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 have indicated, leave to appeal has been granted and it is likely that the appeal will be listed in the October sessions of the Court of Criminal Appeal.
Section10(2) of the Bail Act 1935 provides:
“Where the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail.”
In the decision of Beshara and Kleut v Paphitis,[1] Cox J considered the construction of s 10(2). He considered that the court has an unfettered discretion to grant bail, but that a convicted person seeking bail pending appeal has the task of satisfying the court that his is a proper case for the grant of bail.
[1] (1987) 136 LSJS 16
The presumption in favour of the grant of bail in an application before conviction has no application to the consideration of bail pending appeal.
I adopt what was said by Gray J in R v Baker.[2] He said:
“That discretion is not to be fettered by adjectives such as “special” or “exceptional”. It is necessary for the applicant to establish appropriate grounds for the exercise of discretion in his favour. In my view there is no presumption for or against a grant of bail following conviction.”[3]
[2] [2000] SASC 281
[3] Ibid at [7]
Some of the features to be considered in determining whether to grant bail pending appeal were discussed in R v Velevski.[4] Barr J identified a number of features to which the court will have regard when considering an application for bail pending appeal. His Honour adopted those features, having taken them from the decision of Callinan J in Marotta v R.[5] Those relevant to the present application are as follows:
[4] (2000) 117 A Crim R 30
[5] (1998) 73 ALJR 265 at 267
Firstly, the prospects of success of an appeal. Leave to appeal has been granted. It has been determined that there are arguable grounds of appeal. There is strength in the argument of counsel for the applicant that if this appeal were to succeed, it is arguable that the conviction will be set aside and no retrial ordered. On one view, that strengthens the submission when considered against cases in which a successful appeal can only result in a retrial. I make the observation that it is arguable in this case that if the conviction were set aside, there may be no retrial.
The second feature to which Barr J referred was that the arguable point might have real substance and might justify a retrial. In this case, in my view, the arguable points have some real substance and at least one of them might justify an order for acquittal.
The third factor is that pending trial the applicant was granted bail and complied with the conditions of his bail. That is clearly the case in this case.
Further features were whether the applicant is likely to abscond or offend whilst on bail. It is highly unlikely that this applicant will abscond or re-offend. It was not submitted by counsel for the Crown that that is a factor to which I should have regard.
A further matter to which I have regard is that if the appeal fails, the applicant will have to serve his full sentence and, therefore, the public interest in the effect of a conviction is not adversely affected, whereas there is no public interest in the incarceration of people who might turn out to have been wrongly convicted, according to law.
It was submitted by counsel for the Crown that it is a rare case in which bail is granted pending appeal. I accept that general proposition but I note that in recent years bail has been granted pending appeal in a number of cases, including R v Flanigan,[6] R v Baker[7] and R v Blayney.[8] Bail was also granted pending appeal to the High Court in the matter of Marotta. In the case of Baker, Gray J took into account that the applicant was 57 years of age, of good character, with no prior convictions, with a long record of community service and with some ill health. In Blayney, Gray J observed that an alternative to an applicant remaining in custody was to place the applicant on home detention bail. He referred to the decision of R v Halas[9] in which it was observed that home detention bail operates as a material deprivation of liberty.
[6] Judgment No. S5937 delivered 25 November 1996
[7] Above, note 2
[8] [2002] SASC 184
[9] [2001] SASC 172
In Ex parteMaher,[10] Thomas J referred to a number of factors which militate against the grant of bail pending appeal. They included that a grant of bail pending appeal makes a conviction appear contingent until confirmed. Further, it places a court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period at liberty on bail. It further encourages unmeritorious appeals and it undermines respect for the judicial system in having a recently sentenced man walking free. He further referred to the fact that it undermines the public interest in having convicted persons serve their sentence as soon as practicable.
[10] (1986) 1 Qd R 303 at 310
I have had regard to those factors. In this case the appeal cannot be said to be unmeritorious, as leave has been granted. Secondly, if bail is granted on strict conditions one could not regard the applicant as walking free. Thirdly, as the appeal is to be heard next month, there will not be an unnecessarily lengthy delay in the applicant having to serve his sentence if the appeal fails. The fact that a person’s circumstances may change between conviction and a determination of the appeal also applies to bail granted to persons who are not convicted. Their circumstances may change dramatically between the time of arrest and conviction, yet that is not a basis for not granting bail. Finally, if the act of granting bail pending appeal makes a conviction appear contingent until confirmed, and that is an overriding factor, then bail pending appeal would never be granted.
The applicant is 57 years of age. He is married and has a number of children by an earlier marriage and by his current marriage. He has 10 grandchildren. He has worked throughout his life within the community in South Australia. He has no previous convictions and it cannot be said that he is a risk of absconding from bail. A further factor to which I have had regard is that the applicant cannot and will not be treated in the usual way when he is first incarcerated. Because of the nature of his offending, and the nature of the position he held at the time of his conviction, his initial period in custody will have to be as a protectee. It is accepted that that period will be more difficult than with prisoners who are not required to be protected.
In my view, if the applicant were released on bail on strict home detention conditions then it cannot be said that he will be walking free. His liberty and movements will be severely restricted. The application is granted.
The applicant will be released on bail upon his entering into his own recognisance of $10,000 to be deposited in cash or by bank cheque. The conditions of his bail will be that he agrees not to leave the State for any reason except as allowed under the Bail Act; that he will surrender any passport that he possesses forthwith; that he will not communicate with or contact directly or indirectly Kim Adel Muhleder, Michaela Jacqueline Thomson and Margaret Jacquelynn Frederick. I order that there be three guarantors, they being Elaine Frederick in the sum of $10,000 to be deposited in cash or by bank cheque, and Darlene Haysman in the sum of $5000 in her own recognisance and Pamela Craft in the sum of $5000 in her own recognisance; that the applicant will reside at 9 Tralee Avenue, Broadview and not absent himself from that address except for any necessary medical or dental treatment or to minimise risk of serious injury or death, whether to himself or some other person, or for any other purpose approved by a Community Corrections Officer of the Department for Correctional Services; that he will obey all the lawful instructions of any Community Corrections Officer designated to supervise him on home detention and that immediately upon his release he will travel to the address described above and will contact the home detention unit of the Department for Correctional Services at telephone 8406 3850.