R v Akis Emmanouel Livas - [2013] ACTSC 214

R v AKIS EMMANOUEL LIVAS
[2013] ACTSC 214 (11 October 2013)

CRIMINAL LAW – Jurisdiction, practice and procedure – committal to the Supreme Court – remitted to the Magistrates Court – s 90A of the Magistrates Court Act 1930 (ACT) – requirement to remit the matter to the Magistrates Court – no discretion where requested by the accused

Crimes Act 1900 (ACT) ss 54, 67
Criminal Procedure Act 1986 (NSW) s 104
Justices Act 1902 (NSW) s 51A
Magistrates Court Act 1930 (ACT), s 90A

Court of Petty Sessions Ordinance 1958 (ACT)

R v Bamford [1972] 2 NSWLR 261
R v Gomez (2007) 1 ACTLR 145
R v Labaro [2004] ACTSC 24
R v Linekar [1995] 3 All ER 69
R v Radic (2001) 122 A Crim R 70

EX TEMPORE JUDGMENT

No. SCC 393 of 2010

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 11 October 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 393 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:AKIS EMMANOUEL LIVAS

Applicant

AND:THE QUEEN
Respondent

ORDER

Judge:  Refshauge ACJ
Date:  11 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

The matter be remitted to the Magistrates Court for mention to the Magistrates Court on 21 October 2013.

On 8 December 2010, Akis Emmanouel Livas was committed by the Magistrates Court for sentence to this court on a charge under s 54(1) of the Crimes Act 1900 (ACT) that, on 21 October 2010, he had sexual intercourse with a woman without her consent, knowing that she had not consented or being reckless as to whether she had consented.

On committal, Mr Livas was bailed by the Magistrates Court to appear in this Court on 3 February 2011 but he failed to do so. The proceedings were adjourned for a week and a notice sent to the lawyer who acted for Mr Livas in the Magistrates Court, advising of the adjourned date. Mr Livas did not appear on the adjourned date of 10 February 2011. A warrant was issued for his arrest.

For reasons that are not entirely clear, Mr Livas was not arrested until 1 September 2013, when police attended at the address given on the Notice of Continuance of Bail signed by Mr Livas in the Magistrates Court. He appeared before Burns J the next day, and was remanded in custody, when he did not apply for bail. An annotation on the bench sheet recorded that the address where Mr Livas had been living for the past two and a half years was that of his mother, but when police approached her, she denied that he was living there.

On 18 September 2013, Master Mossop granted Mr Livas bail, as he had been offered employment as a truck driver with a design and construction company. In support of the application for bail, an affidavit was sworn by the lawyer for Mr Livas, setting out the usual matters and annexing a statement of the facts said to support the offence.

In…

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.

Keep reading for free

Create a free CaseChat account to read R v Akis Emmanouel Livas and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] ACTSC 214
Decision Date

CaseChat Overview and Summary

The case of R v Akis Emmanouel Livas involved the defendant, Akis Emmanouel Livas, who was charged under the Crimes Act 1900 (ACT) for engaging in sexual intercourse with a woman without her consent. Livas was initially committed for sentence by the Magistrates Court but failed to appear in the Supreme Court on the scheduled date, leading to a warrant for his arrest. After his eventual arrest and bail, Livas sought to have the proceedings remitted to the Magistrates Court for further hearing. The legal issues revolved around the interpretation and application of s 90A of the Magistrates Court Act 1930 (ACT), which mandates the Supreme Court to remit the case to the Magistrates Court if requested by the accused or if it appears that the facts do not support the charge.

The Supreme Court examined the language of s 90A(10) and noted that the provision is mandatory if the accused requests a remittal, without requiring the court to assess whether the facts support the charge. The court referenced cases such as R v Bamford and R v Radic to highlight that similar provisions in other jurisdictions do not include the requirement for a mandatory remittal upon request. The court found that the current drafting of s 90A(10) creates an obligation for the Supreme Court to order a remittal if requested by the accused, thereby ensuring that the proceedings in the Magistrates Court are treated as if no plea had been entered.

In light of the statutory obligation and the request by Livas's lawyer, the Supreme Court ordered that the matter be remitted to the Magistrates Court. The court's decision was based on the clear mandate of the statute and the request made by the defence, without any discretion on the part of the court to deny the remittal. The court scheduled the matter for mention in the Magistrates Court on 21 October 2013.

Orders