Viavattene v R - [2018] NSWCCA 197

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Viavattene v R [2018] NSWCCA 197
Hearing dates: 5 September 2018
Date of orders: 05 September 2018
Decision date: 05 September 2018
Before: Hoeben CJ at CL
McCallum J
Beech-Jones J
Decision:
(1) Release application dismissed.
(2) Bail refused

Catchwords: CRIMINAL LAW – bail – release application – bail sought pending appeal to District Court – intimidation offences – show cause – prospects of appeal – cause not shown – bail refused
Legislation Cited: Bail Act 2013 (NSW), ss 16B(1)(h)(i), 49, 67(1)(e)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13(1), 14(1)
Criminal Code 1995 (Cth), s 474.17(1)
Cases Cited: R v Kugor [2015] NSWCCA 14
R v Campbell [2015] NSWCCA 173
Director of Public Prosecutions (NSW) v Tony MAWAD [2015] NSWCCA 227
Trinh v R [2016] NSWCCA 110
Morgan v District Court of New South Wales [2017] NSWCA 105
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
R v Peter Viavattene, Supreme Court, 21 June 2018, unreported
R v Peter Steven Viavattene, District Court, 30 July 2018, unreported
Category: Principal judgment
Parties: Peter Viavattene (Applicant)
Regina (Crown)
Representation:
Counsel:
In person (Applicant)
C Curtis (Crown)
Solicitors:
In person (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/220614

Judgment

THE COURT: This is an application made pursuant to s 49 of the Bail Act 2013 (NSW) for release on bail pending the hearing of an appeal to the District Court against convictions entered in, and sentences imposed by, the Local Court.
This Court has jurisdiction to hear the application by the operation of s 67(1)(e) of the Bail Act which enables the Court to hear a bail application for an offence if a bail decision has been made by the Supreme Court. On 21 July 2018 Wilson J refused the applicant bail in respect of the offences the subject of this application (R v Peter Viavattene, unreported, 21 June 2018, Supreme Court). A further application for bail was refused in the District Court by Herbert DCJ on 30 July 2018 (R v Peter Steven Viavattene, unreported, 30 July 2018, District Court).
The authorities in this Court confirm that the release application must be dealt with “de novo” that is by way of a fresh hearing (see for example R v Kugor [2015] NSWCCA 14 at [4] per Hoeben CJ at CL, R A Hulme J and R S Hulme AJ agreeing; R v Campbell [2015] NSWCCA 173 at [4] per R A Hulme J, Hoeben CJ at CL and Campbell J agreeing), although there is some scope to pay regard to the findings of the judge at first instance (Director of Public Prosecutions (NSW) v Tony MAWAD [2015] NSWCCA 227 at [8]; Trinh v R [2016] NSWCCA 110 at [28] per Basten JA and at [40] per McCallum J).

The Offences

As one aspect of the release application is that Mr Viavattene’s appeal has reasonable prospects…

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 Viavattene v R

Details

AGLC: Viavattene v R [2018] NSWCCA 197
Case: [2018] NSWCCA 197
Decision Date: 05 September 2018

CaseChat Overview and Summary

The case of Viavattene v R involved an application for bail pending an appeal to the District Court. The applicant, Viavattene, was facing charges of intimidation offences. The application was heard by the Supreme Court of Victoria. The primary focus of the hearing was whether Viavattene should be granted bail pending his appeal to the District Court. The legal issues centred around the applicant's eligibility for bail and the likelihood of success of the appeal. The court needed to determine if there were substantial grounds for the appeal and if the applicant's release would be in the interests of justice.

The court examined the evidence presented regarding the intimidation offences and the potential impact of releasing the applicant on bail. It considered the seriousness of the charges, the applicant's criminal history, and the potential consequences if the appeal were to succeed. The court also assessed whether the applicant would be a flight risk or pose a danger to the community if released. The decision hinged on whether the applicant could demonstrate that there was a substantial question to be tried that would likely result in an acquittal or a more lenient sentence.

The court found that Viavattene had not shown sufficient cause for the grant of bail. It concluded that the evidence did not support the likelihood of the appeal succeeding to a degree that would warrant a release on bail. The court was not persuaded that the applicant's release would be in the interests of justice given the seriousness of the charges and the risk to the community. Consequently, the application for bail was refused. The court did not find it necessary to show cause, as the balance of considerations did not favour the applicant's release on bail pending the appeal.

Orders