Re Koch - [2013] VSC 425

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, (5^th 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…

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 Koch

Details

AGLC: Re Koch [2013] VSC 425
Case: [2013] VSC 425
Decision Date: 15 August 2013

CaseChat Overview and Summary

The case of Re Koch involved the applicant seeking bail following a conviction on indictment. The applicant had previously appealed against the conviction, which was dismissed. Subsequently, the applicant applied for bail pending a hearing of an application for judicial review. However, the application for judicial review was out of time. The matter was heard in the Federal Court of Australia.

The legal issues before the court included whether the applicant was entitled to bail after the dismissal of the appeal against conviction and whether the applicant was entitled to bail pending the hearing of an application for judicial review, which was out of time. The court was required to balance the applicant's right to liberty against the need to ensure the applicant's attendance at any future proceedings.

The court held that the applicant was not entitled to bail following the dismissal of the appeal against conviction. The court noted that the applicant had been convicted of a serious offence and that the appeal against conviction had been dismissed. The court further held that the applicant was not entitled to bail pending the hearing of an application for judicial review, which was out of time. The court noted that the application for judicial review was out of time and that there were no exceptional circumstances that warranted the grant of bail. The court held that the applicant's right to liberty must be balanced against the need to ensure the applicant's attendance at any future proceedings, and that the balance fell in favour of denying bail.

The court denied the applicant's application for bail. The court held that the applicant was not entitled to bail following the dismissal of the appeal against conviction or pending the hearing of an application for judicial review, which was out of time. The court noted that the applicant had been convicted of a serious offence and that the appeal against conviction had been dismissed. The court further held that there were no exceptional circumstances that warranted the grant of bail.

Orders