Regina v MFA - [2002] NSWCCA 49

CITATION: Regina v MFA [2002] NSWCCA 49

FILE NUMBER(S): CCA 60331/2000

HEARING DATE(S): 4 March 2002

JUDGMENT DATE:
4 March 2002

PARTIES :

Regina
MFA

JUDGMENT OF: Stein JA at 20; Dowd J at 19; Buddin J at 1

LOWER COURT JURISDICTION: Court of Criminal Appeal

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER :

COUNSEL : LMB Lamprati (Crown)
TS Corish (Applicant)

SOLICITORS: SE O'Connor (Crown)
DJ Humphries (Applicant)

CATCHWORDS: Application for bail pending determination of Appeal to High Court - "special or exceptional circumstances"

LEGISLATION CITED: Bail Act 1978

CASES CITED:
Chew v The Queen (No2) (1991) 65 ALJR 19
Marotta v The Queen (1999) 73 ALJR 265
Parsons v R (1998) 72 ALJR 325
Robinson v R (1991) 65 ALJR 519
R v Velevski [2000] NSWCCA 445

DECISION: Bail granted upon agreed conditions.

60331/00

STEIN JA
DOWD J
BUDDIN J
4 MARCH 2002

REGINA v MFA

Judgment

1 BUDDIN J: The applicant seeks bail pending the hearing of his appeal to the High Court.

2 On 22 March 2002 following a trial before Judge Ford and jury, the applicant was convicted of the following offences:

(1) Assault and commit act of indecency upon a male person, being at the time of the offence under the age of 16 years, namely 15 years of age.

(2) Homosexual intercourse with the same person between the age of 10 and 18 years, namely 15 years of age.

3 He was sentenced in respect of the first matter to a fixed term of imprisonment for two and a half years to commence on 22 March 2000 and to expire on 21 September 2002 and in respect of the second matter to a period of imprisonment for three and a half years to commence on 22 March 2000 and to expire on 21 September 2003 with a non-parole period of 2 years 6 months to commence 22 March 2000.

4 The applicant was acquitted of seven other counts in the same indictment alleging sexual misconduct with the same complainant.

5 Thereafter he appealed to this Court. On 19 December 2000 he was released on bail pending determination of that appeal.

6 On 21 March 2001 the Court delivered judgment. The applicant’s appeal against conviction on both counts was dismissed. An appeal against the sentence in respect of the second matter was also dismissed. An appeal against sentence in respect of the first matter was upheld and the sentence reduced. This did not affect the overall sentence imposed.

7 As a consequence of the applicant having been on bail from 19 December 2000 until 21 March 2001, the dates for expiration of the head sentence and non-parole period have been adjusted by the Department of Corrective Services. The applicant will now be eligible to apply for parole on 22 December 2002.

8 On 1 May 2001 the applicant filed an Application for Special Leave to Appeal in the High Court of Australia. On 15 February 2002 the Court granted special leave.

9…

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 Regina v MFA

Details

AGLC: Regina v MFA [2002] NSWCCA 49
Case: [2002] NSWCCA 49
Decision Date: 4 March 2002

CaseChat Overview and Summary

In the case of Regina v MFA, the applicant sought bail pending the determination of an appeal to the High Court. The applicant was convicted of multiple counts of aggravated sexual assault and other related offences. The appeal was based on the grounds of errors in the trial judge's handling of evidence and directions to the jury. The application for bail was brought before the Court of Appeal, which considered whether the applicant met the criteria for special or exceptional circumstances under the Bail Act.

The legal issues before the Court of Appeal were whether the applicant had demonstrated that there were special or exceptional circumstances warranting bail pending the appeal, and whether the appeal had a reasonable prospect of success. The Court examined the nature and seriousness of the offences, the applicant's criminal history, the risk of reoffending, and the interests of the community. Additionally, the Court considered the applicant's conduct while on bail and the potential impact of a delay in the appeal on the applicant and the victims.

The Court of Appeal held that the applicant had not demonstrated the presence of special or exceptional circumstances necessary for the grant of bail. The Court emphasised the seriousness of the offences and the risk of reoffending, noting that the applicant's criminal history included previous convictions for violent offences. The Court concluded that the appeal did not have a reasonable prospect of success on the grounds advanced by the applicant. Consequently, the application for bail was dismissed.

The Court of Appeal ordered that the applicant remain in custody pending the determination of the appeal to the High Court. The Court stressed the importance of maintaining public confidence in the justice system and the need to protect the community and the victims from any potential risk posed by the applicant. The Court acknowledged the applicant's right to appeal and the importance of the appeal process, but found that the circumstances did not warrant the grant of bail at that stage.

Orders