[2019] QCA 290

COURT OF APPEAL

SOFRONOFF P
FRASER JA
MORRISON JA

Appeal No 13426 of 2019
SC No 11628 of 2019

KYNAN IGNACIO VITAL	Appellant

v

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)	Respondent

BRISBANE

FRIDAY, 6 DECEMBER 2019

JUDGMENT

SOFRONOFF P:  The appellant has been charged with murder, assault occasioning bodily harm while armed and in company, burglary at night, common assault and robbery with personal violence as a domestic violence offence.  He is a 19 year old man with no previous criminal history.  He is currently in custody while on remand.  On 12 November 2019 he applied for bail.  Justice Davis refused that application and this appeal was brought against that refusal.
The case against him is that he had been in an abusive relationship with the daughter of a man he has been charged with having murdered.  In this judgment, I will refer to her by the pseudonym Jane.  The prosecution alleges that he would push Jane around and throw things at her.  He looked into her mobile phone and would then send abusive messages to her friends.
On the night of 18 October 2019, the appellant slept at Jane’s home and on the next morning she told him that the relationship was over.  That night Jane went to a party to celebrate her father’s birthday.  When she came home, she found the appellant in her bedroom.  Apparently she was happy to see him, but her flatmate was not happy and asked him to leave.  He went outside and began to make a nuisance of himself.
The flatmate called Jane’s father, who arrived in company with another man.  Seeing them, the appellant left in his car with a companion, McPherson.  The father and his companion followed them.  The appellant took steps to shake them off but did not succeed.  The appellant stopped his car at the side of the road.  McPherson got out of the car and took out a pistol which he pointed at the pursuers’ car.  There is no allegation that the appellant knew that McPherson was carrying a pistol.  Jane’s father and his companion got out of their car.  The father challenged McPherson to shoot.  His companion approached the appellant, still seated in his car, and began to throw punches through the window.  The appellant put his feet out of the window to kick back.
While that fight was proceeding, McPherson hit Jane’s father with his pistol and knocked him unconscious.  That was the blow that killed him.  The other men then fought each other.  The appellant used a baseball bat.  The appellant and McPherson drove off.  The appellant returned to Jane’s house and entered it.  He punched her face two or three times.  He stole her phone and took off.
By virtue of s 16(3) of the Bail Act 1980 (Qld), the appellant had to show cause why he should be released on bail.  The appellant acknowledges that in coming to his decision, Justice Davis made no identifiable error of fact or law.  It is, therefore, unnecessary to examine his Honour’s brief ex tempore judgment in any detail.
The appellant submits instead that his Honour must not have given the appellant’s youth, his lack of criminal history and, as the appellant asserts, the weakness of the Crown case against him, the weight that these matters deserved.  It bears repeating that, in an appeal against a discretionary decision, it is not a valid ground of appeal to contend that the judge did not give sufficient weight to a relevant factor, or gave too much weight to a factor.  Weight is a matter for the decision-maker alone.
However, the appellant’s case is not limited to that untenable contention.  He submits that it should be inferred that Justice Davis made an error, and in oral argument, he has also submitted, that Justice Davis must have overlooked the extraordinary delay of about 18 months until there can be a trial in this matter.
A submission about an inferred error in a discretionary judgment, constituted by refusal to grant bail, is a very hard case to make upon appeal.  In Sica v Director of Public Prosecutions (Qld) [2011] 2 Qd R 254, Justice Chesterman said:
“The character of the assessment required under s 16 [of the Bail Act], coupled with its discretionary nature, makes the judgment particularly unsusceptible to the appellate process.  The scope for demonstrating error of the kind required by House is necessarily limited.  The discretion has to be exercised within very broad parameters.”
The murder case against the appellant, as it presently appears, is not strong.  However, the charge is one of murder.  And that charge is accompanied by the charges that arise out of the appellant’s actions against Jane when he returned to her house.  His behaviour towards her, both before and after the death of her father, are very significant matters in this application for bail.  The appellant’s obsessive behaviour towards Jane, which persisted after her father had been fatally assaulted is very disturbing and is relevant to the assessment of the risk presented by the appellant should he be released on bail.  Justice Davis was evidently moved by this aspect of the case because he referred to the character of the appellant’s actions as erratic and violent.
As to Mr Edwards’ submission that Justice Davis must have overlooked the delay until committal and the delay until trial, that is a submission that cannot be accepted.  Mr Edwards’ submissions below pointed out as a matter of fact that a delay of that order was to be expected, and the DPP did not challenge that submission.  Indeed, that delay can be seen as the very foundation for the application for bail.
In an application for bail, the appellant’s actions after he returned to Jane’s house could, on their own, justify a refusal of bail.  When they are taken into account in a case in which the applicant is also awaiting trial for murder, refusal of bail can hardly be regarded as so unreasonable that an error of some kind in the judge’s reasoning has to be inferred.  Yet that is what the appellant must show in order to persuade this Court to disturb the decision of Justice Davis.  In my view, he has failed to do so, and the appeal should be dismissed.
FRASER JA:  I agree.
MORRISON JA:  I also agree.
SOFRONOFF P:  The appeal is dismissed.