Bulejcik v The Queen

[1995] HCATrans 354

`

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S74 of 1995

B e t w e e n -

ANTON BULEJCIK

Applicant

and

THE QUEEN

Respondent

Application for bail

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 28 NOVEMBER 1995, AT 9.36 AM

Copyright in the High Court of Australia

MR G. WENDLER:   If the Court pleases, I appear for the appellant.  (instructed by Brock Partners)

MR R.N. HOWIE, QC:   I appear for the respondent Crown, your Honour.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions, New South Wales))

HIS HONOUR:   Yes, Mr Wendler.

MR WENDLER:   If the Court pleases. 

HIS HONOUR:   This appeal was heard on 6 October, was it not?

MR WENDLER:   That is right, your Honour, and your Honour will recall that your Honour was a member, of course, of the quorum but entertained that appeal and reserved judgment on that day.

It may be useful to commence this application by inviting your Honour to the affidavit which accompanied the summons activating the application.  Can I just invite your Honour to that affidavit.  It is the affidavit of Kevin McMaster Rodgers dated 9 November 1995.  I just seek leave to read or, rather, identify a couple of paragraphs in it.

HIS HONOUR:   Just a minute.  Now, you are moving on a summons that was filed on 13 November.

MR WENDLER:   Filed on the same day.

HIS HONOUR:   And on the affidavit of Kevin McMaster Rodgers, filed on the same day.

MR WENDLER:   That is right, yes.

HIS HONOUR:   Any objection to that affidavit, Mr Howie?

MR HOWIE:   No, your Honour.

MR WENDLER:   Your Honour, paragraph 5 - if I could just invite your Honour to that paragraph.  That is perhaps the most useful starting point.  Identified there is the sentence of imprisonment that was imposed by a District Court judge in the State of New South Wales on 23 November 1993.  The minimum term imposed was three years and that term was to expire on 15 October 1996.  So, that immediately introduces the first relevant feature, namely, that the appellant has exhausted virtually all of the minimum term.  Indeed, if this Court were not to give judgment until, say, the middle of next year, it can be fairly said that virtually all of the minimum term will have expired.  So that then raises - - -

HIS HONOUR:   The minimum term expires 15 October 1996.

MR WENDLER:   1996, yes.  Now, this raises or introduces the first feature of this application - relevant feature - namely, that the applicant will have exhausted the bulk of the minimum term of his imprisonment.  In my respectful submission, that is a - - -

HIS HONOUR:   Well, he has still got one-third to go at the moment.

MR WENDLER:   He has but one of the difficulties of this application, one does not know when the Court will give judgment in this matter.

HIS HONOUR:   No, I had that in mind, obviously.  We might come back to that.  Which other paragraphs do you draw my particular attention to?

MR WENDLER:   Paragraph 5 and then those paragraphs which concern what might loosely be described, the appellant’s antecedents, and they are contained in paragraphs 11 to 14 inclusive.  I will not say too much about those antecedents but will return to them later.

The very first issue then is the fact that there is some problem, if that is the right description, with the issue as to when the Court will give judgment and how that affects the amount of sentence that will have expired by the time it gives judgment.

HIS HONOUR:   Yes.  You say that is the first feature.

MR WENDLER:   That is the first feature.

HIS HONOUR:   What is the second feature?

MR WENDLER:   The second feature is this, that if the Court would give judgment, for instance, the middle of next year just as a loose time frame, then it is not at altogether certain whether the Director of Public Prosecutions would exercise his discretion and try the appellant for this offence again, assuming that his application for special leave which was granted is successful and the appeal is eventually ordered to be allowed, then the result of that, of course, would be a retrial and it is not altogether certain that the Director of Public Prosecutions would necessarily be moved to retry the appellant, given that the bulk of the minimum term has expired.  Once again, this is a feature which is a little amorphous, however, is relevant so far as the application is concerned.

The other matter which, in my respectful submission, is important is this:  your Honour will recall that in the appeal one of the grounds pressed concerned what might loosely be described as a procedural irregularity leading to a miscarriage of justice.  Your Honour will recall that this case involved a situation in court where the jury were allowed to compare the voice of the appellant when he made his unsworn statement with an alleged intercept conversation.

HIS HONOUR:   Yes.  There were other grounds too, of course.

MR WENDLER:   Yes, there were, but that was one of the real features which went to the issue - - -

HIS HONOUR:   That made the case unusual, I suppose.

MR WENDLER:   Yes - as to whether or not there was a miscarriage of justice.  Of course, the Crown then would have split its case, in a sense, because this aspect, namely, the jury using the voice of the appellant when he made his unsworn statement to compare it with this intercept, came after the learned trial judge had completed his summing and certainly after both counsel had completed their summing up and in the absence, of course, of any expert testimony in relation to voice identification.

So, if that feature is a powerful feature, then, in my respectful submission, it goes a long way to say that the appellant would be successful in his appeal and an order for a retrial - - -

HIS HONOUR:   I cannot prognosticate about that.

MR WENDLER:   Well, it is, nevertheless, a feature - - -

HIS HONOUR:   What you can say is that there were substantial grounds argued, obviously.

MR WENDLER:   Yes, and they are not frivolous grounds or trivial grounds or grounds which have no merit at all.

HIS HONOUR:   No.  In that sense, you are further advanced than you would be if we were at the earlier stage of the leave application.

MR WENDLER:   If it was simply an application for special leave to appeal.  So, in that sense that takes it out of those category of cases where bail has been sought pending special leave to appeal.  This is a case where special leave to appeal has been granted; the appeal has been heard and judgment reserved.  In my respectful submission, it comes fairly within the application for bail entertained by his Honour Justice Deane in the matter of Shane Paul Griffiths.

HIS HONOUR:   Yes, I have looked at that.  Just before we get into the detail, let me ask Mr Howie:  what is the Crown’s attitude to this application?

MR HOWIE:   We oppose bail, your Honour.  Does your Honour want me to address on that?

HIS HONOUR:   You oppose it at this stage or - - -?

MR HOWIE:   We oppose it at this stage, yes.  We say, really, I suppose that if there is any merit in such a bail application, this one is too early.  It would be a substantial - we would say, quite plainly, that there are no exceptional circumstances at this time justifying bail.  It is really an attempt to establish the status quo and that is not the purpose of this jurisdiction.

HIS HONOUR:   All right.  Thank you, Mr Howie.  Yes, Mr Wendler?

MR WENDLER:   I was about to invite your Honour to the decision of Griffiths v The Queen.

HIS HONOUR:   Yes.  Before we get into the cases - and there is one of Justice Toohey, as well, I think.

MR HOWIE:   Chew.

HIS HONOUR:   Yes, Chew [No 2].  This appeal was only heard a matter of weeks ago.

MR WENDLER:   Yes, it was heard on 6 October and judgment reserved on that day.

HIS HONOUR:   There is obviously no penalty for being prompt.  You are up here fairly soon, if I may say so.

MR WENDLER:   No, but my friend says - insinuates at least, that an application for bail is too early.  I would have thought that perhaps it was not early enough.  One second or one day longer in custody for a person in custody is a long time.

HIS HONOUR:   That is not the point.  Of course it is.

MR WENDLER:   Yes, quite.

HIS HONOUR:   All I am saying to you is that from what I know about the case at this stage, there might be a different approach called for if we were looking at the situation in March next year to what there is in November this year.

MR WENDLER:   Quite.

HIS HONOUR:   Now, you can either pursue this application today and risk its dismissal, I suppose, or it can be stood over to some date early in the term next year by which time the whole thing may be moot.

MR WENDLER:   Yes, that might be right.  Your Honour, there is an application before the Court and - - -

HIS HONOUR:   I know there is.  I am asking whether you wanted to adjourn it until early next year or whether you want to pursue it to finality today.  I suppose you could always bring a fresh application if you wanted to.

MR WENDLER:   Yes, quite so.  I would like to respond to that immediately but I feel I should get some instructions in relation to that.

HIS HONOUR:   Yes.  Well, I will take a short adjournment.

AT 9.46 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.49 AM:

HIS HONOUR:   Yes, Mr Wendler.

MR WENDLER:   Yes, I am grateful for, your Honour, the short adjournment.  My instructions are to press the application.

HIS HONOUR:   Very well.

MR WENDLER:   I was at the point of inviting your Honour to his Honour Justice Deane’s treatment of a bail application in - I think it was in August 1994, and that is the application of Shane Paul Griffiths.  Does your Honour have ‑ ‑ ‑

HIS HONOUR:   I have the transcript here.

MR WENDLER:   The only report I have is that which is contained in the Legal Reporter.  I could not find a report of this case elsewhere.

HIS HONOUR:   There is not so far as I know.

MR WENDLER:   This application came, as I read it, immediately after a successful application for special leave to appeal.  His Honour then proceeded to entertain the application for bail and grant the application.  Now, in my respectful submission, there are some similarities with Griffiths’ situation and the present appellant.  First, both Griffiths and the present appellant have been granted special leave to appeal but, whereas, Griffiths, at the time he made his application for bail, had not been before the Court to argue the appeal proper.  Here the situation is that the appeal has been disposed of but for judgment.

The other matter in Griffiths concerned the period of custody which appeared to be, in his case, some 18 months.  At point 3 in the paragraph on the right-hand side which beings, “The considerations favouring the grant of bail” - does your Honour have that paragraph?

HIS HONOUR:   I have the transcript.  It is on page 4.

MR WENDLER:   His Honour Justice Deane said:

The material before me indicates, and my own inquiries from the Registrar confirm, that there is a significant likelihood that, if bail is not granted, the sentence of 18 months which the applicant must serve before being eligible for parole will already have expired by the time the appeal to this Court is determined.

Certainly, that was a feature which moved his Honour to grant bail, namely, to protect the jurisdiction of the Court in relation to the appeal itself, special leave having been granted but, nevertheless, here, the situation is that if, by early next year or even in the first third of next year, no judgment has been delivered by this Court, the - - -

HIS HONOUR:   One would look at it then, Mr Wendler, that is what I was saying to you, what I said.

MR WENDLER:   I appreciate that, your Honour, but the appellant wishes to resolve this matter.  He has been in custody some time.  In fact, a scrutiny of the affidavit reveals that from the date of charging the entire criminal process, he has had the monkey on his back for a long time and he wishes to get back with his family at the earliest opportunity.

HIS HONOUR:   Of course he does; most people in prison do.

MR WENDLER:   Yes.  In that sense, your Honour, the difference in time frame from today, that is, the end of November and March, is really only a couple of months.  If bail were to be granted in March, one wonders what real difference it makes to grant bail in November in so far as the impact on the appellant is concerned.

HIS HONOUR:   As I said to you, it might be moot by March.

MR WENDLER:   It might well be but it may not be, your Honour.  Once again, the appellant is not in a position to know.

HIS HONOUR:   No, but he is in a position to get advice from you as his counsel.  Anyhow, what do you say next?

MR WENDLER:   Your Honour, the last feature or features, really, are detailed at paragraphs 9 to 14 in the appellant’s solicitor’s affidavit.  They are the antecedent matters and they concern the place of residence; they concern matters of reporting; they concern information about his background; the fact that he has a 5-year-old daughter.  One thing that is not mentioned in the affidavit - and I have instructions now in relation to it - is the availability of a surety.  That can be arranged, I am instructed.  Further, there is the issue of reporting conditions.  The appellant could report each day to a police station in relation to the matter, and so on.  They are all matters, of course, which came up in Griffiths’ application for bail and were considered relevant features for the grant of bail by his Honour Justice Deane.

I am not sure whether I can pursue it much further, your Honour.  It is unusual in the sense that it is bail pending the resolution of an appeal.  I stress again that the matters raised on his appeal were not frivolous matters.  They were important matters going to the administration of the criminal justice system and also to the areas of criminal investigation.  So, if the Court pleases, unless there is anything else, I have really, I think, covered most of the areas which are relevant to this application.

HIS HONOUR:   Yes, thank you.  Yes, Mr Howie.

MR HOWIE:   Your Honour has mentioned the case of Chew 66 ALJR 221 which is perhaps the most similar to this. Has your Honour a copy of it there?

HIS HONOUR:   Yes.

MR HOWIE:   Your Honour, the difference in that case, of course, was that Mr Chew made his application in December 1991 and was expecting to be released on parole on 19 February 1992.  One can well understand that in those circumstances, the Christmas period and the Court’s adjournment over the long recess might well have given rise to a very strong view that the Court would not be delivering judgment before the eligibility for parole arose in that case.  That is a vastly different situation to the present one where this present applicant has still almost a third of his minimum term to go and almost two-thirds of the sentence.

One cannot lose sight of the total sentence here to be served.  It is six years.  Under the Sentencing Act there is no right in the applicant to be released at the end of his minimum term.  He has to be considered by the parole board and they have to be satisfied of various matters before parole will be granted.  I can hand those up to your Honour if your Honour is interested in the sections relating to the grant of parole.  I have to admit that most persons in the position of the applicant would be granted parole but it is not an automatic matter.  It is not a matter as if it were of a sentence under three years where the parole is automatic.  Here, it has to go through the parole board and he has to convince the parole board that he is a suitable person to be released.  So that it is not a case of saying that he has completed almost the whole of his minimum term.  He has still a substantial liability to his sentence left.

Clearly the custodial part of the sentence is the most important but in Robinson v The Queen 65 ALJR 519 - and I will hand up a copy - it is a case of Justice Gaudron’s. Two things about that case: firstly, her Honour said at the second column on the first page of page 519, the middle of that first paragraph:

However, I do not understand it to have been contended by, or on behalf of the applicant, that the grant of special leave in itself is a special circumstance and, if it had been so contended, it would not, in my view, be such a circumstance.

So, the fact that special leave has been granted is, no doubt, a factor but not by itself sufficient to amount to the exceptional circumstances necessary for the grant of bail.  Secondly, and down the bottom of that same column:

Indeed, it was on this consideration that the application was substantially based, it being put that a substantial part of the sentence will have been served, at the time the matter comes on for hearing and that, in general terms, it is likely that but a small part of the custodial sentence would then remain to be served before the applicant was released to parole.

So much may be conceded but I do not think that in itself constitutes exceptional circumstances such as to invoke the inherent jurisdiction of this Court.  As earlier indicated, the matter is likely to be heard in August.

And then her Honour goes on to deal with the particular matters in that case.  But even the fact that a sentence may expire, in substance, is not necessarily, again, a special circumstance.

In a case called Beljajev v Director of Public Prosecutions (1991) 173 CLR 28 - I hand your Honour a copy of that. It is a judgment of Justice Brennan. His Honour made it clear in that case that - and if I take your Honour to page 31 - after his Honour reviewed the various cases on the grant of bails and stays, about the middle of the page:

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.

HIS HONOUR:   What is the status quo - - -

MR HOWIE:   The status quo in this situation is that he be released to bail now, I presume, so that he can come back if he loses and serve the rest of his sentence, whereas, if he stays in custody, he cannot get that back, as it were, if the appeal is dismissed.  I presume the status quo in this case is to release on bail so that he does not have to do more time in custody.  But what I am suggesting there is that is not necessarily the basis of an application for bail.

Lastly, there is a slight problem in this State, and it may not have to be resolved in this case, but it has raised its head in the case of Roos 68 ALJR 632 which was before Justice Toohey. I will hand your Honour a copy of that. The only part I need to take your Honour to is at page 633, the second column, second-last paragraph:

It is common ground that a grant of bail by the Court does not affect the running of the sentence imposed by the District Court.  If bail is granted the sentence is likely to expire, unserved, if an appeal is unsuccessful and will largely have run its course before the application for special leave to appeal itself is heard.  Counsel debated whether, if the sentence was stayed, the Court might reactivate the sentence if the applicant fails in his application for special leave to appeal or in an appeal.  Again, this is a matter I do not have to decide.  It is enough to say that doubts have been expressed as to whether the power exists where bail has been granted.

The purpose of all that is this, that Whan v McConaghy 153 CLR 631 ‑your Honour might be aware of it - confirmed that a sentence does not necessarily cease to run simply because the person is not held in custody. For example, if a person escapes under the common law, the sentence continued to run. If he is granted bail, the sentence will continue to run unless something is done to stop it.

In Whan v McConaghy, the person there had been granted bail; had never commenced to serve his sentence; had never received a stay of the sentence and the sentence continued to run while he continued his course of appeals - well, they were really applications for prerogative relief - through the civil courts.  What happened was that the Court of Appeal in that case, in dismissing his application for prerogative relief, purported to recommence the sentence that had been passed on him but which had expired by effluxion of time because no stay had been granted.  This Court held that the court was not able to do that because it had no power to recommence a sentence.

The point is this:  if your Honour granted bail to the applicant, the question arises that, without a stay, the sentence would continue to run whilst on bail.  Our Bail Act does not apply but there is nothing in our Bail Act which would stay the sentence.  So, without some order made by this Court, the sentence would continue to run. 

The doubt has been raised that if the Court granted such a stay and if it had the jurisdiction to do so, whether the Court could then recommence the sentence again if the appeal was dismissed.  The problem in this State, particularly, is the wording of the Sentencing Act.  What the Sentencing Act requires - and I hand your Honour up the section.  I think your Honour is aware of the nature of sentencing in this State but, in brief, what happens is that a court fixes a minimum term and then an additional term.  Those two sentences are the total sentence.  If I can take your Honour to section 8(1) which seems to be the one concerning the Court of Appeal:

When setting a minimum or fixed term, a court is required to specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole.

Subsection (4) says:

The purpose of this section is to require the court to give information about the likely effect of a sentence.

In this case, as your Honour will already be aware, he was sentenced to a minimum term of three years and as part of the court’s duty in sentencing, the court had to specify the commencement date and the expiration date of the minimum term and the commencement date of the additional term in requirement of section 8(1).  The problem that has troubled the Court of Appeal is that if a court stays that sentence from continuing to run on the grant of bail, can the court recommence the sentence again where the court, who was sentencing has already specified the expiry and the commencement dates of the sentence?  Does the court have any power to redo those dates, in effect, to resentence?

That has lead to the New South Wales Court of Appeal being very chary now about granting bail to persons who are seeking prerogative relief in this State.  A case that is referred to in Roos is Parker.  I do not think I need to hand it up to your Honour but Parker is the case where Justice Kirby raised the doubts about it and, in fact, there has been one matter where the court refused bail because of the uncertainty of whether the court could not.  Of course, in this situation, if this Court granted bail and could not recommence the sentence because of the peculiarities of the Sentencing Act, in fact, the frustration would be the other side and the sentence would be frustrated and the Crown’s rights would be frustrated.

So that is a complication which exists in New South Wales which may not exist in other States but is a matter which, we would submit, is very relevant when one comes to consider the question of granting bail as to whether the Court can, if granting bail, recommence the sentence or whether, in effect, the person will escape his liabilities.

The only other matter I would raise is that we would submit that it is not a relevant matter whether the DPP would exercise his discretion to retry the appellant or not.  There are obviously factors which will be taken into

account in the DPP’s mind.  Only one of them would be that he had served his minimum term if he, in fact, did so.  There are others about the nature of the offence; the seriousness of it; the fact that he still had a three-year additional term and the imports of the convictions because of the nature of the offence.  We would submit at this stage, as we have said, that it cannot be shown by the applicant that there is such exceptional circumstances at this time requiring this Court to exercise its extraordinary jurisdiction of granting bail.  Times may change and that situation may come about but it is not at this time and we would submit that the Court should not intervene in the matter.

MR WENDLER:   I do not have anything else to say other than some of the authorities mentioned by my friend - Roos and others - were all matters where there was a pending application for special leave to appeal.

HIS HONOUR:   Yes, I understand.

There is before the Court this morning a summons filed on 13 November 1995 in which the appellant seeks an order that he be granted bail on such terms and conditions as the Court deems appropriate.

The appellant’s appeal to this Court was heard on 6 October 1995 and judgment presently is reserved.  It may be said that there were grounds of substance argued on the appeal.  As counsel have pointed out, the present case differs from the situation in various authorities to which I have been referred.  In those cases the bail application was made either before or after the grant of special leave but before the hearing of the appeal.

The appellant relies for support of  his application upon an affidavit by Kevin McMaster Rodgers, sworn on 9 November and filed on 13 November 1995.  The appellant was convicted and sentenced to a minimum term of three years imprisonment commencing on 15 October 1993 and expiring on 14 October 1996.  There was also an additional term of three years imprisonment commencing on 15 October 1996 and expiring on 14 October 1999.

The structure under the New South Wales Sentencing Act 1989 which led to the imposition of a term constructed in that fashion was outlined by Mr Howie this morning and I need say no more about it for present purposes, save that in the ordinary course it might be expected that the appellant would be eligible for parole commencing on the expiry of the minimum term, that is to say, the minimum term expiring on 14 October 1996.

The circumstances of the case on which the appellant relies are outlined in the affidavit.  His personal circumstances appear, in particular, from paragraphs 12 and 13.  I do not repeat what is there set out.  What is significant is the circumstance, as Mr Howie pointed out, that at the moment there is almost one-third of the minimum term remaining and the Court has but recently reserved its decision on the hearing of the appeal.  It is, of course, impossible to forecast the date of delivery of decision on the appeal but, looking at matters now, it must be considered highly unlikely that the minimum term would be close to expiry before the judgment was delivered.

It has been said on numerous occasions and in the authorities to which I have been referred that the jurisdiction in a case such as the present is an extraordinary one requiring the presence of some special factors.  That this remains so in cases where the application for bail is made after the hearing as well as before the hearing of the appeal or before the grant of leave is illustrated by the decision of Justice Toohey in Chew v The Queen [No 2] 66 ALJR 221. In that case, his Honour did accede to the application but a perusal of the decision shows the marked contrast in the circumstances between that case and this case.

In the circumstances as they presently exist, a case, in my view, has not been made out for the relief sought by the summons and the summons will be dismissed.

AT 10.15 AM THE MATTER WAS CONCLUDED