R v Martens

In the case of R v Martens, the applicant was convicted of engaging in sexual intercourse with a person under 16 outside Australia, contrary to section 50BA of the Crimes Act 1914 (Cth). Following his conviction, a matter was referred to the Court of Appeal on a petition for mercy. The primary issue for the court was whether the applicant, who would have served a substantial portion of his sentence if remanded until the hearing of the referral, should be granted bail due to what was alleged to be fabricated evidence from the complainant. This raised questions about the exceptional circumstances necessary for the grant of bail after conviction.

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.