PW v The Queen - [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)

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.
The applicant has been in custody since the verdict.
The minor was his nine year old niece.
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.
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.
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.
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.
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.
Apart from the factors set out hereinbefore it was…

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 PW v The Queen

Details

AGLC: PW v The Queen [2019] NTCCA 15
Case: [2019] NTCCA 15
Decision Date: 20 June 2019

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