Re Afr - [2020] QSC 118

SUPREME COURT OF QUEENSLAND

CITATION:

Re AFR [2020] QSC 118

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

3 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2020

JUDGE:

Lyons SJA

ORDER:

1. Application for bail refused

CATCHWORDS:

CRIMINAL LAW — PROCEDURE — BAIL — AFTER CONVICTION — GENERALLY — where the applicant was convicted of one count of rape after a five-day trial and sentenced to six years imprisonment – where the applicant applied to the Court of Appeal to appeal against his conviction – where the appeal date has been set for 13 May 2020 – where the applicant applies for bail pending the hearing and determination of that appeal – whether there are strong grounds for concluding that the appeal will be allowed – whether the sentence imposed is likely to have been substantially served before the appeal is determined – whether the applicant has demonstrated exceptional circumstances in the context of the ongoing COVID-19 pandemic

Bail Act 1980 (Qld), s 8, s 16

Ex parte Maher [1986] 1 Qd R 303, cited
Edwards v The Queen (1993) 178 CLR 193, cited
Hanson v Director of Public Prosecutions [2003] QCA 409, cited

Re Broes [2020] VSC 128, cited

COUNSEL:

B Power for the applicant
C Wallis for the respondent

SOLICITORS:

Fisher Dore for the applicant
Office of the Director of Public Prosecutions for the respondent

HER HONOUR (delivered ex tempore): This is an application for bail. On 24 October 2019, he was convicted in the District Court of one count of rape after a five-day trial. He was sentenced to six years imprisonment. He has been in prison since that date. He is presently housed at Capricornia, near Rockhampton. He has applied to the Court of Appeal to appeal against his conviction. The appeal date has been set for 13 May 2020, and at the present time, there is no reason why that cannot proceed on that date.
He applies for bail pending the hearing and determination of that appeal. In essence, counsel for the applicant argues that his appeal against conviction has good prospects of success, the determination of the appeal may not occur for months, that with the present circumstances with respect to COVID-19, the situation in prison at the moment is risky, and there is a public interest in reducing the number of prisoners. It is also argued that the applicant is prepared to comply with very strict conditions, essentially including a 24-hour curfew to remain at his home, particularly to assist with the care of his children.
There is no doubt the Court has jurisdiction to grant bail pending an appeal. Section 8 of the Bail Act 1980 (Qld) sets out the relevant provisions, and as Thomas J indicated in Ex parte Maher,[1] subsections (1) and (5) of section 8 give jurisdiction to a Court to grant bail to an offender who wishes to an appeal against his conviction…

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.

Continue reading Re Afr

Details

AGLC: Re Afr [2020] QSC 118
Case: [2020] QSC 118
Decision Date: 3 April 2020

CaseChat Overview and Summary

The matter involved an applicant who had been convicted of one count of rape after a five-day trial and subsequently sentenced to six years imprisonment. The applicant sought bail pending the determination of an appeal against the conviction, scheduled for 13 May 2020. The application was made in the context of the ongoing COVID-19 pandemic, which had created exceptional circumstances warranting consideration.

The legal issues before the court were whether there were strong grounds to conclude that the appeal would be allowed, whether the sentence imposed would likely have been substantially served before the appeal was determined, and whether the applicant had demonstrated exceptional circumstances in light of the pandemic. The court had to balance the applicant's right to liberty against the interests of justice, including the need to maintain public confidence in the criminal justice system.

The court found that the applicant had not demonstrated strong grounds for concluding that the appeal would be allowed, nor had it been shown that the sentence would likely have been substantially served before the appeal was determined. While the COVID-19 pandemic was a relevant factor, it did not outweigh the need to maintain public confidence in the criminal justice system and the risk of reoffending if released on bail. The application for bail was, therefore, refused.

Orders

Orders of the court

1. Application for bail refused

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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CITATION:	Re AFR [2020] QSC 118
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	3 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2020
JUDGE:	Lyons SJA
ORDER:	1. Application for bail refused
CATCHWORDS:	CRIMINAL LAW — PROCEDURE — BAIL — AFTER CONVICTION — GENERALLY — where the applicant was convicted of one count of rape after a five-day trial and sentenced to six years imprisonment – where the applicant applied to the Court of Appeal to appeal against his conviction – where the appeal date has been set for 13 May 2020 – where the applicant applies for bail pending the hearing and determination of that appeal – whether there are strong grounds for concluding that the appeal will be allowed – whether the sentence imposed is likely to have been substantially served before the appeal is determined – whether the applicant has demonstrated exceptional circumstances in the context of the ongoing COVID-19 pandemic Bail Act 1980 (Qld), s 8, s 16 Ex parte Maher [1986] 1 Qd R 303, cited Edwards v The Queen (1993) 178 CLR 193, cited Hanson v Director of Public Prosecutions [2003] QCA 409, cited Re Broes [2020] VSC 128, cited
COUNSEL:	B Power for the applicant C Wallis for the respondent
SOLICITORS:	Fisher Dore for the applicant Office of the Director of Public Prosecutions for the respondent