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Supreme Court of Victoria - Court of Appeal |
Last Updated: 11 April 2017
COURT OF APPEAL
S APCR 2016 0052
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Applicant
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v
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Respondent
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF ORDERS:
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5 April 2017
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DATE OF REASONS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Bail pending appeal –Proposed grounds of appeal arguable – Applicant’s wife gravely ill and in desperate need of applicant’s continual care – Exceptional circumstances demonstrated – Bail granted.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr M G O’Connell SC
With Mr G W Casement |
Stary Norton Halphen
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For the Crown
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Mr J Gullaci
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Mr J Cain, Solicitor for Public Prosecutions
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WEINBERG JA:
1 On 5 October 2015, the applicant, now aged 68, was convicted after a trial in the County Court of one charge of incest. The victim was his natural granddaughter, then aged nine. The jury returned verdicts of not guilty in respect of one other charge of incest, and two charges of an indecent act in the presence of a child.
2 For reasons that do not presently matter, he was not finally sentenced for this offence until the morning of 5 April 2017. He was then sentenced to a term of four years and nine months’ imprisonment, with a non-parole period of three years.
3 That same afternoon, I heard an application for bail pending appeal against conviction. The application was opposed though, it is fair to say, by no means strenuously. I granted bail and said that I would provide reasons in due course. These are those reasons.
Proposed grounds of appeal
4 There are, at this stage, three proposed grounds of appeal. A fourth has been foreshadowed. There may also be a challenge to the sentence imposed.
5 Unusually, in a case of this kind, the applicant had prepared, in advance of sentence, a most detailed and comprehensive written case in support of the grant of leave to appeal against conviction. Indeed, the written case is more detailed than any I have previously seen. Clearly, a great deal of thought and care has gone into its preparation.
6 In broad terms, the written case identifies three proposed grounds of appeal:
1. The verdict is unsafe or unsatisfactory.
2. The trial judge erred in permitting evidence to be led of a zip lock bag containing items said to be prejudicial.
3. The trial judge erred in permitting evidence to be led of a complaint made by the complainant to her father.
7 It is sufficient for present purposes to say that the Crown accepted that ground one is arguable, although it submitted that the ground is unlikely ultimately to succeed. The Crown did not contend that either of the two remaining grounds was not arguable.
8 As regards the foreshadowed fourth ground, not yet drafted, it relates to the process of empanelment that the judge adopted. However, it requires access to the DVD recording of that process before it can be determined whether it will be pursued. Once again, the Crown did not contend that any such ground would not be arguable.
9 On behalf of the applicant it was submitted that ground one was not merely arguable, but that it had realistic prospects of success. It was noted that the jury had acquitted the applicant of three charges that were based upon the complainant’s allegations, indicating that they had difficulty in accepting her as a wholly credible witness.
10 In addition, it was submitted that the complainant’s evidence regarding the alleged act of incest was internally inconsistent, and inherently improbable. It was noted that she had, on more than one occasion, made and then swiftly retracted her various complaints. It was submitted that she had been pressured into making these complaints by her father, who bore considerable and long-standing animus towards the applicant.
11 None of this would have been of great consequence, so far as the application for bail was concerned, had it not been for one particular fact. The applicant’s wife of more than 40 years is now in the last stages of cancer. The disease, which began as ovarian cancer, has spread throughout her body. The medical evidence is clear and unequivocal. She has, at best, a very short time to live, perhaps only weeks, perhaps a month or two.
12 Moreover, the applicant’s wife is totally dependent upon him for all her needs. She is now receiving only palliative care, and is in constant and extreme pain. She requires numerous injections of powerful pain-killing drugs, which the applicant alone administers. He also assists her in her personal care in ways that involve intimate and close attention. She weighs only 30 kilograms, and simply cannot function at all without him. Although there is some limited family support available, he is effectively indispensable to her needs.
13 The applicant sought bail primarily so that he could continue to look after his wife, and to be close at hand at her death. In that sense, it can fairly be said that the circumstances surrounding this application are exceptional.
14 The Crown accepted that the medical evidence upon which the applicant relied could not be controverted. It also accepted that the applicant was, and is, suffering from significant depression, and a range of other psychological problems. These are associated not just with his wife’s condition, but not unnaturally also with his impending incarceration.
15 The Crown further accepted that the applicant poses no risk of reoffending. Nor is he likely to interfere with witnesses, or fail to meet his bail if he is permitted to remain at liberty until the hearing of his application for leave to appeal against conviction. He has no prior convictions. Apart from this one matter, he seems to have been of good character throughout his life.
16 The principles governing bail pending appeal are clear. Such bail should not be granted save in exceptional, or possibly ‘truly’ exceptional circumstances.[2]
17 Senior counsel for the applicant drew my attention to R v Encheff, a decision of Gray J of the Supreme Court of South Australia.[3] In that case, it was held that the applicant’s wife’s terminal illness, in circumstances where she had very short life expectancy, constituted ‘exceptional circumstances’ for the purpose of the grant of bail on a charge of murder.
18 The applicant submitted that, by broad analogy, a similar approach should be taken to the requirement of ‘exceptional circumstances’ for the grant of bail pending appeal. I regard that submission as cogent.
19 Perhaps as importantly, in my opinion, this application for bail called for compassion, and due regard to basic principles of human decency. Notwithstanding the gravity of the offending, as reflected in the verdict of the jury, and all the warnings given by various courts against treating that verdict as having a ‘provisional’ character, this was a case that warranted very special, and unusual, treatment.
20 I should add that I took steps to arrange for the application for leave to appeal to be heard at the earliest practicable opportunity. The matter is now listed for hearing on 19 May 2017. Accordingly, the period of bail will not be of inordinate length.
21 Finally, I should say that I am in no way critical of the trial judge for having proceeded to pass sentence upon the applicant. His Honour had, on a number of occasions, deferred passing sentence in order to enable the applicant to remain at liberty so that he could continue to care for his wife.
22 In the end, however, as some 18 months had elapsed from the date of conviction, without sentence having been imposed, the matter had to be brought to a head. His Honour was told that there would be an immediate application to this Court for bail pending appeal, and no doubt gave that matter due consideration.
23 I would also wish to commend the Crown for having discharged its duty to the Court with conspicuous fairness. It was entirely appropriate that it should, at least formally oppose bail. However, as I have previously indicated, that opposition was expressed in proper, and entirely humane, terms.
[2] Re Zoudi [2006] VSCA 298.
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URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2017/83.html