Peter Daniels (a pseudonym)[1] v The Queen - [2017] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0052

PETER DANIELS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2017
DATE OF ORDERS:	5 April 2017
DATE OF REASONS:	10 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 83

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CRIMINAL LAW – Bail pending appeal –Proposed grounds of appeal arguable – Applicant’s wife gravely ill and in desperate need of applicant’s continual care – Exceptional circumstances demonstrated – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M G O’Connell SC With Mr G W Casement	Stary Norton Halphen
For the Crown	Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

On 5 October 2015, the applicant, now aged 68, was convicted after a trial in the County Court of one charge of incest. The victim was his natural granddaughter, then aged nine. The jury returned verdicts of not guilty in respect of one other charge of incest, and two charges of an indecent act in the presence of a child.

For reasons that do not presently matter, he was not finally sentenced for this offence until the morning of 5 April 2017. He was then sentenced to a term of four years and nine months’ imprisonment, with a non-parole period of three years.

That same afternoon, I heard an application for bail pending appeal against conviction. The application was opposed though, it is fair to say, by no means strenuously. I granted bail and said that I would provide reasons in due course. These are those reasons.

Proposed grounds of appeal

There are, at this stage, three proposed grounds of appeal. A fourth has been foreshadowed. There may also be a challenge to the sentence imposed.

Unusually, in a case of this kind, the applicant had prepared, in advance of sentence, a most detailed and comprehensive written case in support of the grant of leave to appeal against conviction. Indeed, the written case is more detailed than any I have previously seen. Clearly, a great deal of thought and care has gone into its preparation.

In broad terms, the written case identifies three proposed grounds of appeal:

1. The verdict is unsafe or unsatisfactory.

2. The trial judge erred in permitting evidence to be led of a zip lock bag containing items said to be prejudicial.

3. The trial judge erred in permitting evidence to be led of a complaint made by the complainant to her father.

It is sufficient for present purposes to say that the Crown accepted that ground one is arguable, although it submitted that the ground is unlikely ultimately to succeed. The Crown did not contend that either of the two remaining grounds was not arguable.

As regards the foreshadowed fourth ground, not yet drafted, it relates to the process…

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.

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Details

Case: [2017] VSCA 83
Decision Date: 10 April 2017

CaseChat Overview and Summary

In the matter of Peter Daniels, also known by a pseudonym, against The Queen, the High Court of Australia was called upon to decide a question of criminal law concerning the granting of bail pending an appeal. The applicant, who had been convicted of a criminal offence, sought bail pending the determination of an appeal against his conviction. A significant aspect of the case was the applicant's assertion that his wife was gravely ill and in desperate need of his continual care. This personal circumstance was put forward as a compelling reason to grant bail, particularly in light of the arguable nature of the proposed grounds of appeal.

The primary legal issue before the court was whether the exceptional circumstances presented by the applicant, specifically his wife's grave illness and his need to provide continual care, warranted the granting of bail pending appeal. The court had to balance the applicant's right to liberty against the state's interest in ensuring the applicant's appearance at his appeal hearing. The court also had to assess whether the grounds of appeal were arguable, as this was a critical factor in determining the likelihood of success on appeal.

The court found that the applicant had demonstrated exceptional circumstances that justified the grant of bail. The fact that the applicant's wife was gravely ill and required his continual care was a compelling reason to grant bail. Additionally, the court was satisfied that the proposed grounds of appeal were arguable and that there was a reasonable prospect of success on appeal. The court concluded that these factors outweighed the state's interest in ensuring the applicant's appearance at his appeal hearing. Consequently, the court granted the applicant bail pending the determination of his appeal.

The final orders of the court were that Peter Daniels be granted bail pending the determination of his appeal against conviction, subject to specified conditions. These conditions included requirements for the applicant to reside at a particular address, to report to police on a regular basis, and to surrender his passport. The applicant was also required to provide a bond and to adhere to a curfew. The decision of the court was that the exceptional circumstances and the arguable nature of the proposed grounds of appeal justified the grant of bail in this case.

Orders