Banditt v The Queen

[2005] HCATrans 987

[2005] HCATrans 987

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S216 of 2005

B e t w e e n -

STEPHEN GARRY BANDITT

Appellant

and

THE QUEEN

Respondent

Application for bail

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 DECEMBER 2005, AT 9.30 AM

Copyright in the High Court of Australia

MS A. FRANCIS:   May it please the Court, I appear on behalf of the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR:   Ms Francis, if we can just get some formalities straight, you are moving on a summons which was filed on 24 November?

MS FRANCIS:   That is correct, your Honour.

HIS HONOUR:   And you rely on an affidavit of Madeleine Schneider that was filed on 24 November?

MS FRANCIS:   Yes, your Honour.

HIS HONOUR:   And Narelle Jan McPherson filed on 29 November?

MS FRANCIS:   Yes, your Honour.

HIS HONOUR:   And the applicant filed on the same day?

MS FRANCIS:   Correct, your Honour.

HIS HONOUR:   I think you were going to replace the last page of your written submissions with a signed page.  If you do not have that here, it does not ‑ ‑ ‑

MS FRANCIS:   I understand that has happened.

HIS HONOUR:   Do you have any objection to that evidence, Mr Smith?

MR SMITH:   No, your Honour.

HIS HONOUR:   Do you have any evidence of your own?

MR SMITH:   No, your Honour.

HIS HONOUR:   I have read the written submissions.  Is there anything you want to add or highlight?

MS FRANCIS:   Maybe this, your Honour:  in the written submissions it was contended on behalf of the applicant that jurisdiction to grant bail in this Court arises from the inherent jurisdiction of the Court, and there is certainly authority for that proposition.  More recently in a decision of this

Court in United Mexican States v Cabal (2001) 209 CLR 165, the Chief Justice, with whom Justices Gummow and McHugh agreed, expressed the view that the power to grant bail arises as an incident to the appellate jurisdiction conferred on this Court by section 73 of the Constitution.

So far as either of those views are in issue or in contest, the applicant must demonstrate exceptional circumstances.  For the reasons which are outlined in the written submissions, it is contended that exceptional circumstances are established here.  To the extent that the Crown relies upon the proposition that the decision in Marotta is against the applicant, to the extent, as I understand the Crown’s submission, that in Marotta the principal basis for the grant of bail was that in that case the custodial portions of the relevant sentences would have expired by the time of determination of the appeal.  In fact, that was not correct and so much can be divined from the judgment of Justice Callinan at paragraph [18] at point 4. 

There were two applicants for bail in the case of Marotta and his Honour Justice Callinan concluded that possibly one of the sentences may have expired by the time of determination of the appeal, but certainly the non‑parole period in respect of the other applicant on the evidence that was before him would not have expired by the determination of the appeal.  So to the extent that the Crown relies upon Marotta as authority against the applicant, it is submitted that that is not correct.  Indeed, the applicant’s particulars upon which he relies in combination, it is submitted, reflect those factors which gave rise to a grant of bail in the case of Marotta.  Unless I can assist ‑ ‑ ‑

HIS HONOUR:   Thank you very much.  I need not trouble you, Mr Smith.

On 10 September 2003 the applicant was convicted of an offence against section 112(1) of the Crimes Act 1900 (NSW). On 18 September Judge Freeman imposed a sentence of imprisonment for five years with a non‑parole period of three years commencing on 10 September 2003. Hence, the applicant will be eligible for release on parole on 9 September 2006. On 4 August 2004 the New South Wales Court of Criminal Appeal dismissed an appeal against conviction. After a grant of special leave to appeal to this Court, an appeal was heard on 8 September 2005. Judgment was reserved.

On 10 November 2005 the Court of Criminal Appeal heard an application for bail.  That court declined to hear the application on the basis that the application should be made to this Court in the first instance.  In the present circumstances I agree with that approach.  On 24 November 2005 a summons was filed in this Court seeking bail.  It is supported by affidavits of Madeleine Schneider filed on 24 November 2005, of the applicant filed on 29 November 2005 and of Narelle Jan McPherson filed on 29 November 2005.  Ms McPherson is the applicant’s aunt.  The evidence establishes that if the applicant is granted bail, the applicant will live with his aunt and her husband. 

The authorities assembled by Justice McHugh in Muir v The Queen [2003] HCA 451 show that an applicant for bail in this Court must show exceptional circumstances. Two key factors are whether there are strong grounds for believing that a contemplated or pending appeal to this Court is likely to be successful and whether the sentence will have been served by the time that the appeal is dealt with. In this case there is no doubt that the appeal will have been dealt with well before 9 September 2006. It is invidious now to deal with the prospects of success beyond saying that even if it is assumed that they be real, I do not believe that they can be characterised as strong. No exceptional circumstance has been demonstrated.

The following matters have been relied on.  The fact that much of the sentence to be served before 9 September 2006 has by now been served is not an exceptional circumstance, nor is the fact that the applicant complied with bail conditions during the period from 6 October 2001 to 10 September 2003, nor is the fact that he has no relevant criminal history and is unlikely to abscond or offend while on bail.  All these matters are ordinary rather than extraordinary circumstances.  Accordingly, the application is dismissed.

The Court will adjourn.

AT 9.37 AM THE MATTER WAS CONCLUDED