R v Harris

[2011] SASCFC 162

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HARRIS

[2011] SASCFC 162

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Blue)

16 December 2011

CRIMINAL LAW - PROCEDURE - BAIL - JURISDICTION OF SUPREME COURT - AFTER CONVICTION

The appellant was granted permission to appeal but failed to appear before the District Court as required by his bail - the appellant had absconded and the District Court issued a warrant for his arrest but did not revoke bail - the Director of Public Prosecutions applies for an order under Supreme Court Criminal Appeal Rules 1996 (SA) Rule 20 summarily dismissing the appeal - the issue was whether the Court should summarily dismiss the appeal.

Held: the Court should not entertain an appeal of a person who is on continuing breach of bail for a substantial time, has given no good reason for that breach and who indicates an intention to continue that breach while he is at risk of imprisonment.

Criminal Law Consolidation Act 1935 (SA) s 24(1), s 170(1); Supreme Court Criminal Appeal Rules 1996 (SA) r 20, referred to.

R v HARRIS
[2011] SASCFC 162

Court of Criminal Appeal:  Doyle CJ, Vanstone and Blue JJ

1. DOYLE CJ (ex tempore): Mr Harris was convicted, after a jury trial in the District Court, on three counts. They are aggravated serious criminal trespass in a place of residence contrary to s 70(1) of the Criminal Law Consolidation Act 1935 (SA), causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act, and a further count of causing harm with intent to cause harm. The offences were committed on 26 December 2008.

2. The trial was in August 2011. The verdicts being returned on 29 August 2011. Mr Harris was remanded for sentencing but released on bail. He had been on bail before that.

3. Mr Harris filed an Application for Permission to Appeal on 20 September 2011. On 7 November 2011 a judge granted permission to appeal. The appeal was listed for hearing today, 15 December 2011.  Meantime, on 7 October 2011, Mr Harris failed to appear before the District Court as required by his bail. Apparently Mr Harris had seen his solicitor and said he would surrender to the police but he did not do so.  The Judge issued a warrant for his arrest but did not revoke bail.

4. Although there may have been some contact between Mr Harris and his solicitor, he has not appeared today, nor has he provided instructions in connection with the appeal. Attempts have been made by his solicitors to contact Mr Harris, but without success. There is no suggestion that Mr Harris is incapacitated or unable to attend for some good reason. It is likely that if that were the case, Mr Harris’ solicitors would have heard of it.

5. The Director of Public Prosecutions applies for an order under Rule 20 of the Supreme Court Criminal Appeal Rules 1996 (SA) summarily dismissing the appeal. The court has power to do so because Mr Harris is in breach of his bail. Mr Harris has been unresponsive now for over two months. I infer that he has no present intention of answering to his bail agreement, perhaps hoping meantime that his appeal will succeed. He is defying the District Court by his breach of bail, and hoping that this Court in the meantime will hear his appeal.

6. I consider that the Court should summarily dismiss the appeal, although it is not obliged to do so. The Court should not entertain the appeal of a person who is in continuing breach of his bail for a substantial time, has given no good reason for that breach and who indicates an intention to continue that breach while he is at risk of imprisonment. Accordingly, I would order that the appeal be summarily dismissed.

7. VANSTONE J:      I agree.

8. BLUE J:    I agree.

9. DOYLE CJ:           The order of the court is that the appeal be dismissed summarily in exercise of the power under Rule 20.