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- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Re IKR  QSC 116
Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:
2 April 2020
2 April 2020
CRIMINAL LAW – PROCEDURE – BAIL – AFTER CONVICTION – GENERALLY – Where the applicant was convicted after a trial of entering a dwelling with intent to cause violence whilst armed, grievous bodily harm and robbery whilst armed (all of which were domestic violence offences) – where the applicant was sentenced, in respect of the three counts, to imprisonment for three years and two months, two and a-half years and one year (to be served concurrently) – where the period of imprisonment was ordered to be suspended after 18 months, with an operational period of five years – where on 8 November 2019, the applicant filed a notice of appeal, indicating an appeal against both conviction and sentence – where on 27 March 2020 the applicant also lodged a further appeal in relation to a determination by a District Court Judge refusing an application on 17 March 2020 for an investigation into the potential bias of the jury pursuant to section 70(7) of the Jury Act 1995 (Qld) – where the applicant applied for bail pending the hearing of both matters in the court of appeal – whether the sentence imposed is likely to have been substantially served before the appeal is determined – whether the applicant has demonstrated exceptional circumstances
Ex parte Maher  1 Qd R 303, cited
Knight v R  1 Qd R 329, cited
C Wilson for the applicant
N Needham for the respondent
Rostron Carlyle Rojas Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent
HER HONOUR (delivered ex tempore): This is an application for bail. On the 17th of October 2019, he was convicted after a trial in the District Court at Goondiwindi. He was convicted in relation to three counts: entering a dwelling with intent to cause violence whilst armed; count 2, grievous bodily harm; and count 4, which was robbery whilst armed. All were domestic violence offences. In relation to count 2, he was sentenced to three years and two months, on count 1 he was sentenced to two and a-half years, and on count 4 he was sentenced to 12 months, all to be served concurrently. The period of imprisonment was ordered to be suspended after 18 months, with an operational period of five years. Accordingly, given that 16 days of pre-sentence custody were declared, he would be expected to be released in a year’s time, on the 31st of March 2021.
On 8 November 2019, the applicant filed a notice of appeal, indicating an appeal against both conviction and sentence. That was on the basis that the verdict was unreasonable and could not be supported by the evidence. On the 27th of March, the applicant also lodged a further appeal in relation to a determination by a District Court Judge refusing an application on the 17th of March for an investigation into the potential bias of the jury pursuant to section 70(7) of the Jury Act 1995 (Qld). There are two matters before the Court of Appeal.
On the material before me there is no current listing in the Court of Appeal, and the material indicates that, in fact, there would be two different hearings before the Court of Appeal. In particular, it would seem that the refusal of the application pursuant to section 70(7) would be heard first. As I understand it, the transcript of the ex tempore reasons of Judge Farr refusing the application have not as yet been obtained. There is no doubt that that they can be obtained in the near future. The information indicates that, at the present time, the earliest available date is the 2nd of June 2020. However, it would seem that that could be expedited, given that there are a number of matters which have been delisted in the Court of Appeal. So, in terms of the current application for bail, it is clear that the application is for bail pending the appeal.
Now, the factual background does not need to be gone into to any great extent. All of the offences were committed against the applicant’s ex-partner, and the material before me sets out the circumstances of those offences. I have the transcript of the trial and the transcript of the sentencing hearing. The current position is that the applicant seeks bail after conviction by a jury on the basis that there are exceptional circumstances. In particular, in this case, it is argued that there is very real concern that, given the need for the two-step appeal process in the Court of Appeal, a significant period of time would elapse before those matters could be determined, and there is a very real issue, given the short sentence, that a substantial period of that sentence would be served before the appeal could be determined.
In particular, in relation to this preliminary issue in relation to the appeal against the refusal of the application pursuant to section 70(7), it is argued that, on the basis of Knight v R, all that is required is to establish that there is a suspicion for the investigation to be conducted and that, as such, it would seem the argument is that the preliminary appeal would be successful, and that would then require an investigation, which, in the current circumstances, would take some considerable period of time. That would then have to be determined before the appeal proper could proceed, as such, before the Court of Appeal. So it is essentially an argument that the applicant is in very real danger of serving an unacceptable portion of his sentence before his appeal can be heard. In particular, Mr Wilston, for the applicant, argues that, given he was convicted in October and it is now April, the time that has already passed means that he is currently in danger of serving an unacceptable portion of his sentence before the appeal can be heard.
Turning to the test which I am required to apply, the test, following conviction by a jury, for a bail application to be successful was set out in Ex parte Maher. That test has been consistently applied. The discretion is one that is not exercised lightly in the absence of exceptional circumstances. That is clearly because of the principles that are discussed in all of the cases. It is because it makes the conviction appear contingent until confirmed, and it places the Court in the position of returning to prison a person whose circumstances may have changed during the period that he has been at liberty on bail, and it also encourages unmeritorious appeals. Furthermore, it undermines respect for the judicial system by having a recently sentenced person walk free, and also the importance of having a person convicted serve a sentence as soon as practicable.
Having considered the material in this case, it would seem clear that the applicant has set out in his affidavit the reason for his submission of potential bias of the jury. That material was considered by the District Court Judge. From the material before me, the jury empanelment, it would seem, involved a process whereby there were the full number of challenges by the applicant’s counsel during the jury selection process. The instructions in relation to bringing an unbiased mind to a consideration of the charges were given to the jury panel before the defendant was placed in the charge of the jury and that they were clearly informed that if they had any basis for not being able to bring an unbiased mind to a consideration of the charges, they should seek to be excused. The trial proceeded after those instructions were given.
As counsel for the Crown has pointed out, the decision in Knight makes it very clear that, having regard to the role of juries as triers of fact in criminal trials, the law has always treated jury verdicts and the ability of juries to reach their verdicts faithfully following a trial Judge’s directions with respect and it cannot be supposed that section 70(7) contemplated a launching of an investigation without good cause. An investigation under section 70(7) is not lightly embarked upon, although I accept all that is required is a suspicion.
As I have indicated, I have considered the affidavit material. In all of the circumstances, on the material before me, I am not satisfied that there is, at this point in time, the existence of exceptional circumstances. The preliminary issue can be determined promptly. There is not a large body of material that needs to be put together. The transcript will be shortly available. The arguments put to the District Court Judge would similarly be argued before the Court of Appeal, and in a matter such as this the Court of Appeal would make an expeditious determination of that preliminary point.
At this point in time, the applicant has not established exceptional circumstances. Such circumstances may well exist, should the appeal to the Court of Appeal be successful, but in the circumstances of this case, as the evidence currently stands, I am not satisfied that the applicant has made out a basis for bail pending the hearing of that appeal, given the jury’s determination on the 17th of October 2019.
- Published Case Name:
- Shortened Case Name:
 QSC 116
02 Apr 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC3/19 (No citation)||17 Oct 2019||Date of conviction of certain domestic violence offences following trial before Barlow QC DCJ and a jury.|
|Primary Judgment||DC365/20 (No citation)||17 Mar 2020||Application pursuant to JA s 70(7) for investigation of suspected bias of five jurors refused: Farr SC DCJ.|
|Primary Judgment|| QSC 116||02 Apr 2020||Application for bail pending appeal refused: Lyons SJA.|
|Appeal Determined (QCA)|| QCA 249||13 Nov 2020||Appeal against convictions dismissed; appeal against DC365/20 dismissed; evidence insufficient to give rise to suspicion that jurors may have been guilty of bias: Morrison and McMurdo JJA and Jackson J (per Morrison and McMurdo JJA, Jackson J not deciding, that ‘bias’ in s 70(7) means actual bias).|