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- Unreported Judgment
De Waal v Commissioner of Police QDC 26
DISTRICT COURT OF QUEENSLAND
De Waal v Commissioner of Police  QDC 26
ALEX DE WAAL
THE COMMISSIONER OF POLICE
Application for bail pending appeal
Magistrates Court, Brisbane
Decision given ex tempore 18 February 2016
Reasons published 22 February 2016
18 February 2016
Judge Terry Martin SC
The application is granted.
Considerations for granting bail pending appeal – previous bail application – whether change in circumstance needs to be shown – observations in relation to the absence of a transcript of the proceeding below
Bail Act 1980
Penalties and Sentences Act 1992.
Commissioner of Police v Shayne MacDonald  QDC 157.
Ex parte Edwards  1 Qd R 139.
Hanson v DPP (Qld)  QCA 409.
Scrivener v DPP (2001) 125 A Crim R 279.
T Zwoerner for the Applicant
B Jackson for the Respondent
Legal Aid Queensland for the Applicant
Office of the Director of Public Prosecutions for the Respondent
- This is an application for bail pending appeal. I granted the application ex tempore 18 February 2016. I now publish my reasons.
- On 8 February 2016, the applicant pleaded guilty in the Magistrates Court Brisbane to one charge of assault occasioning bodily harm committed on 7 November 2015. He was sentenced to six months imprisonment with a parole release date fixed at 7 April 2016. He was also ordered to pay $1,000 compensation to be paid within 12 months.
- It seems that the facts relied upon at sentence are those contained in the QP9 document:
“At approximately 3.15am on Saturday 7 November 2015 the defendant and two associates were travelling in a vehicle, westbound on Constance Street, Fortitude Valley.
The victim has walked onto the road of Constance Street and obstructed the path of the vehicle in which the defendant was a passenger. The vehicle has come to a stop and one of the defendant’s associates has exited the vehicle and began yelling at the victim. The victim has immediately moved off the road. The defendant’s associate continued to yell at the victim whilst walking towards him. The victim at this time was focusing his attention on this male and did not see the defendant also exit the vehicle. The defendant has then approached the victim from side on and thrown a single punch. This punch landed on the side of the victim’s face. As a result of this punch the victim has immediately collapsed to the ground in an unconscious state.
The defendant and his associate immediately re-entered the vehicle and fled the scene.
At approximately 3.30am Police arrived on scene and took up with several witnesses and further viewed CCTV footage of the incident.
Police obtained the Queensland registration number of the vehicle in which the defendant and associate fled the scene in. Police obtained multiple witness versions and positively identified the victim’s attacker as Alex Robert William De Waal 09/03/1992, the defendant in this matter.
Police contacted the defendant who refused to participate in an electronic record of interview in relation to this matter.
The defendant was subsequently issued a notice to appear in the Brisbane Magistrates Court in relation to this matter.
As a result of the attack the victim suffered a loss of consciousness, headaches and a swollen ear. The pain to the victim’s ear and head lasted for several days after the attack.”
- It is common ground that a grant of bail pending appeal will be made only in exceptional circumstances and, generally speaking, it is necessary for an applicant to show strong grounds for concluding that the appeal would be allowed, and, that the applicant will have served an unacceptable portion of the sentence before the appeal can be heard.
- The respondent concedes that the applicant will have served most of the period of actual imprisonment before the appeal can be heard.
- The applicant brought a similar application for bail in the Magistrates Court pursuant to s 8(1)(a)(ia) of the Bail Act 1980 (“the Act”). That application was refused on 10 February 2016.
- Both Mr Zwoerner, on behalf of the applicant, and Mr Jackson, on behalf of the respondent, submitted that this application was not an appeal from the decision refusing bail on 10 February 2016, and that the applicant was entitled to bring this application anew before this Court.
- In my view, these submissions are correct. However, the question then arose whether the applicant needed to show a material change in circumstance between the refusal for bail on 10 February 2016 and the hearing of the application in this Court.
- The relevant line of authority dealing with a need to show a material change in circumstance for successive applications for bail included such decisions as that in Ex parte Edwards  1 Qd R 139 and Scrivener v DPP (2001) 125 A Crim R 279.
- However, that line of authority related to successive applications for bail whilst the applicants were on remand, requiring the Courts’ assessment, pursuant to s 16 of the Act, whether there were unacceptable risks if an applicant were released on bail.
- On this application, Mr Jackson very properly submitted that such assessment is not here relevant and that the decision in the Magistrates Court refusing bail on 10 February 2016 would not have involved such an assessment. Rather, it was submitted, the decision on 10 February 2016 reflected the Magistrate’s assessment whether there were strong grounds for concluding that the appeal will be allowed.
- In the circumstances, this application was determined by my assessment whether there are strong grounds for concluding that the appeal will be allowed.
- In sentencing the applicant, a Court must have regard primarily to the matters set out in s 9(3)(a) to (k) of the Penalties and Sentences Act 1992.
- The applicant fell to be sentenced having regard primarily to these known matters:
- It was a cowardly assault resulting in the complainant losing consciousness but it involved a single punch. Fortunately, no significant injury otherwise was suffered by the complainant. See (d) and (e).
- The applicant pleaded guilty, demonstrating, prima facie, remorse. See (i).
- The applicant was 23 years of age (born 9 March 1992) with no criminal history. He was unemployed at the time of sentence but was to start employment the following week. See (h).
- Given his history, there is no suggestion that the public is at any significant risk, warranting actual incarceration, as opposed to the deterrent impact of a sentence of imprisonment without actual custody. See (a), (b), (f) and (g).
- General deterrence. See (k).
- Having weighed the relevant matters, there are strong grounds for concluding that the appeal will be allowed in respect of the order for actual incarceration.
- The conclusion that there are strong grounds for allowing the appeal is fortified in light of the combination of sentencing orders. The Magistrate also made an order for compensation in the sum of $1,000. The applicant was unemployed at the time of sentence (suggesting few resources) and, as a result of the sentence of imprisonment, it likely his imminent employment was lost. Whilst 12 months to pay the compensation was allowed, after incarceration, the applicant would have had 10 months in which to both find employment and raise the compensation. In light of the stigma of a sentence of imprisonment involving actual custody, finding employment may not be easy.
- Whether or not the appeal, once fully litigated, will be allowed, will be known in due course. I do not gainsay the decision.
- I wish to make some observations in relation to the applicant’s submission, that, given the difficulties in assessing the strength of an applicant’s case in the absence of a transcript of the proceedings below, on an application for bail pending appeal, the consideration that an applicant may be required to serve an unacceptable portion of his sentence before the appeal could be heard, is likely to be of much greater significance than a consideration of grounds for concluding the appeal will be allowed.
- As I recall, prior to the introduction of audio recording in the Magistrates Court, there was no transcript of sentence proceedings, on a plea of guilty, in that Court. On an application for bail pending appeal, and, indeed, on appeal, the relevant evidence was placed before the Court by affidavit setting out the submissions of the parties and the Magistrate’s remarks. The Court file would also reveal notes reflective of the Magistrate’s remarks. The contents of an affidavit were ordinarily agreed between the parties.
- Now, there is Court FM which is available, for a fee, to all practitioners. Audio of proceedings is uploaded daily at approximately 12:15pm, 2:15pm and 5:15pm. I can see no reason why, on an application for bail pending appeal, an affidavit setting out the submissions and remarks of the proceedings below cannot be provided to the Court. The author of the affidavit would have the advantage of refreshing his/her memory by listening to the proceedings on Court FM, making the evidence acceptably reliable for the purpose of such an application.
- In my view, in future, generally speaking, the absence of a timely transcript is no reason for delay in bringing an application for bail pending appeal, and, nor is it a reason for arguing that the Court is substantially impeded in assessing the strength of the applicant’s prospects on appeal. Of course, the transcript of the proceedings below would be available for the appeal.
- Published Case Name:
De Waal v Commissioner of Police
- Shortened Case Name:
De Waal v Commissioner of Police
 QDC 26
Judge Terry Martin SC
22 Feb 2016