PW v The Queen

Case [2019] NTCCA 15


CITATION:PW v The Queen [2019] NTCCA 15

PARTIES:PW

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory Jurisdiction

FILE NO:CA 2 of 2019 (21743702)

DELIVERED:  20 June 2019

HEARING DATE:  18 June 2019

JUDGMENT OF:  Graham AJ

CATCHWORDS:

CRIMINAL LAW – Appeal – Appeal Bail – Bail Act 1982 (NT) s 23A – whether special or exceptional circumstances exist – prospects of success of appeal – whether applicant serve majority or whole of sentence before appeal – “presumption of guilt” – requirements not satisfied – bail refused

Bail Act 1982 (NT) s 23A.

McRoberts v The Queen [2018] NTCCA 11; Marotta v R [1999] HCA 4

REPRESENTATION:

Counsel:

Applicant:I Read SC

Respondent:  M Nathan SC 

Solicitors:

Applicant:Northern Territory Legal Aid Commission  

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Grah1904

Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

PW v The Queen [2019] NTCCA 15

No. CA 2 of 2019 (21743702)

BETWEEN:

PW

AND:

THE QUEEN

CORAM:    GRAHAM AJ

REASONS FOR JUDGMENT

(Delivered 20 June 2019)

  1. On 19 September 2018, the applicant was found guilty of one count of maintaining a sexual relationship with a minor in aggravating circumstances and another count of aggravated assault of that same minor. On 22 November 2018, the applicant was sentenced to 16 years imprisonment with a non-parole period of 11 years and three months.

  2. The applicant has been in custody since the verdict.

  3. The minor was his nine year old niece.

  4. On 12 April 2019, he was granted leave to appeal against his conviction and that appeal is listed for hearing by the Court of Criminal Appeal on 27 August 2019.

  5. On 18 June 2019, an application was made for bail pending the outcome of the appeal which was supported by an affidavit sworn by the applicant’s solicitor Mr Read SC. Upon the hearing of the application both Mr Read and counsel for the Crown, Mr Nathan SC, made oral submissions.

  6. The application for bail is limited by s 23A of the Bail Act 1982 (NT). Bail must not be granted unless it is established that special or exceptional circumstances exist justifying the grant of bail.

  7. Counsel for the applicant argued that there were special or exceptional circumstances in this case. He conceded that there was no longer a presumption of innocence that existed, but the grounds that he put forward were argued not in the alternative, but rather in the totality.

  8. In the first place, it was argued that leave was granted to appeal despite opposition from the Crown. Secondly, it was argued that if the appeal was successful the applicant could expect an acquittal rather than a retrial. Thirdly and most importantly, it was argued that the applicant’s case on appeal was extremely strong and was likely to succeed.

  9. Apart from the factors set out hereinbefore it was…

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PW v The Queen [2019] NTCCA 15
Case
[2019] NTCCA 15
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CaseChat Overview and Summary

The applicant, PW, sought bail pending the determination of his appeal against conviction and sentence. The application was made pursuant to s 23A of the *Bail Act 1982* (NT), which requires the applicant to demonstrate the existence of special or exceptional circumstances to be granted bail in these circumstances.

The primary legal issues before the Court were whether the applicant had established special or exceptional circumstances justifying the grant of bail, and whether the prospects of success on appeal were such that it would be unjust to require the applicant to serve the majority or whole of his sentence before the appeal was heard. The Court also considered the concept of a "presumption of guilt" in the context of bail applications pending appeal.

Graham AJ found that the applicant had not satisfied the requirements of s 23A of the *Bail Act 1982* (NT). His Honour noted that the prospects of success on appeal were not strong enough to warrant the grant of bail, and that the applicant had not demonstrated any special or exceptional circumstances. The Court held that the mere fact that an applicant might serve a significant portion of their sentence before an appeal is heard does not, in itself, constitute a special or exceptional circumstance. The application for bail was refused.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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