do not need to address that in detail.
As to the two major projects, Mr Kershaw confirmed in cross-examination that they had not yet been committed and that this was not necessarily because of Mr Nona’s legal problems. He said that the larger project would take about three months to fabricate and then would have to be transported to Europe by sea and installed. The other project was a little smaller and would take about two months to fabricate. Fabrication could not start without Mr Nona’s presence. It would also be expected that Mr Nona would be present at the installation of the project.
Mr Kershaw stated that he had travelled widely with Mr Nona, both internationally and domestically, and had seen much of him in Cairns. At no time had he seen him intoxicated. He did know that, at times, Mr Nona may have consumed alcohol to excess but this was certainly not his regular habit. It certainly had not, he said, affected Mr Nona’s work in the past.
He indicated that he had assisted Mr Nona with his expenses, including transport and accommodation incurred in respect of these proceedings. He pointed out, however, that this was on a commercial basis and that such expenditure would not exceed the income derived by his company from the sales of Mr Nona’s work. This limited the capacity of his company to provide assistance. He did not say, however, that such assistance was no longer available on these terms.
THE LAW
Section 9B of the Bail Act 1992 (ACT) provides that where a person is convicted of an indictable offence but not yet sentenced, the presumption for bail set out in div 2.2 of that Act does not apply.
Though Mr Nona cannot, therefore, call in aid the presumption in favour of bail, it appears that the Crown may, nevertheless bear the onus of satisfying the Court that bail should not be granted. See 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).
The Court must assess, then, whether Mr Nona should be granted bail by reference to the criteria set out in s 22(1) of the Bail Act. These may conveniently be summarised as:
(a)the likelihood of appearing in accordance with his bail undertaking;
(b)the likelihood of committing further offences or of interfering with other persons or witnesses; and
(c) his interests.
In addition, however, s 22(2) requires the Court to have regard to the likelihood of the bail applicant being given a sentence of imprisonment where he or she has been convicted of an indictable offence.
Section 22(3) sets out a non-exhaustive list of matters to which the Court may have regard in considering these matters.
Under s 21 of the Bail Act, I need to deal with Mr Nona’s bail on both the charges of which he has been convicted and those in respect of which he is awaiting trial. I note that the trial is listed to commence on 1 July 2013.
THE APPLICANT’S SUBMISSIONS
Mr Nona submitted that the appeal against the refusal to stay the proceedings was highly likely to succeed and that, as a result, bail should be granted.
Mr S Gill, who appeared for Mr Nona on the bail application, submitted that were the stay of sentencing to be granted and the appeal to be upheld, Mr Nona would not be required to serve any period of imprisonment. Hence, it would be appropriate to grant bail, especially as this would nullify the effect of s 22(2) of the Bail Act.
He submitted there was an absence of current risk to the community, referring to an
e-mail from the mother of four of his children who had stated that he “can attend upon our shared children ... on the condition that he must be supervised by myself”. He also noted that the offences were all historic cases and that there were no current allegations or charges — the pending charges also relate to the mid 1990’s.
He also submitted that the delay in prosecution would reduce the sentence, having regard to events since the offending, and that this was relevant to risk of flight. Mr Nona had, knowing of the investigation over many years into the allegations, never tried to hide or avoid being accessible.
Mr Gill, though accepting that I was not bound by any of the findings of the trial judge on bail, noted that his Honour the trial judge had considered that there was no risk that Mr Nona would not appear for sentence. This would be reinforced by the proposed conditions of bail which were to include reporting to police five days a week and surrender of his passport. Mr Gill noted that, in the past, Mr Nona had always attended Court when required.
Ms M Jones, who appeared for the respondent, submitted that the refusal of bail by the trial judge was a proper application of s 22(2) of the Bail Act. She submitted that the application to stay the sentencing proceedings was an attempt to fragment the proceedings, an approach that was generally eschewed by the courts: R v WR [2009] ACTSC 93. If a stay of sentencing was to be imposed, it should be by the Court of Appeal having heard the appeal.
She further submitted that, in this regard, Mr Nona was in no different position to anyone else who appeals against a conviction. There was nothing to take it out of the ordinary course of proceedings.
She submitted that the evidence of Mr Kershaw was that there was still some income available to Mr Nona from works able to be sold, though there was some limitations on this. She submitted that the overseas commissions were, at this stage, too uncertain to provide a reason for granting bail before the appeal could be heard. In any event, the length of time those commissions would take to be completed would not fit in with these proceedings.
The fact was, she submitted, that unless the appeal was successful, Mr Nona would inevitably be sentenced to a lengthy term of imprisonment. There was, she submitted, an interest in the community in seeing this matter come to some result in a timely fashion and these matters outweighed the factor that might support a grant of bail.
I adjourned the proceedings also as there was a request by Mr Gill to rely on the ground of the likely success of the appeal and Ms Jones had clearly not been ready for that argument.
At issue here is whether Burns J, in rejecting the stay of proceedings, had failed to apply appropriate criteria for assessment of the implications of s 22(1)(c) of the Human Rights Act 2004 (ACT). The primary question is whether the Court should have applied the approach taken by the Supreme Court of Canada in Kalanj v The Queen [1989] 1 SCR 1594, which held that the meaning of “charged with an offence” under the Canadian equivalent to s 22(2)(c) of the Human Rights Act2004 (ACT) should be interpreted as meaning the date of arrest or when an information was sworn, whether or not the offender knew of that or had been served with it.
This was not the construction relied on by Burns J, who preferred the decision of the House of Lords in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72, where the Court referred (at 91; [27]) to “the relevant period [beginning] at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him [sic]”.
His Honour had found that the relevant date was 25 March 2009, when the summonses for the relevant offences were served on Mr Nona.
Ms Jones noted that Kalanj v The Queen had been referred to in Attorney-General’s Reference (No 2 of 2001) and so it could hardly be said that the earlier decision had been overlooked. She also submitted that the approach adopted by Burns J was consistent with that taken by Higgins CJ in R v Mills (2011) 210 A Crim R 434.
Mr Gill submitted that it was clear on the facts that an information had been sworn on 30 July 1998 and that on the approach of the Supreme Court of Canada that was the beginning of the relevant period for assessing delay. He submitted that when
s 22(1)(c) of the Human Rights Act refers to “charged person” that is the class of persons to whom the right accrues, not the time or circumstances — namely, charging — when the relevant period for the purposes of calculating delay commences.
CONSIDERATION
There is no doubt that there is a live issue as to the approach to be taken by the courts in this jurisdiction to the assessment of delay for the purposes of s 22(1)(c) of the Human Rights Act.
There are sound grounds for adopting the approach of the House of Lords and this seems to be consistent with European jurisprudence. The approach of the Canadian Supreme Court, however, cannot be dismissed. Both Courts are eminent sources of interpretation of human rights jurisprudence and it is not easily possible to say whether, when they differ, one should be preferred over another.
At this stage, it is not possible to say other than that Mr Nona has an arguable case on his appeal. It may succeed, but I cannot say that it is more likely to succeed than not.
It is also to be noted that the appeal has been listed for hearing in the February sittings, on 15 February 2013. Though, of course, the timing is somewhat different, I note that the length of time before an appropriate hearing can be relevant to the determination of bail as Fox J said in Burton v The Queen (1974) 3 ACTR 77 at 79.
While there are a number of personal factors of Mr Nona that favour the grant of bail, I am not satisfied that the overseas commissions are in such a state of certainty that they would favour a grant of bail.
Ordinarily, when a person has been convicted of an indictable offence for which a sentence of imprisonment is at least almost inevitable, it seems to me that s 22(2) of the Bail Act makes it tolerably clear that bail should be refused. There are, of course, circumstances where that may not be either necessary or appropriate, but there would have to be some circumstances that justified taking the case out of the ordinary case to which such an approach applies.
The learned trial judge did not think that there were any such circumstances. His Honour’s decision has not really been challenged. The main approach has been to rely on a change of circumstances. I do not consider that the prospect of the commissions, even as advanced as they may be seen to be are, on the frank and credible evidence of Mr Kershaw, a changed circumstance that would justify the grant of bail.
The only other circumstance is the fact that the appeal has been commenced. As I have noted above (at [49]), that is not a matter which shows such prospects of success that it should result in the grant of bail. See Sherd v The Queen (2011) 5 ACTLR 290 at 300–1; [52]–[60].
The respondent has satisfied me that there are no grounds justifying the grant of bail and, accordingly, the application is dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 February 2013
Counsel for the Crown: Ms M Jones
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr S Gill
Solicitor for the accused: Porters Lawyers
Date of hearing: 26, 30 October 2012
Date of judgment: 19 December 2012
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