Beljajev v Director of Public Prosecutions

[1991] HCA 16

HIGH COURT OF AUSTRALIA

Brennan J.

BELJAJEV v. DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER

(1991) 173 CLR 28

6 May 1991

High Court—Practice—Bail—Person charged with crime in State court—Grant of bail pending trial—Appeal by Crown to Supreme Court—Recommittal to prison—Application for special leave to appeal to High Court—Application for stay—Bail pending application—Jurisdiction—Exceptional circumstances.

Decision

BRENNAN J. An indictment was presented before the County Court in Victoria on 13 July 1990 charging the applicant with conspiracy to import prohibited imports contrary to s. 233B(1)(cb) of the Customs Act 1901 (Cth) on five counts; conspiracy to traffic in a drug of dependence contrary to s. 79 of the Drugs Poison and Controlled Substances Act 1981 (Vict.) on one count; and trafficking in a drug of dependence contrary to s. 71(1) of that Act on seven counts. No plea was then, or has since, been taken to this indictment.

2. The trial judge, Judge Kelly, has entertained a number of applications with respect to the preparation for and conduct of the trial, including two applications for bail. On 20 September 1990 his Honour refused the first application for bail but, after an eight day hearing of the second application, his Honour granted bail on 11 April 1991.

3. His Honour was satisfied that exceptional circumstances existed which justified the grant of bail. That is the condition governing the power of the court to grant bail, when an accused is charged with offences of the kind appearing in the present indictment: see s. 4(2)(aa) of the Bail Act 1977 (Vict.).

4. Pursuant to s. 18A of the Bail Act the Director of Public Prosecutions for the Commonwealth and the Director of Public Prosecutions for Victoria then appealed to the Supreme Court. Marks J. allowed the appeal and ordered that the applicant, who had been released on bail pursuant to Judge Kelly's order, should again be committed to prison to await his trial.

5. The applicant filed an application for special leave to appeal to this Court on 2 May 1991 and the present application seeks an order that the order of Marks J. be stayed pending the hearing by this Court of the application for special leave to appeal. Alternatively, bail is sought pending a hearing of the application for special leave.

6. The jurisdiction of this Court to make an order either preserving the status quo pending the hearing of an application for special leave to appeal or to grant bail pending the hearing of such an application has been considered in several cases. In Chamberlain v. The Queen (No. 1) (1983) 153 CLR 514 at p 518, I expressed the opinion that: "the power of this Court to grant bail rests upon the inherent
power to preserve from futility the exercise of the Court's jurisdiction to grant special leave to appeal and to allow an appeal thereafter."

7. In Federal Commissioner of Taxation v. Myer Emporium Ltd. (No. 1) (1986) 160 CLR 220 at pp 222-223, Dawson J. said, in reference to an application for stay pending the hearing of an appeal: "Special circumstances justifying a stay will exist where it is
necessary to prevent the appeal, if successful, from being nugatory See Wilson v Church (No 2) (1879) 12 Ch D 454 at p458 Klinker Knitting Mills Pty Ltd v L'Union Fire Accident and General Insurance Co Ltd (1937) VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed" See McBride v Sandland (No 2) (1918) 25 CLR 369. The test which his Honour there expressed is not, I think, significantly different from the test of futility which I had expressed in Chamberlain.

8. Chamberlain's case was a case of an application for bail after conviction and sentence. This case is thus distinguishable. However, in Narain v. Director of Public Prosecutions (1987) 61 ALJR 317 71 ALR 248, I refused bail in a case in which the applicant sought a stay of an extradition order, saying that:
"If the order of surrender is executed by conveying the
applicant to New Zealand, it would be futile to prosecute the application for special leave to appeal. The subject matter of the litigation is the liability of the applicant to be conveyed compulsorily to New Zealand pursuant to the Act, and to preserve that subject matter this court may exercise its inherent jurisdiction to stay the execution of this surrender order and any warrants issued pursuant thereto" See Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at pp 682-683. And the question there, of course, was whether or not the jurisdiction should be exercised. That case illustrates the necessity to identify the subject matter of the litigation in order to determine whether a refusal of a stay order will render futile the proceedings in this Court and will prevent a successful appellant from being restored substantially to his former position.

9. In the present case, if no order is made, will the applicant's right to seek special leave to appeal and, if granted, to appeal, be rendered futile if the appellant remains in custody in consequence of the order made by Marks J.? I cannot think that it will. It is imperative that the jurisdiction to grant a stay be recognized as extraordinary and that applications seeking to invoke that jurisdiction are not made simply in order to secure the intervention of this Court in the preservation of a status quo.

10. In Edelsten v. Ward (No. 2) (1988) 63 ALJR 346, I said that the jurisdiction can be exercised only in extraordinary circumstances and added:
"It is as well to emphasize that observation again lest the
impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised." This must be so, particularly in the case of interlocutory applications in a criminal jurisdiction. That is a matter to which I referred in Clarkson v. Director of Public Prosecutions (1985) 60 ALJR 677 at p 678 69 ALR 286 at p288 18 A Crim R 231 at pp 231-232, where I said:

"It would be extraordinary for this Court to grant bail to a prisoner awaiting trial in the Supreme Court of Victoria, even if an appeal on an interlocutory matter were pending here."

11. The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial. It is not therefore necessary for me to consider the strength of the application for special leave which is now pending in this Court. All that is necessary for me to determine is whether the applicant's right to seek special leave to appeal and, if granted, to appeal, would be rendered futile if the appellant remains in custody in consequence of the order made by Marks J.

12. It seems to me that there is one consideration to which I should especially refer and that is the prospect of the applicant preparing for his trial. I am conscious of the importance of the applicant being free to prepare adequately for a trial, lest the trial in the result be unfair. But I cannot think that in the interim between now and the time when the application for special leave will be heard there is likely to be such prejudice to the preparation of the trial that it could not be satisfactorily provided for by some order that might be made by the trial judge.

13. In those circumstances I think that the appropriate order for me to make at this stage is simply to refuse the application.

14. As this application is incidental to the application for special leave to appeal, I think the appropriate order to make is that the costs of today's proceedings be reserved to the Court which is considering the application for special leave to appeal and if it be necessary, that Court can then remit to me further consideration of today's costs. Otherwise that Court may, if it sees fit, deal with the costs of today's application as it may be advised.

Orders

Application refused.