Bilal v Middlemiss
[2022] ACTSC 225
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bilal v Middlemiss |
Citation: | [2022] ACTSC 225 |
Hearing Date: | 11 August 2022 |
DecisionDate: | 11 August 2022 |
Before: | Kennett J |
Decision: | Bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – Bail – where applicant appealing against sentence in Magistrates Court seeks bail pending appeal hearing – whether there are special or exceptional circumstances favouring grant of bail – bail refused |
Legislation Cited: | Bail Act 1992 (ACT) ss 9E, 22 Criminal Code 1995 (Cth) ss 474.15, 474.17 Magistrates Court Act 1930 (ACT) s 216 |
Cases Cited: | Ex parte Maher [1986] 1 Qd R 303 Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 R v De Simoni (1981) 147 CLR 383 |
Parties: | Ali Hassan Bilal ( Applicant) Jude Joseph Middlemiss ( Respondent) |
Representation: | Counsel J Purnell SC ( Applicant) K McCann ( Respondent) |
| Solicitors Aulich Criminal Law ( Applicant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 26 of 2022 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 2 August 2022 Case Title: Middlemiss v Bilal Citation: [2022] ACTMC 17 |
KENNETT J:
Mr Bilal, who I will refer to as the offender, pleaded guilty in relation to five offences which can be summarised as two offences of using a carriage service to make a threat to cause serious harm contrary to s 474.15(2) of the Criminal Code 1995 (Cth) (Code) and three offences of using a carriage service in a way that a reasonable person would regard as menacing contrary to s 474.17(1) of the Code.
A hearing on sentence was conducted on 21 July 2022 before the Chief Magistrate. The sentence was handed down with reasons given orally on 2 August 2022. The total effective sentence was one of 13 months’ imprisonment which was to be which suspended after serving four months upon entering into a recognisance order for a period of 18 months.
Prior to being sentenced, the offender had been on bail and, so far as I understand, had complied substantially with the conditions of that bail.
He filed a notice of appeal against the sentence on 4 August 2022 and, by an application made on 9 August 2022, seeks bail pending the hearing of the appeal.
As a result of s 9E of the Bail Act 1992 (ACT) (Bail Act), bail must not be granted in a case such as this unless the Court is satisfied that special or exceptional circumstances exist. The ordinary criteria for bail set out in s 22 of the Bail Act are not of themselves special or exceptional. Section 9E thus imposes a threshold test that must be met before those criteria are considered.
Decisions in this Court have held that a special circumstance is ordinarily established if, absent a grant of bail, the utility of the appeal would be compromised by an unacceptably large proportion of the sentence having been served before the appeal is heard.
Although some of the cases refer to the appeal having been rendered nugatory, I do not think that this point is limited to circumstances where the appeal would be rendered wholly inutile. As it was put in a passage in Ex parte Maher [1986] 1 Qd R 303 (at 311–2), quoted by Refshauge J in Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 (Kelly’s case), at [29]:
In some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the applicant has a good chance of success upon appeal. This may afford sufficient reason to grant him bail ... In some cases an appellant may inevitably be required to serve an unacceptable portion of his sentence before his appeal can be heard. This commonly occurs when the main penalty is a short custodial term. Indeed, experience suggests that these instances are the most common examples of favourable exercise of discretion for applicants for bail after conviction.
The offender relies upon this line of authority in order to argue that special or exceptional circumstances exist in this case for the purposes of s 9E.
The cases recognise that special or exceptional circumstances can only be established in this way if the appeal has reasonable prospects of success.
In applying that concept, the Court should not attempt to decide the appeal itself at this early stage. In my view the inquiry should be limited to an assessment of whether grounds are put which, when argued fully, have some reasonable prospect of persuading the Court that the appeal should be allowed.
It is certainly not necessary to show that the prospects of the appeal are particularly strong. The extract that I have quoted above from Kelly’s case seems to envisage that if there is patent error in the decision below, that may justify a grant of bail without more. That appears to be a distinct category of case from the case where an absence of bail compromises the utility of the appeal.
For the same reasons, I am reluctant to accept the invitation of the Crown to assess the strength of the appeal and weigh my assessment of the appeal against a consideration of how much of the sentence imposed on the offender will be served before the appeal is heard. Any detailed assessment of prospects is problematic in a bail application where the argument is necessarily abbreviated. A preferable approach is simply to consider whether an appeal has a reasonable prospect of succeeding.
Before turning to the issues as they arise in the present case, I note that the task of establishing exceptional circumstances in the manner discussed above is complicated by the effect of s 216 of the Magistrates Court Act 1930 (ACT). That provision automatically stays a sentence when an appeal is commenced. The offender must then be released on bail or remanded in custody.
If the latter course is taken, as has happened here, pending the hearing of the appeal the offender is a remandee and is not serving their sentence. Thus, technically, when the offender’s appeal is heard in the present case he will only have served two days of his sentence. However in cases such as this it is within the power of the appellate court, and will almost always be appropriate, to make an order having the effect that the time spent in custody awaiting appeal is treated as time served pursuant to the sentence. The reasons why such an order should be made are obvious. The likelihood that such an order will be made means that, for the purposes of the enquiry as to whether special circumstances exist under s 9E, the offender should be treated as in substance serving their sentence.
In this case, at least two points are contained in the amended notice of appeal that appear to me genuinely arguable and capable of persuading the Court that the Chief Magistrate fell into an error of the kind referred to in House v The King (1933) 55 CLR 499 (House v The King).
These are first, that in connection with an offence of using a carriage service to menace her Honour took into account threats to cause very serious harm to the recipient of the threat, essentially as a circumstance of aggravation and contrary to the principle established by the High Court in R v De Simoni (1981) 147 CLR 383. That point appears to turn on how the relevant part of her Honour’s reasons is construed and reasonable arguments can be put both ways.
Secondly, in considering the context in which some of the threats were made, her Honour made reference to the fact that both the offender and the persons being threatened were members of the Canberra chapter of the Rebels Outlaw Motorcycle Gang and further referred the nature and reputation of that organisation as a factor likely to enhance the degree of fear that would arise from the threats having been made.
While that reasoning is at first blush unexceptional, it appears that there was no basis in the material before her Honour for any conclusion to be drawn about the nature or reputation of the Rebel’s Outlaw Motorcycle Gang; and, to the extent that her Honour relied upon those matters, they must have been drawn from her own general knowledge. It appears to me reasonably arguable that her Honour erred in relying upon that understanding.
I do not wish to be taken to suggest that the other arguments raised by the amended notice of appeal are without merit. I have highlighted these two in order to explain the basis for my assessment that the appeal, while it may well not succeed, does have a reasonable prospect of succeeding.
If either of the matters that I have mentioned were found to amount to errors in the House v The King sense, the Court on appeal would perform the sentencing task for itself and therefore might arrive at a quite different sentence from that which the Chief Magistrate imposed.
Following an oral application for expedition made this morning, it has been ascertained that the appeal can be heard in the week commencing 29 August 2022. By that time the offender will have served around a quarter of the period of full-time imprisonment imposed on him by the Chief Magistrate. That is a significant development compared to the position when the application for bail was made. Then, the case was listed for settling of the appeal papers in September 2022 and it appeared that the appeal might not be heard for some considerable time after that.
The prospect that a quarter of the custodial part of the sentence will have been served before the appeal is heard is far from ideal, but in my assessment it does not deprive the appeal of utility to an unacceptable extent.
It should be kept in mind in this connection that the total sentence is 13 months and that, as things stand, the offender, after completing four months of imprisonment, will be subject to a recognizance release order for a further 18 months. Those matters are relevant to an understanding of what proportion of the sentence will have been completed by the time the appeal is heard and therefore an assessment of the degree to which the appeal retains utility.
Mr Purnell SC, who appeared for the offender, argued strongly that a single day spent in prison when the person is qualified to be granted bail is unacceptable. That proposition can be accepted; but attempting to apply it in the present circumstance tends to lead to circularity. That is because whether the offender merits a grant of bail depends necessarily on whether the period for which he will be detained is unacceptable; and the standard of what is unacceptable must be found somewhere other than in the fundamental proposition advanced by Mr Purnell.
If, as I have concluded, albeit with some hesitation, the period of imprisonment that the offender faces before the appeal is heard does not deprive the appeal of utility to an unacceptable degree- or, to put it another way, does not deprive the appeal of utility to a degree that makes the circumstances special or exceptional – it follows that he is not eligible to be granted bail by force of s 9E.
For these reasons, and, as I have said, with some hesitation, bail will be refused.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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