Re: Kelly
[2015] QSC 299
•5 June 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Re: Kelly [2015] QSC 299
PARTIES:
BRIAN JOHN KELLY
(applicant)
vTHE QUEEN
(respondent)FILE NO/S: SC No 5301 of 2015 DIVISION:
Criminal
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 5 June 2015 DELIVERED AT:
Brisbane
HEARING DATE:
5 June 2015
JUDGE:
Peter Lyons J
ORDER:
It is ruled that the applicant is in a position where the onus is on him to show cause under s 16(3) of the Bail Act 1980 (Qld).
CATCHWORDS:
CRIMINAL LAW – BAIL – BEFORE TRIAL – GENERALLY – where the applicant sought bail in relation to charges allegedly committed in Queensland – where, at the time the Queensland charges were allegedly committed, the applicant was on bail in relation to 10 charges under the Crimes Act 1985 (Vic) – whether the offences the subject of the Victorian proceedings are to be taken to be indictable offences for the purposes of the latter part of s 16(3)(a) of the Bail Act 1980 (Qld) – whether the applicant was in a show cause situation for the purposes of s16(3)(a) of the Bail Act 1980 (Qld)
Bail Act 1980 (Qld), s 16(3)(a), s 67
COUNSEL:
A McDougall for the applicant
W M Slack for the respondent
SOLICITORS:
Lawler Magill for the applicant
Director of Public Prosecutions (Queensland) for the respondent
On this application for bail the respondent has contended that the applicant is in a show cause situation, as it is commonly described, under s 16(3)(a) of the Bail Act 1980 (Qld). The applicant has taken issue with that contention. The applicant is charged with a series of offences alleged to have been committed between the 24th of March 2013 and the 6th of February 2014. I have not seen the indictment, but rely for that on the respondent’s submissions, and an assurance by the respondent’s legal representative given from the bar table. The applicant has not suggested that that is incorrect.
The applicant has also been charged in Victoria with nine counts of obtaining financial advantage by deception contrary to s 82(1) of the Crimes Act 1985 (Vic), and one count of obtaining property by deception contrary to s 81(1) of that Act. The material indicates that he was arraigned in respect of those charges in August of 2013. Sentencing proceedings were held on 9 December 2013 in the Victorian County Court. It is plain that they related to a number of charges, and there is no reason to think that they did not relate to all or at least most of the charges I have identified. The sentence was not completed on that date, and the applicant was then released on bail.
The sentencing proceedings were due to resume on 28 March 2014. By that time the defendant had been arrested in this State on the 6th of February 2014, and a warrant has issued out of the County Court of Victoria for his arrest because, no doubt, of his failure to appear on the resumption of the sentencing proceedings.
Under s 16(3)(a) of the Bail Act a requirement to show cause applies where a defendant is charged with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence. In the present case it is clear enough that the applicant has been charged with a number of indictable offences. I have indicated the dates between which they are alleged to have been committed. It is clear also that so far as the Victorian proceedings are concerned the applicant has been at large from the 9th of December 2013.
It would seem that he had been at large before the 9th of December 2013 for some time in respect of those offences because it was said that he was arrested on the 15th of October 2010 and released on bail on the 20th of October of that year after extradition to Melbourne from Queensland. It would therefore appear that he was at large in respect of those offences from the 20th of October 2010 until the 9th of December 2013.
The latter part of s 16(3)(a), it seems to me, refers to matters related to an indictable offence other than that in respect of which the applicant is seeking bail. However, that section is intended to identify the period from a defendant’s apprehension up until the time of his trial in respect of that other indictable offence. I pause to note that the term ‘trial’ is defined in s 6 of the Bail Act to include:
“…a proceeding wherein a person is to be sentenced.”
One question is whether the offences the subject of the Victorian proceedings are to be taken to be indictable offences for the purposes of the latter part of section 16(3)(a). In spite of some research neither of the parties has been able to assist me on this question nor is there anything in the Bail Act itself which I have been able to identify as assisting in the resolution of the matter.
In schedule 1 of the Acts Interpretation Act 1954 (Qld) the expression “indictable offence” is defined to include:
“…an act or omission committed outside Queensland that would be an indictable offence if it were committed in Queensland.”
The matters the subject of the Victorian proceedings, it was accepted on behalf of the applicant, satisfy this description. That is to say if the acts the subject of the Victorian proceedings had been done in Queensland, they would be indictable offences in Queensland. On that basis it seems to me that the Victorian proceedings related to other indictable offences for the purposes of s 16(3)(a) of the Bail Act. At least until the time of the applicant’s arraignment it could be said that he was awaiting trial for those offences.
There may be some debate about whether the period between the arraignment and the commencement of the sentencing proceedings was a period when the applicant was at large awaiting trial for the Victorian offences. It seems however sufficient for me to conclude that at least until his arraignment the applicant was at large awaiting trial for those offences given the overlap between that period and the period over which the offences are alleged to have been committed. It seems to me that s 16(3)(a) of the Bail Act applies with the consequence that the applicant must show cause why his detention in custody is no longer justified. Accordingly I rule the applicant is in a position where the onus is on him to show cause under s 16(3) of the Bail Act
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