R v Kostaras No. Sccrm-02-195 - [2002] SASC 231

R V KOSTARAS
[2002] SASC 231

BLEBY J This is an application for bail pending hearing of an appeal against conviction.
On 10 May 2002 the applicant was found guilty by a jury and convicted on four counts of unlawful sexual intercourse. The offences were alleged to have occurred during 1987, the one victim being a male then aged 15 or 16. Following his conviction the applicant was subsequently sentenced to six years imprisonment with a non-parole period of two years and nine months, both commencing on 10 May 2002, the date of his conviction. Until that time he had been on bail.
On 12 July 2002 I granted leave to appeal against the convictions on two grounds. One of them is as follows:
“The learned trial Judge erred in failing to direct the jury as to the permissible use to be made of uncharged criminal acts of unlawful sexual intercourse, and that such acts could only be relied on if the jury was satisfied beyond reasonable doubt that they occurred.”
It was on the basis of what Mr Edwardson, counsel for the applicant, submitted was the strength of that ground that he argued that the applicant should be released on bail pending the appeal.
Section 10(2) of the Bail Act 1985 provides:
“(2)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.”
This is to be contrasted with the provisions of s 10(1) which provides that in respect of an application for bail pending trial, a bail authority should release the applicant on bail unless, having regard to a number of factors listed in the sub-section, the authority considers that the applicant should not be released on bail. By contrast, the discretion to grant bail under s 10(2) is at large and is unfettered. There is certainly no presumption in favour of a grant of bail, as is the case on an application for bail pending trial. Likewise, there is no presumption against bail being granted: Beshara & Kleut v Paphitis (1987) 136 LSJS 16. For this reason it is incorrect to suggest that bail pending appeal will only be granted in exceptional or special circumstances. In that regard I respectfully agree with what was said in R v Flanigan (Debelle J, 25 November 1996, Judgment No. S5937, unreported) and by Gray J in R v Baker [2000] SASC 281. To hold that exceptional circumstances are required is to fetter, improperly, the discretion conferred by s 10(2).
However, one factor that is present in this case and will always militate against the exercise of the discretion is the fact that the applicant has been found guilty by a jury, has been convicted and sentenced to a significant period of imprisonment, with a substantial period still to be served. Quite clearly, that is not the only governing…

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.

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Details

Case: [2002] SASC 231
Decision Date: 18 July 2002

CaseChat Overview and Summary

The case of R v Kostaras involved an application for bail pending an appeal against conviction. The applicant, Kostaras, was convicted on four counts of unlawful sexual intercourse, with the offenses alleged to have occurred in 1987 when the victim was aged 15 or 16. Following his conviction, Kostaras was sentenced to six years imprisonment, with a non-parole period of two years and nine months, both commencing on the date of his conviction. The applicant had been on bail until this time. On 12 July 2002, the court granted leave to appeal against the convictions, with one ground being the trial judge's failure to direct the jury on the permissible use of uncharged criminal acts of unlawful sexual intercourse. Counsel for the applicant argued that the strength of this ground justified the release of the applicant on bail pending the appeal.

The court was required to decide whether to exercise its discretion to grant bail pending the hearing of the appeal. The discretion is provided by Section 10(2) of the Bail Act 1985, which allows the bail authority to decide whether to release the applicant on bail. The court noted that the discretion is unfettered and that there is no presumption in favour of granting bail, unlike the provisions for bail pending trial. The court also considered the factors relevant to the exercise of the discretion, including the applicant's previous convictions, the time elapsed since the alleged offenses, the applicant's compliance with bail conditions, and the prospects of success on the appeal.

The court determined that the factors relied on by the applicant did not outweigh the significance of the conviction and sentence and other relevant factors. The court noted that the applicant had been found guilty by a jury, had been convicted, and sentenced to a significant period of imprisonment, with a substantial period still to be served. The court also considered the strength of the appeal and the potential consequences of granting bail. The court concluded that it was not prepared to exercise the discretion to grant bail at that stage, as the applicant could not demonstrate that the appeal would be rendered nugatory if bail was not granted. The application for bail was refused.

The final orders of the court were to refuse the applicant's application for bail pending the hearing of the appeal. The court noted that if the applicant succeeded on the appeal and a retrial was ordered, then an application for bail could be renewed and considered in the light of the circumstances then prevailing.

Orders