SUPREME COURT OF QUEENSLAND
CITATION:
R v Martens [2009] QCA 139
PARTIES:
R
v
MARTENS, Frederick Arthur
(applicant)FILE NO/S:
CA No 85 of 2009
SC No 83 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Miscellaneous Application – Criminal
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
26 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
21 May 2009
JUDGES:
Keane and Fraser JJA and Applegarth J
Judgment of the CourtORDERS:
The applicant be admitted to bail upon his own undertaking in respect of the charge that between 10 and 16 September 2001 at Port Moresby in the Independent State of Papua New Guinea he, an Australian citizen, while outside Australia, engaged in sexual intercourse with a person who was under 16, contrary to s 50BA of the Crimes Act 1914 (Cth), such undertaking being conditioned that: 1.
the applicant shall surrender any passport in his possession, power or control to the Office of the Commonwealth Director of Public Prosecutions in Cairns, and shall not apply for any travel document without the prior written consent of the Commonwealth Director of Public Prosecutions; a.
the applicant shall not directly contact any potential witnesses. b.
The legal representatives of the parties confer and submit to the Court by 4.00 pm Thursday 4 June 2009 proposed directions for the further conduct of the matter, including any proposals for the taking of evidence by video link.2.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – BAIL – AFTER CONVICTION – SPECIAL OR EXCEPTIONAL CIRCUMSTANCES – GENERALLY – where applicant convicted of offence and matter referred to Court of Appeal on petition for mercy – where uncontradicted evidence that complainant told others subsequent to conviction that complaint was fabricated – where applicant would have served substantial portion of sentence if remanded until hearing of referral – whether extraordinary circumstances exist to warrant grant of bail
Acts Interpretation Act 1954 (Qld), s 35, s 36
Crimes Act 1914 (Cth), s 50BA
Criminal Code 1899 (Qld), s 1, s 668D, s 672A
Judiciary Act 1903 (Cth), s 68Chamberlain v The Queen [No 1] (1983) 153 CLR 514; [1983] HCA 13, considered
Ellis v R [1998] 3 NZLR 555, applied
Ex parte Maher [1986] 1 Qd R 303, cited
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited
Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241; [2003] QCA 409, cited
Martens v Commonwealth of Australia (2009) 253 ALR 457; [2009] FCA 207, considered
Mallard v The Queen (2005) 224 CLR 125; [2008] HCA 68, cited
Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, considered
R v Ali [2008] QCA 39, cited
R v Butler [2009] QCA 111, cited
R v MAM [2005] QCA 323, cited
R v Martens [2007] QCA 137, cited
R v Nudd [2007] QCA 40, citedCOUNSEL:
M P Sumner-Potts for the applicant
J Bentley for the respondent
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- AGLC
- R v Martens [2009] QCA 139
- Case
- [2009] QCA 139
- Decision Date
CaseChat Overview and Summary
The court needed to determine if the circumstances presented were indeed so extraordinary as to warrant the granting of bail. It considered the uncontradicted evidence that the complainant had told others after the conviction that the complaint was fabricated. The court had to weigh the impact of this evidence on the applicant’s case and the potential prejudice to the administration of justice if bail was granted. Furthermore, the court had to examine the principle of finality of judgments and the exceptional nature of the circumstances that might justify departing from this principle.
The court concluded that the evidence of the complainant's retraction, if true, constituted extraordinary circumstances. Given the substantial time the applicant would have already served if remanded, the court found that the interests of justice favoured granting bail. The applicant was admitted to bail on his own undertaking, subject to stringent conditions, including the surrender of any passport and restrictions on contacting potential witnesses. The court also mandated that the legal representatives of the parties confer and submit proposed directions for the further conduct of the matter.
The final orders of the court granted the applicant bail with specific conditions and mandated that the parties confer to propose directions for the matter's progression, including the possibility of evidence being taken by video link. This decision reflects a careful balancing of the principles of finality of judgments, the exceptional circumstances doctrine, and the interests of justice in individual cases.
Orders
Orders of the court
The applicant be admitted to bail upon his own undertaking in respect of the charge that between 10 and 16 September 2001 at Port Moresby in the Independent State of Papua New Guinea he, an Australian citizen, while outside Australia, engaged in sexual intercourse with a person who was under 16, contrary to s 50BA of the Crimes Act 1914 (Cth), such undertaking being conditioned that: 1.
the applicant shall surrender any passport in his possession, power or control to the Office of the Commonwealth Director of Public Prosecutions in Cairns, and shall not apply for any travel document without the prior written consent of the Commonwealth Director of Public Prosecutions; a.
the applicant shall not directly contact any potential witnesses. b.
The legal representatives of the parties confer and submit to the Court by 4.00 pm Thursday 4 June 2009 proposed directions for the further conduct of the matter, including any proposals for the taking of evidence by video link.2.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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