R v Alexopoulos - [2009] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 844 of 2009

THE QUEEN

FOTIUS ALEXOPOULOS

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APPLICATION FOR BAIL PENDING APPEAL

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JUDGES:	NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2009
DATE OF JUDGMENT:	18 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 269
JUDGMENT APPEALED FROM:	R v Alexopoulos (Unreported, County Court of Victoria, Judge Lewitan, 10 September 2009)

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Bail pending appeal – Applicant serving short non-parole period – Cancellation of applicant’s parole – Attitude of Parole Board to further grant of parole unknown – Re: Application for Bail by Zoudi (2006) 14 VR 580 distinguished – s 78 Corrections Act 1986 – Grant of bail futile – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr L R C Gwynn	Andrew George Solicitors

NEAVE JA:

I will ask Redlich JA to deliver the reasons of the Court.

REDLICH JA:

The applicant, having been convicted of one count of recklessly causing injury, received a sentence of 12 months' imprisonment with a non-parole period of six months. Having sought leave to appeal against conviction and sentence, the applicant seeks bail pending appeal.

It is well established that to succeed upon such an application, exceptional circumstances must be shown. The applicant seeks to rely upon a combination of factors but principally points to the possibility that he might serve a significant portion of the sentence imposed upon him prior to the hearing and determination of his appeal. He contends that by the time of a successful appeal, he may have served well in excess of any non-parole period that was considered appropriate.

The circumstances surrounding the commission of the offence can be briefly stated. On the evening of 15 April 2006, the applicant was involved in an altercation with other patrons of a night club located in the Crown Casino. The applicant claims to have been kicked and punched in the face during this altercation. Security personnel then ejected the applicant and other persons from the casino premises. The applicant remained outside the casino. A short time later, he spotted the victim, who was a security guard. The victim was not one of the security personnel involved in the earlier altercation in the night club. He was confronted by the applicant, who struck the victim with a number of blows to the head. After the victim fell to the ground, the applicant continued to strike and kick him. The applicant then walked away, and it was then alleged that he broke two glass doors at the casino. We note that there was an inconsistency between the affidavits filed on this application as to whether it was alleged that the windows were broken before or after the assault. He was subsequently located and restrained by security officers until police arrived at the scene.

The victim suffered injuries including a fractured mandible on the left and right sides.

The applicant 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 R v Alexopoulos

Details

AGLC: R v Alexopoulos [2009] VSCA 269
Case: [2009] VSCA 269
Decision Date: 18 November 2009

CaseChat Overview and Summary

In this matter, the respondent, Alexopoulos, made an application for bail pending the outcome of an appeal against his conviction and sentence. The application was heard by the County Court of Victoria, where Alexopoulos was serving a short non-parole period. The primary legal issue before the court was whether it was appropriate to grant bail to the applicant, who had his parole cancelled, and where the Parole Board's stance on future parole grants was uncertain. The court needed to weigh the principles established in Zoudi v R against the provisions of section 78 of the Corrections Act 1986.

The court considered the decision in Zoudi v R, which held that the cancellation of parole did not automatically disqualify an applicant from being granted bail pending appeal. However, the court also noted the importance of the Parole Board's potential attitude towards future parole grants in the context of the applicant's overall circumstances. Given that the Parole Board's stance was unknown, the court found it difficult to determine whether the grant of bail would be futile. Ultimately, the court determined that granting bail would be futile in this case, as the applicant's parole had been cancelled, and the Parole Board's attitude towards further parole grants remained uncertain. Therefore, the application for bail was refused.

The court emphasised the importance of balancing the principles in Zoudi v R with the specific circumstances of the applicant. In this instance, the uncertainty surrounding the Parole Board's future actions led the court to conclude that granting bail would be futile. Consequently, the application for bail pending appeal was denied.

Orders