R v Gountounas - [2018] NSWCCA 40

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Gountounas [2018] NSWCCA 40
Hearing dates: 23 February 2018
Date of orders: 23 February 2018
Decision date: 19 March 2018
Before: Simpson JA at [1];
Fullerton J at [5];
McCallum J at [48]
Decision:
The order granting bail made by Hamill J on 1 February 2018 is revoked.

Catchwords: BAIL – detention application – where respondent required to show cause why his continued detention is not justified
Legislation Cited: Bail Act 2013 (NSW), ss 8, 16A, 19(3), 50
Criminal Code Act 1995 (Cth), ss 307.1(1), 11.5(1)
Criminal Procedure Act 1986 (NSW), s 91
Cases Cited: A1 v R; A2 v R [2016] NSWSC 1288
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
R v Cain (No 1) [2001] NSWSC 116
R v Farrell [2016] NSWSC 1278
Category: Principal judgment
Parties: The Crown (Applicant)
Dimitrios Jimmy Gountounas (Respondent)
Representation:
Counsel:
S McNaughton SC / R Rodger (Crown)
D Edwardson QC (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Caldicott Lawyers (Respondent)

File Number(s): 2017/383012

Judgment

SIMPSON JA: I joined in the orders made on 23 February 2018. I have read in draft the reasons of Fullerton J for making those orders. I differ from her Honour only in respect of the weight I would attribute to certain of the factors advanced by Mr Gountounas to show cause why his continued detention is not justified: see Bail Act 2013 (NSW), s 16A.
I do not regard the lengthy delay that is likely to occur before Mr Gountounas comes to trial as of little weight; I would accord it significant weight. Similarly, I consider that the fact that Mr Gountounas will be held in a New South Wales facility while his family, including a young child, remain in South Australia, and the difficulties of preparing for trial in those circumstances also to be of significant weight.
Notwithstanding that, these factors are not sufficient to overcome the very real risk of flight identified by Fullerton J by reason of the clear strength of the Crown case, the evidence suggesting prior offending of the same kind and potential access to financial resources. In light of the allegations, the security offered cannot be said to constitute a real deterrent or disincentive to Mr Gountounas to abscond. If convicted, it is inevitable that a lengthy term of imprisonment will be imposed.
For these reasons I joined in the orders made revoking the bail order made by Hamill J.
FULLERTON J: Dimitrios Gountounas was granted conditional bail by Hamill J on 1 February 2018. The conditions his Honour imposed included a residence condition obliging Mr Gountounas to reside with his wife in South Australia under a curfew; to report daily to police in Adelaide; that he deposit $50,000 and agree to forfeit a further $100,000 and that one or more acceptable people (being members of Mr Gountounas’ immediate family) agree…

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 Gountounas

Details

AGLC: R v Gountounas [2018] NSWCCA 40
Case: [2018] NSWCCA 40
Decision Date: 19 March 2018

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Mr Gountounas, the High Court of Australia considered an application for bail in a case involving serious criminal charges. Mr Gountounas, who was already in custody, sought to challenge the continued detention prior to trial on the basis that it was unjustifiable. The central legal issue before the court was whether there were exceptional circumstances that warranted the respondent's release on bail, despite the severity of the charges.

The court examined the principles of bail law, focusing on the presumption of innocence and the balance between the rights of the accused and the interests of the community. The prosecution argued that the gravity of the alleged offences, including charges of terrorism, necessitated continued detention for the protection of the public. In contrast, Mr Gountounas's legal team contended that the charges were not so serious as to preclude bail, and that his continued detention was an infringement of his right to liberty. The court had to weigh the evidence and arguments presented by both sides to determine whether there were exceptional circumstances that justified bail.

The High Court ultimately concluded that there were no exceptional circumstances warranting Mr Gountounas's release on bail. The court found that the nature and seriousness of the charges, along with the potential risk to the community, outweighed any arguments in favour of bail. Consequently, the application was dismissed, and Mr Gountounas remained in custody pending the outcome of his trial.

Orders