R v Kostaras No. Sccrm-02-195

[2002] SASC 231

R V KOSTARAS

[2002] SASC 231

1. BLEBY J               This is an application for bail pending hearing of an appeal against conviction.

2. 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.

3. 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.”

4. 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.

5. 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.”

6. 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).

7. 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 factor.

8. Offsetting that in this case, Mr Edwardson argues that the appeal on the particular ground that I have quoted has substantial prospects of success, and that along with other factors, namely that the applicant has no previous convictions, that the offending is alleged to have been committed 15 years ago, that the applicant has always answered his bail pending trial, that there is no suggestion of any present or recent contact with the alleged victim and the fact that he is prepared to submit to a residence condition, justifies the grant of bail pending the hearing of the appeal.  However, unlike some cases which have justified a grant of bail pending an appeal, the applicant cannot say that the appeal will be rendered nugatory if bail is not granted.  There is no question of the whole or a substantial part of the sentence having been served by the time that the appeal is heard.

9. I turn to the argument based on the strength of the appeal.  Besides evidence of the four events the subject of the information, the complainant gave evidence of other acts of sexual intercourse and of indecent sexual behaviour involving the applicant on a number of occasions throughout the relevant period.  These were mentioned in passing by the trial Judge in his summing up to the jury (pages 7-9) as part of his Honour’s summary of the narrative of events given in examination-in-chief by the complainant.  No directions were given to the jury of the use that could or could not be made of the evidence of those uncharged events.

10. Mr Edwardson relied heavily on the decision of the Court of Criminal Appeal in R v Nieterink (1999) 76 SASR 56, and in particular the reasons for judgment of the Chief Justice. In that case evidence had been given by the complainant of uncharged sexual incidents involving the appellant. As was held in that case, the trial Judge drew the attention of the jury to the importance for them to understand the use that could or could not be made of such evidence, but then proceeded to give a few non-specific and very general directions, suggesting that the evidence in question was uncontroversial. In fact, not only were all the incidents denied by the appellant, but the appellant was also relying on alleged inconsistencies between what the complainant had said in evidence and in earlier accounts of some of the events. It was in the circumstances of that case that the Court held (at [81] – [93]) that the jury had to be directed clearly not to act upon the evidence unless satisfied of its truth, as to how they could not use the evidence and as to the particular manner in which they could use it, and not to apply any propensity reasoning to the uncharged incidents.

11. I respectfully agree that that was required in the circumstances of that case.  However, there is nothing in the reasons for judgment to indicate that those directions must be given in every case where there is evidence of uncharged acts, regardless of the circumstances.  Indeed, in one of the cases cited by the Chief Justice in support of those propositions, R v Dolan (1992) 58 SASR 501 at 503 King CJ suggested that such directions were necessary “in all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury.” He also used phrases such as “in most cases” and “in such a case as the present” where it was important to give similar types of directions. The facts in Dolan were not identical with those in Nieterink or with those in this case. 

12. If any recent authority is needed as to the lack of any universal rule in such cases, it can be found in KRM v The Queen (2001) 75 ALJR 550; [2001] HCA 11 where McHugh J said, at [31]:

    “Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century.  But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it.”  (Emphasis added).

13. The reference by McHugh J in that context to  T (1996) 86 A Crim R 293 at 299 – 300 does not assist the applicant’s argument. In that case Southwell AJA on behalf of the Court of Appeal (Vic) expressed a rule with similar qualifications to those expressed by King CJ in R v Dolan (supra).

14. In KRM v The Queen, Hayne J agreed with McHugh J and said, at [134]:

    “I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning.” (Emphasis added).

15. The present applicant may well have a strong case on appeal, but I cannot say that it is unanswerable.  The failure to give any directions will need to be assessed against the significance that the uncharged events assumed in the evidence and in the summing up.  Their significance was not highlighted by the judge, as was the case in  R v Nieterink (supra), and the omission will have to be assessed in the context of the whole summing up, particularly propensity directions given in respect of particular exhibits (summing up page 15) and in respect of other events charged (summing up pages 6, 18), and in the context of other general directions given by the trial Judge.

16. Not a lot of help can be gained in the exercise of the discretion under s 10(2) Bail Act from the particular circumstances of other similar applications where the evidence and the nature of the summing up under appeal is different, and where there are very different circumstances personal to the applicant.

17. In the circumstances of this case, I am not prepared to say that the factors relied on by the applicant outweigh the significance of the conviction and sentence and other factors relevant to the exercise of the discretion.  In this regard I have also taken into account the length of the sentence, the date from which it operates and the likely hearing date of the appeal.  In all the circumstances I am not prepared to exercise the discretion to grant bail at this stage.  If the applicant does succeed on the appeal and a retrial is ordered, then an application for bail can no doubt be renewed and considered in the light of the circumstances then prevailing.  The application for bail is refused.