Yeboah v The Queen - [2022] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Yeboah v The Queen
Citation:	[2022] ACTCA 37
Hearing Date(s):	14 July 2022
DecisionDate:	14 July 2022
Before:	Elkaim J
Decision:	(i) The application for bail is refused. (ii) The application in respect of fresh evidence is adjourned to the hearing before the Court of Appeal.
Catchwords:	APPEAL – APPLICATION – where applicant seeks bail pending Court of Appeal hearing – where appeal application has no marked degree of strength
Legislation Cited:	Corrections Management Act 2007 (ACT) s 53
Cases Cited:	Achanfuo-Yeboah v The Queen [2016] ACTCA 71 Achanfuo-Yeboah v The Queen (No 2) [2017] ACTCA 11 R v Yeboah [2022] ACTSC 127 Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 Warne v The Queen [2022] ACTCA 35
Parties:	David Achanfuo Yeboah ( Appellant) The Queen ( Respondent)
Representation:	Counsel Self-represented ( Appellant) K McCann ( Respondent)
Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 31 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court Before: Kennett J Date of Decision: 1 June 2022 Case Title: R v Yeboah Citation: [2022] ACTSC 127 Court File Number(s): SCC 296, 297 of 2020

Elkaim J:

Mr Yeboah has filed an application for bail pending the hearing of his appeal. There is no separate affidavit supporting the application but the relevant form has been filled in by Mr Yeboah and indicates the reasons behind the application. I assume, as is required for appeal bail, that the applicant also seeks a stay of the sentence pending the appeal.

By way of background, the applicant was sentenced by Kennett J on 1 June 2022 to a term of imprisonment of two years and five months with a non-parole period of 15 months (R v Yeboah [2022] ACTSC 127).

The applicant had pleaded guilty to two offences, trafficking in a controlled drug other than cannabis and dealing with the proceeds of crime. For the former offence the sentence was imprisonment for two years and four months commencing on 30 May 2022. For the second offence, the sentence was imprisonment for two months, but overlapping with the first sentence by one month.

The applicant has appealed against his sentence. He is currently self-represented.

The applicant has a significant criminal record. This includes being sentenced to a term of imprisonment of three years and five months on 25 May 2016. Following his sentencing he applied for bail. The application was decided by Refshauge J in December 2016 (Achanfuo-Yeboah v The Queen [2016] ACTCA 71). Bail was granted, initially for a fixed period, but then extended in a later decision on 5 April 2017 (Achanfuo-Yeboah v The Queen (No 2) [2017] ACTCA 11).

The application for bail before Refshauge J had been made on a number of bases, including some having similarities to the application before me. These included obtaining legal representation, hardship to the applicant’s family and dealing with his medical…

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 Yeboah v The Queen

Details

AGLC: Yeboah v The Queen [2022] ACTCA 37
Case: [2022] ACTCA 37
Decision Date: 14 July 2022

CaseChat Overview and Summary

In the matter of *Yeboah v The Queen*, the applicant, Yeboah, sought bail pending the determination of an appeal to the Court of Appeal. The application was heard by Elkaim J.

The primary legal issue before the court was whether the applicant should be granted bail. This involved an assessment of the strength of the applicant's proposed appeal and whether exceptional circumstances warranted the grant of bail. A secondary issue concerned an application in respect of fresh evidence.

Elkaim J refused the application for bail, finding that the appeal application did not possess a marked degree of strength. The application concerning fresh evidence was adjourned to be heard by the Court of Appeal.

Orders

Orders of the court

(i) The application for bail is refused.

(ii) The application in respect of fresh evidence is adjourned to the hearing before the Court of Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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