R v Frederick - [2004] SASC 304

Supreme Court of South Australia
(Criminal: Application)
R v FREDERICK
Reasons for Ruling of The Honourable Justice Sulan (ex tempore)
20 September 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL
Applicant convicted of one count of unlawful sexual intercourse and one count of indecent assault - leave to appeal granted on three grounds of appeal - applicant applied for bail pending determination of the appeal - DPP opposed the application - whether the applicant established appropriate grounds for the exercise of discretion to grant bail - home detention bail granted.
Bail Act 1935, referred to.
R v Baker [2000] SASC 281; R v Velevski (2000) 117 A Crim R 30, applied.
Beshara and Kleut v Paphitis (1987) 136 LSJS 16; Ex parte Maher (1986) 1 Qd R 303; Marotta v R (1998) 73 ALJR 265; R v Blayney [2002] SASC 184; R v Flanigan Judgment No.S5937 delivered 25 November 1996; R v Halas [2001] SASC 172, considered.

R v FREDERICK
[2004] SASC 304
Criminal: Application for Bail

SULAN J This is an application for bail pending appeal. The applicant was convicted by a jury of one count of indecent assault and one count of unlawful sexual intercourse with a girl under the age of 17 years.
The applicant sought leave to appeal against the convictions. The more serious offence was an incident when the applicant had vaginal sexual intercourse with the daughter of his then de facto partner. The evidence of the complainant at trial was that that incident was the last act of sexual intercourse which took place, the other acts being the subject of other counts of which the jury acquitted the applicant. The complainant said that the last occasion that sexual intercourse took place was at the applicant’s office. It was on that day that she left the household in which she had resided with the applicant and her mother.
The complainant’s mother gave evidence that she observed an act of sexual intercourse between the applicant and the complainant at their home when she came home from being out. She gave evidence that the complainant left the home the following day.
There are four grounds of appeal. On 30 August 2004 Perry J granted leave to appeal on three grounds.
The first ground of appeal is that the learned trial judge erred in directing the jury that the evidence of the complainant’s mother was capable of supporting the complainant’s evidence.
The second ground is that the verdicts are inconsistent as the jury acquitted the applicant in respect of three other counts of sexual misconduct with the complainant. It is suggested that it is inconsistent for the jury to reject her evidence of three counts and accept it in respect of another count alleging similar conduct.
The fourth ground relates to the conviction of indecent assault.
Earlier today the applicant was sentenced to three years imprisonment with a non-parole period of 18 months. He seeks bail pending appeal.
As I…

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 Frederick

Details

AGLC: R v Frederick [2004] SASC 304
Case: [2004] SASC 304
Decision Date: 20 September 2004

CaseChat Overview and Summary

The applicant, Frederick, was convicted of one count of unlawful sexual intercourse and one count of indecent assault. He was subsequently granted leave to appeal his conviction on three grounds. Pending the determination of his appeal, Frederick applied for bail. The Director of Public Prosecutions opposed the application, arguing that Frederick had not established grounds for the exercise of the court's discretion to grant bail. The court was required to determine whether Frederick's application for bail should be granted and, if so, on what conditions.

The court considered the principles governing the grant of bail pending appeal, including the likelihood of success on appeal, the seriousness of the offence, and the risk of reoffending. The court noted that Frederick had not previously been convicted of a serious sexual offence and that the risk of reoffending was low. The court also considered the public interest in ensuring that individuals who pose a significant risk to the community are not released on bail. Ultimately, the court determined that Frederick had established appropriate grounds for the exercise of its discretion to grant bail and that home detention bail was an appropriate condition to mitigate the risk of reoffending.

The court granted Frederick bail pending the determination of his appeal, subject to conditions including home detention and electronic monitoring. The court also ordered that Frederick be subject to a curfew and be prohibited from contacting any potential witnesses in the case. The decision highlights the importance of balancing the interests of the accused, the victims, and the community in determining whether bail should be granted pending appeal.

The orders of the court included that Frederick be granted bail pending the determination of his appeal, subject to the conditions of home detention, electronic monitoring, a curfew, and a prohibition on contacting potential witnesses. The court's decision demonstrates a careful consideration of the relevant principles and a commitment to ensuring that the interests of all parties are taken into account in the grant of bail.

Orders