Re Koch
[2013] VSC 425
•15 August 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0134
IN THE MATTER of an application for bail
by CHRISTOPHER PHILIP KOCH
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2013 | |
DATE OF JUDGMENT: | 15 August 2013 | |
CASE MAY BE CITED AS: | Re Koch | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 425 | |
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CRIMINAL LAW – Bail – Application for bail following conviction on indictment – Application for bail after appeal – Application for bail pending hearing of application for judicial review – Judicial review application out of time.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Crown | Ms F Thompson | Commonwealth Director of Public Prosecutions |
HIS HONOUR:
On 22 July 2010, following a trial in the County Court, the applicant was convicted of 15 counts of obtaining property by deception, seven counts of obtaining a financial advantage by deception and one count of making available a prescribed interest, contrary to s 1064 of the Corporations Law.[1] The applicant was sentenced in respect of these offences to a total effective sentence of 13 years and 2 months’ imprisonment, with a non-parole period of 10 years.
[1] Taken to be included in the Corporations Act 2011 (Cth) by virtue of s 1401 of that Act.
The applicant appealed against his conviction and sentence. On 15 December 2011, the Court of Appeal quashed the Corporations Law conviction, but otherwise dismissed the applicant’s appeal against conviction. The sentencing discretion having been re-opened, the Court of Appeal re-sentenced the applicant to a total effective sentence of nine years and ten months’ imprisonment, with a non-parole period of seven years and six months.[2] The applicant is presently serving this sentence.
[2] Koch v The Queen [2011] VSCA 435.
On 28 February 2013, the applicant commenced judicial review proceedings against the Crown pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. In the judicial review proceeding, the applicant seeks an order quashing his convictions in the County Court – this notwithstanding the hearing and determination of the applicant’s appeal by the Court of Appeal, and the imposition of the applicant’s current sentence by that court.[3] Further, and for the sake of completeness, I note that, in breach of rule 56.01(2)(b), the applicant has not named the County Court as a defendant to his judicial review proceeding.
[3]Cf Clarkson v DPP & ors [1990] VR 745. See further, M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed, 2013) at paragraphs [12.260] and [12.270].
In the applicant’s judicial review proceeding, the principal complaint made by the applicant concerns an allegation of bias against the County Court judge. The bias allegation relates to a disclosure made by the judge during the course of the applicant’s criminal trial that the judge knew a Crown witness. The applicant’s originating motion seeking to quash his convictions reveals that, upon the trial judge’s disclosure of a connection between the judge and the witness, an agreement was reached between the parties that the relevant witness would not be called. It now appears that the course taken by, and conduct of, the trial judge and counsel for the prosecution and the applicant at trial, forms the foundations of a contention by the applicant in the judicial review proceeding that the judge “erred in conspiring with … others to ‘attempt to pervert the course of justice’ or had knowingly ‘perverted the course of justice’”.[4]
[4] Underlining and bold type deleted.
The complaints made by the applicant concerning the conduct of his criminal trial relate to matters that on their face appear to have been known to the applicant at the time of his trial. Notwithstanding this fact, these complaints do not appear to have been the subject of the applicant’s appeal to the Court of Appeal.[5]
[5] On the appeal to the Court of Appeal, the applicant was represented by counsel and solicitors.
While I have not heard full argument concerning all aspects of the applicant’s judicial review proceeding, the problems associated with the applicant obtaining the relief he seeks in that proceeding are manifest. That said, the proceeding is currently on foot, and a directions hearing has now been scheduled before Zammit AsJ on Monday, 19 August 2013.
On 6 August 2013, the applicant filed a notice of intention to make application for bail. This is the hearing of the applicant’s application for bail.
The application for bail is supported by an affidavit of the applicant and an affidavit of Bianca Carla Koch. The reasons for the bail application are said to be that:
(a)the applicant has been “successful in obtaining a directions hearing on 19 August 2013 and needs time to prepare his case”; and
(b)the applicant has been in hospital for the past four weeks, having suffered three heart attacks and received four stents during three separate heart operations.
The applicant expanded on these matters during the hearing this morning, and relied upon an additional ground that preparation of his argument in the judicial review proceeding would be facilitated by the applicant’s release on bail (library and other resources in prison being said to be inadequate). Further, the applicant pointed to his good history of complying with bail conditions prior to his conviction.
It is trite that bail is only granted in exceptional circumstances after conviction on indictment.[6] The applicant’s difficulty in this regard is, in the present case, compounded by the fact that his appeal against conviction and sentence has been heard and determined by the Court of Appeal, which re-sentenced the applicant to the term of imprisonment which he is currently serving.
[6] See Re Clarkson [1986] VR 583; Re Jackson [1997] 2 VR 1; and Re Pennant [1997] 2 VR 85.
An additional problem for the applicant, both in his judicial review proceeding and in this application, is that the judicial review proceeding is now some years out of time.[7] In order to obtain an extension of time for his judicial review proceeding, the applicant will need to show “special circumstances”.[8] Nothing in the material relied upon by the applicant today suggests he has any reasonable prospects of establishing special circumstances.
[7] See r 56.02(1) which provides for a 60 day time limit for judicial review proceedings.
[8] See r 56.02(3).
The issues with respect to the applicant’s health do not justify the taking of what would be an extraordinary step in this case – that is, to grant bail to a prisoner serving a term of imprisonment following his conviction on indictment. Further, nothing in the material suggests to me that the applicant has any realistic prospects of obtaining the orders he seeks in the judicial review proceeding. Additionally, nothing put on this application discloses the required exceptional circumstances which might justify a grant of bail.
The applicant does not need a grant of bail to prosecute his judicial review proceeding. The applicant’s attendance before the Court can be secured by the issuing of an appropriate gaol order (as his attendance was for the hearing of this application this morning).[9] Further, in the event that the applicant is unable to persuade this Court to issue a gaol order, the applicant may advance his case (as some prisoners do) by video link from his prison to the Court.
[9] See regulation 20 of the Corrections Regulations 2009.
There is no basis upon which bail can or should be granted in this case. Accordingly, the application for bail will be refused.
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