Watson v The Queen

[2020] ACTCA 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Watson v The Queen

Citation:

[2020] ACTCA 16

Hearing Date:

1 April 2020

DecisionDate:

1 April 2020

Before:

Elkaim J

Decision:

The application for bail is granted. The application for a stay of the sentence is allowed. The application for a stay of the conviction is refused.

Catchwords:

APPLICATION – PRACTICE AND PROCEDURE – Application for bail – exceptional circumstances – application for stay of conviction and sentence pending appeal – manifest excess – alleged error of law – consideration of delay – prospects of success    

Legislation Cited:

Bail Act 1992 (ACT) s 9E
Criminal Code 2002 (ACT) ss 326, 347

Parties:

Andrew Gregory Watson (Applicant)

The Queen (Respondent)

Representation:

Counsel

J Masters (Applicant)

S Saikal-Skea (Respondent)

Solicitors

Marjason and Marjason Solicitors (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 5 of 2020

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Burns J

Date of Decision:          28 January 2020

Case Title:  R v Watson

Court File Number:      SCC 161 of 2018

ELKAIM J:

1. Earlier today, following a short hearing, I granted the applicant bail on conditions. These are my reasons.

1. On 26 September 2019 the applicant entered pleas of guilty to four counts of using a false document and four counts of obtaining property by deception contrary to the Criminal Code 2002 (ACT) (ss 347 and 326 respectively).

1. The pleas were entered on the second day of the applicant’s trial before Burns J and a jury. This was actually the applicant’s second trial, the first having been aborted after Burns J brought certain defects in the indictment to the attention of the Crown.

1. The applicant was sentenced by Burns J on 28 January 2020. He received a total term of imprisonment of 3 years and 2 months. This sentence is to be suspended after the applicant serves 12 months, provided he enters into a Good Behaviour Order for 2 years and 3 months. The first 12 months will expire on 27 January 2021.

1. The applicant has filed an appeal against both conviction and sentence. There is an apparent inconsistency between a guilty plea and an appeal against conviction. However, the conviction appeal arises from rulings made by Burns J on a voir dire. As a result, according to the applicant, he was denied the opportunity to run certain defences. Again, according to the applicant, these voir dire rulings left him no choice but to enter pleas of guilty.

1. The appeal against sentence makes some specific complaints and also an overall allegation that the sentences are manifestly excessive.

1. On 16 March 2020 the applicant filed an Application in Proceeding requesting that the conviction and sentence imposed by Burns J be stayed until his appeal has been heard and decided and, secondly, that he be granted bail pending the appeal. The application was opposed. The request for the conviction to be stayed was abandoned during the hearing.

1. The application was supported, at least as far as the bail aspect is concerned, by an affidavit of the applicant’s wife, Ms Natalie Watson, affirmed on 12 March 2020. In short, Ms Watson says that she and the applicant have 2 children, now aged 8 and 13 respectively, that she is unwell due to a mini-stroke she suffered on 30 December 2019 and she is having considerable difficulty caring for her children both at a practical level and a financial level.

1. Ms Watson was cross-examined over the telephone on her affidavit. She essentially said that her medical condition is being monitored, but she is able to drive and perform some aspects of her work. She said that if she suffers any further neurological attacks she would need to travel by ambulance. She said that her children are carrying on their schooling from home.

1. Ms Watson agreed that she and the applicant had separated some time ago but she said that arrangements had been made for her husband to live at her residence. This would facilitate his capacity to care for the children.

1. The application for bail falls under s 9E of the Bail Act 1992 (ACT). Under this section the applicant must establish exceptional circumstances as a threshold condition. The exceptional circumstances here are said to be the matters contained in Ms Watson’s affidavit.

1. I think the matters described in the affidavit probably do amount to exceptional circumstances. However, there is another element which elevates the probability to a certainty. The impact of the coronavirus on parents with young children is that greater demands for care at home are required. Children aged 8 and 13 no doubt require fairly constant amounts of attention. Ms Watson’s health condition restricts her in providing this degree of attention.

1. It is also necessary in considering the application to examine the grounds of appeal (now contained in an Amended Notice of Appeal dated 2 March 2020). Some of the grounds appear hopeless. For example, the fact that the respondent was allowed to “recommend that only a full-time period of imprisonment was appropriate” is unlikely to succeed because it is divorced from any suggestion that his Honour acted on the recommendation. In any event a recommendation does not of itself dictate a result.

1. The appeal against a conviction is difficult for me to assess. At first sight the arguments seem to be of little weight; however, I cannot say they are hopeless. The Crown submitted that there is little prospect of success in the conviction appeal. However, the Crown, fairly, conceded that there are prospects of success on the sentence appeal.

1. The applicant submitted that by the time the appeal is heard a good deal of his term of full-time imprisonment may have been completed.

1. The Crown pointed out however that the appeal is due to be heard in the Court of Appeal sittings commencing on 4 May 2020. On that basis a significant part of the sentence would not have been served by this time. This point, of course, depends on the Court of Appeal giving a prompt decision. I cannot predict the length of time during which the decision will be reserved.

1. There is no suggestion that the applicant is a flight risk or that he is likely to commit further offences while on bail. Because of the exceptional circumstances I have outlined above I think bail should be granted on appropriate conditions.

1. Bail was granted on the following conditions:

(a)That upon release from the AMC he is to travel with his parents to [redacted] where he is to be taken by [redacted] directly to [redacted].

(b)He is to reside at [redacted].

(c)He is to appear for his appeal hearing at the ACT Supreme Court.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 1 April 2020