Re D B A - [2008] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 696 of 2006

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by

DBA

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JUDGES:	MAXWELL P and NETTLE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2008
DATE OF REASONS:	7 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 138

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CRIMINAL LAW – Bail – Pending appeal – Whether exceptional circumstances – Whether appeal ‘bound to succeed’ - Likelihood that half of non-parole period will have expired before appeal heard – Bail refused – Re Zoudi (2006) 14 VR 580 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R L Gibson	Mr S Ward, Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest QC with Mr S Gillespie-Jones	Ferraro Pruscino & Co

MAXWELL P

NETTLE JA:

Following a trial in the County Court at Melbourne, on 22 May 2008 the applicant was convicted of two counts of incest. After a plea in mitigation of penalty, on 10 June 2008 he was sentenced to a total effective sentence of four years’ and six months’ imprisonment with a non-parole period of two years and three months.

On 20 June 2008 he filed notice of appeal against conviction alleging, inter alia, that:

1) The judge erred in preventing the applicant from leading evidence intended to impugn the character of the complainant.

2) A motive to lie having been put to the complainant in the course of her cross-examination, the judge erred in failing to direct the jury in accordance with the approach endorsed in Palmer v The Queen[1] that, if the jury rejected the motive to lie, it did not necessarily follow that the complainant was telling the truth; the prosecution still had to satisfy the jury of the truth of her testimony.

3) The judge erred in excluding evidence of a psychologist, Dr Gibb, called to prove that the complainant was prone to fantasizing about sexual matters.

[1](1998) 193 CLR 1, 10 [10].

Bail pending appeal will only be granted where exceptional circumstances are shown. In Re Zoudi[2] this Court held that, for the purposes of determining whether exceptional circumstances exist, it is relevant to consider the likely expiry of the non-parole period before the appeal is heard.[3] The Court went on to say:

Axiomatically, whether bail will be granted in a particular case will depend on all of the circumstances, of which the expiry of the non-parole period will only be one. There may be countervailing considerations, of the “unacceptable risk” variety, which mean that bail will be refused despite the fact that the non-parole period (or the suspended portion of a partly suspended sentence) will have expired before the appeal is heard. The question of whether the applicant can establish that he or she has reasonable prospects of success is another factor that must be considered. That is not to say that an application will fail because of the applicant’s inability to demonstrate the…

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 D B A

Details

AGLC: Re D B A [2008] VSCA 138
Case: [2008] VSCA 138
Decision Date: 7 August 2008

CaseChat Overview and Summary

In the matter of D B A, the applicant sought bail pending the determination of an appeal against his conviction and sentence. The decision was made by the Court of Appeal of the Supreme Court of Victoria. The primary legal issue the court had to address was whether there were exceptional circumstances that warranted the applicant's release on bail while his appeal was being heard. This determination hinged on whether the appeal was likely to succeed and if the applicant would serve half of his non-parole period before the appeal was heard.

The court considered the principles set out in Re Zoudi, which emphasises the need for exceptional circumstances to justify bail pending appeal. The applicant argued that the appeal was likely to succeed, which could lead to his release, and that half of his non-parole period would have elapsed before the appeal was determined. The court, however, found that the appeal did not have a strong likelihood of success, and there were no exceptional circumstances that would warrant granting bail. The court held that the appeal was not 'bound to succeed', and the applicant's potential release before the appeal was heard did not constitute exceptional circumstances.

Consequently, the application for bail was dismissed. The court determined that the applicant should remain in custody until his appeal was determined, as the appeal was not likely to succeed, and there were no exceptional circumstances that would warrant bail. The decision underscored the high threshold required for granting bail pending appeal and the importance of the appeal's likelihood of success in such cases.

Orders