Chew v The Queen

[1991] HCATrans 350

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P37 of 1991

B e t w e e n -

STEPHEN CHEW

i'

Applicant

and

THE QUEEN

Respondent

Application for bail

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Chew(4) 1 11/12/91

AT CANBERRA ON WEDNESDAY, 11 DECEMBER 1991, AT 11.06 AM

Copyright in the High Court of Australia

MR I.L.K. MARSHALL:  May it please, Your Honour, I a ~ar

for the applicant. (instructed by Smith

Williamson)

MR A.N. HOPE: If it please Your Honour, I appear for the

respondent, the Crown. (instructed by the Crown

Solicitor for Western Australia)

HIS HONOUR:	Yes, Mr Marshall?
MR MARSHALL:	Your Honour, this is an application for bail.

There was an application made in this matter before

Justice McHugh on 23 October and he suggested that

the matter be brought on subsequent to the hearing

of the appeal. It was, in fact, dealt with - - -

HIS HONOUR: Well, is that not putting it a bit strongly?

MR MARSHALL:	He disposed of it
HIS HONOUR:	He thought that it might be brought on,

perhaps.

MR MARSHALL: Well, Your Honour has the advantage of the

transcript. My note of it was that "a fresh

application to a Judge in chambers after 10

December 1991".

HIS HONOUR:	Do you not have the transcript of hearing?
MR MARSHALL:	No.
HIS HONOUR:	I will just read you the passage, Mr Marshall.

However, there is nothing to stop a fresh

application being made to a Judge in chambers

after the appeal is heard on 10 December 1991.

It may be that at that stage it will become

clearer whether judgment can be given before

the applicant's non-parole period expires and

it may be that the Crown's attitude will be

different.

MR MARSHALL:	Yes.
HIS HONOUR:	Perhaps you might just tell me what the

attitude of the Crown is as you understand it?

MR MARSHALL:  Today it is to oppose, I think, Sir.

HIS HONOUR:  To oppose. Is that the position, Mr Hope?

MR HOPE: That is so, Your Honour, yes.

HIS HONOUR:	Yes, thank you.	Yes, Mr Marshall.
Chew( 4)	2	11/12/91

MR MARSHALL:  Your Honour, there was an affidavit filed and

I would seek to rely on that. It was filed on

23 October 1991.

HIS HONOUR:	Yes, I have that.
MR MARSHALL:	The only difference is, of course, that now

the appellant has 70 days left to serve whereas

when the application was made in October he had 118

days left to serve. The release date on parole is

19 February 1992, there are 20 days in December, 31

in January and 19 in February, that is 70 days.

HIS HONOUR:	What is the release date, Mr Marshall?
MR MARSHALL:	The 19 February 1992.
HIS HONOUR:	And is that likely to be affected by any other

considerations?

MR MARSHALL:  On my instructions, that is the earliest

release date.

HIS HONOUR:  Yes. It cannot be said with certainty that he

would be	released on parole on that date, I
suppose?	The situation now in Western Australia is
governed	by the Act, is it, rather than the
decision	of the parole board or - something has
happened	in that regard lately.

MR MARSHALL:  What I can inform the Court is that that is

the earliest date on which the appellant can be
released on parole and, as I understand it, that

takes into account remissions and any other - - -

HIS HONOUR:	Yes, but is the decision one to be made by the parole board - - -
MR MARSHALL:	Yes.
HIS HONOUR:	- - - or does the statute operate to its own

effect?

MR MARSHALL: Still to be made by the board, as I understand

it. My learned friend agrees with that. But for

all practical purposes there is no reason to

suspect other than that the applicant will be

released on parole. He is currently undergoing

sentence at Woorooloo minimum security prison.

Your Honour, the application is on the basis that

the exceptional circumstances are that the decision
of the Court is unlikely to be handed down before

his custodial period of sentence is expired, that

is the exceptional circumstance.

The only gain to the appellant would be that

if he is successful he would clear his name and,

Chew( 4) 11/12/91

secondly, he would eliminate the parole period of

his sentence, because Your Honour will know that

the period of sentence was three years imprisonment

on each of four counts, ordered to be served

concurrently, and with the order that there was an

eligibility for parole, that meant a 12-month

sentence would have to be served less the 10 per

cent remission. The applicant has been in custody

effectively from March so that is effectively 9 to

10 months.

HIS HONOUR:  Do remissions operate on the non-parole period

in Western Australia now?

MR MARSHALL:  Yes. If you have a 12-month non-parole

period, that is reduced by three days a month, so

you effectively do 11 months, or a bit less than

11 months.

HIS HONOUR:  What do you say is the significance of the fact

that the appeal was concluded today and no decision

given, the decision being reserved, or put another

way: in what way have circumstances changed since

Justice McHugh gave his decision?

MR MARSHALL: Well, the only thing that has happened is that

Your honour will have had an opportunity to hear

argument and realize that certainly the appeal is

not a frivolous appeal and that the appeal has
substance. Whether or not it is resolved in favour

of the appellant or not - - -

HIS HONOUR:	But one can assume that from the fact that special leave was granted earlier on.
MR MARSHALL:	Yes, and that really, I suppose, gets back to

one of the earlier cases of this Court, the

decision of Mr Justice Fullagar in Re Cooper's

Application for Bail.	I think it is number 1 on
the list.

HIS HONOUR: Just before you take me to that, I would still

like to be clear as to what	your submission is in
regard to today's hearing.	You are not, I trust,
inviting me to second-guess	the likely outcome of
the appeal?

MR MARSHALL:  No, all I am saying is that the difference

between now - a successful applicant for special

leave, what has happened is we have gone a further

48 days onwards and the hearing of the appeal has

taken place. Now, Your Honour has had the

opportunity of hearing argument and I just cannot

make any submission as to the likely impact that

argument has.

Chew( 4) 4 MARSHALL 11/12/91

HIS HONOUR:  Of course you cannot. At least I hope you

cannot. But that is the aspect of it that I find troubling. Clearly, apart from the fact that the

appeal was heard yesterday and today and decision

was reserved - that is an event in history. It has

happened. I do not see how it bears upon the

matter, Mr Marshall.

MR MARSHALL:  It must, in my submission, bear upon the

matter - - -

HIS HONOUR: 

Could I just put this to you? If, perhaps, the

matter had come to the Court for hearing as an
application for special leave to appeal, and the

appeal being heard concurrently, as it might have

done 12 months ago, it might be said that - and the

Court might well have indicated that the case was appropriate for special leave but not indicated the outcome of the appeal itself, but that is ancient

history.  The special leave to appeal was

given and, I take it, had been given at the time

the matter came before Justice McHugh?

MR MARHSALL:  Yes. I think it was the day after

HIS HONOUR:  Yes, well that is what one would expect. All

right, those events having occurred - I mean, let

us say, for instance, the appeal was listed not for

yesterday and today, but for 20 February, the day

after your client is due to be released.

MR MARSHALL:  The Crown would have conceded our application

for bail, as they did, and as you will see from the

transcript. They consented to our application for

bail if it was going to go to a period after the

sentence had expired. If we had not, luckily, got

10 December, because a case fell out, and if the

case had taken place in March or April as it was

anticipated, Chew would have been out on bail as of

October. It just happened that the Registry had a

date available and we got a hearing, and it was on that basis that the Crown opposed - you can read	the transcript of what was said last time, as a
relatively mild opposition to the application.

HIS HONOUR: Well, your argument, I take it, is that your

client is really in the same position as he was

when the matter came before Justice McHugh - I

mean, in the same position, in a sense, that

although the appeal has been heard, it is unlikely

that a decision would be given at a date earlier

than his release at the end of the non-parole

period, and do you argue from that that the Crown's

earlier concession should be transposed in some way

into this present setting?

Chew(4) 5 11/12/91

MR MARSHALL: Certainly, if you are prepared to accept the

principle that if someone's non-parole period

sentence has expired and an appeal is not going to

be argued until after that, if you consent to bail

on those terms there is very little difference

between an application being made at this point

because we are not going to get a decision - I

cannot say, I have got no idea how long - but if

Shrestha took six months on a point about a

foreigner's eligibility for parole, well one cannot

have any great - - -

HIS HONOUR: Well, it is unnecessary to speculate. We can

assume, for the purposes of the exercise, and that

is - whether the assumption proves to be

well-founded or not does not matter, because it is

not going to operate against you, but let us assume

that a decision is not likely to be given until

after the non-parole period expires.

MR MARSHALL:  Yes, and the other aspect that I would

say

HIS HONOUR:  But just proceed on that footing. What do you

then say the Court should do?

MR MARSHALL:  Just before referring to the authorities about

what the Court should do in a situation as we have,

could I just say that the fact that the appeal has

been argued, and the fact that Your Honour has
heard the argument, must add another dimension to

it because if having heard the argument and in some

cases the Court can say, "Well, look there's just

absolutely no merit in this whatsoever, and I had

previously thought that there was some merit

sufficient to special leave, but having heard the

argument, it is an unmeritorious appeal - - -"

HIS HONOUR:  I cannot say that, Mr Marshall. There is a

bench of seven. Whatever my view is may not be

shared by other members of the Court.

MR MARSHALL: All I am saying is, it is a factor to be

thrown into the scales as to whether or not the

appeal is frivolous, whether there is some

substance to it, whether a single judge hearing a

bail application, whether they have some - put it

this way: if a case comes before a single judge

after the appeal has been heard and if, in the

course of the appeal, it is quite clear that the

appellant is going to be wholly unsuccessful to the

particular single judge, that would be a good

reason to refuse the bail application.

But if one is in a position where a lot of reading and a lot of research has to be done before

I can form any view, that is something which you

Chew( 4) 6 11/12/91

cannot say weighs in the scale. It cannot be put

into the scale. So all I am saying, I suppose, is

the fact that the appeal has been argued, and in my

respectful submission the fact that it is not by

any means a frivolous appeal, the fact that the
non-parole period is going to expire before a

decision, the appellant is left in the situation

where, if successful, he will have been wrongly
imprisoned for 12 months. If successful, the only

gain that he will achieve is, as I say, clearing his name or eliminating the parole period of the

sentence.

So if I could just look quickly to the principles which - and I know that Your Honour is

familiar with them, so - - -

HIS HONOUR:  Do not assume that, because although I have

read these cases over a time, I think it is an

important question and I would like you to spend as

much time as you think you need to on the

authorities.

MR MARSHALL:  I did not last time perhaps, but this time -

Cooper's Application is the first one I would like

to direct Your Honour's attention to, (1961)

ALR 584 - that is Argus Law Reports, I think,

Your Honour. It was a decision of

Mr Justice Fullagar and it was in a case where

there was a short period of imprisonment of two

months. The decision was that bail would be

granted. His Honour at page 585, at line 5, said:

I, of course, have no inclination of

opinion as to the merits of the application
for leave to appeal, or of the appeal if it is

granted, but I am left with the impression

that the grounds of appeal are, at any rate,

not frivolous, and that is, I think, a

material consideration with regard to the

weight which I ought to give to the shortness

of the sentence.

The last paragraph, when His Honour concluded:

I think that those matters which I have

mentioned do constitute exceptional

circumstances and, although not without some

little hesitation, I have made up my mind that

I ought to grant bail in this case.

Of course, each case depends on its own facts.

HIS HONOUR:  Could I just put this to you in relation to

that decision: say, for instance, your client had

been sentenced not to three years' imprisonment but

to five years' imprisonment with a non-parole

Chew(4) 11/12/91

period not of 12 months but of two years, so that

there was at least, let us say, another year to run

before the non-parole period expired, does that

tell against him when he seeks bail or tell for

him?

MR MARSHALL:  It tells against him, just as it told against

Mrs Chamberlain. If you get life, you are going to be in gaol for a long period. If you have got a

successful appeal, that is not a case where the
sentence is going to expire before you get a

decision. Cooper's is, Chamberlain is not.

HIS HONOUR: Just a moment. In relation to Cooper, there

was not a question of a non-parole period; there

was a two month sentence. So that the sentence in

every sense of the word would have expired.

MR MARSHALL:	Yes.
HIS HONOUR:	Here we have not a sentence which will have

expired, but a sentence, the non-parole part of

which will have expired.

MR MARSHALL:  Yes, but it is the sentence. For all

practical purposes, the time spent in custody is

the effective sentence. To say that, "I'm not

going to allow bail because there's a period on

parole", for all practical purposes - almost

invariably a person gets released at the time of

his earliest release date. It is very

unusual - - -

HIS HONOUR:  You say that, and I do not doubt that you speak

from much greater experience -

MR MARSHALL:	And what is hanging over the head of the parolee is anyone who commits offences whilst on
parole, he will owe the board. But for all practical purposes - and my learned friend will
agree with the proposition - the earliest release
date is almost invariably the time when .people are
released.

HIS HONOUR: Well, I will assume that to be the case unless

Mr Hope seeks to argue the contrary.

MR MARSHALL:  Yes, but to say, "Well, look, there is a

component of a parole period, therefore this should

stand in the way", in my submission, it is not an

argument against granting bail because it is the

time in custody which is the significant part of
the sentence, not the time that one is on parole,

and in Cooper's application - which, incidentally,

I have only ever made one other bail application to

the High Court which was in the case of Howe,

(1981) 55 ALJR 5.

Chew(4)	11/12/91
HIS HONOUR:	Are you taking me to that now?
MR MARSHALL:	I do not need to because there is no - it was

not reported, but that decision was when - I can

just say that Howe was given a sentence of

12 months with three month minimum and

Sir Ronald Wilson, when an appeal was filed, he

granted bail simply on the principle that the

period that he was in custody would have expired

before the appeal came on, and this is - it is a

matter of discretion and it probably does not help
for me to say, "Well, in this case or that case",

but certainly - - -

HIS HONOUR:	It might, if the case is evidence of principle.
MR MARSHALL:	And that was a case where there was a 12 month

sentence for assaulting a police officer, which was ultimately overturned, and if Howe had been kept in

gaol - just as if Robinson had been - Robinson, as

I understand it, won his appeal. That is the one

that Justice Gaudron - there was a refusal of a

bail application in Robinson, (1991) 65 ALJR 519.

I am not sure if at all Robinson was penalized by the fact that he was not admitted to bail when he

was. I think there were complications. He was

going to be released anyway on work release and the

appeal was going to come on in August, it was said.

But really, I suppose, each case has to depend

on its facts and the main principle I am seeking to

advance is that where you have got someone whose

non-parole period will have expired, where you have
got someone who has done the gaol component of their
sentence, or will have done the gaol component of
the sentence by the time the appeal is finally

determined, then it is unjust to keep him in gaol,

particularly when he well knows that if he is

unsuccessful in his appeal, he has to go back and
serve the 50 days. It is not a case of saying,

"Well, we won't accede to the application because

it's an irksome task to send someone back to serve

the balance owing", but, in accordance with the

affidavit the appellant is well aware that if he was

unsuccessful he would have to return to complete the

sentence.

HIS HONOUR:  Mr Marshall, Robinson, on the face of it, is

against you, is it not?

MR MARSHALL:  Robinson is a decision on the facts in that particular case.

HIS HONOUR: Let us just look at. At page 519, in the

right-hand column, Justice Gaudron says, about a

third of the way, against F:

Chew(4) 11/12/91

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.

She then goes on to speak of the need for exceptional circumstances and, apparently, the argument was put on the basis that at the time that

that would come on for hearing -

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.

All that seems to be against you; against you in

the sense that the situation is not dissimilar

here.

MR MARSHALL:	I do not disagree with the proposition that just because you get special leave you have got any
special - I agree with that.

HIS HONOUR: All right, but focus on the next - the bit

that I just read to you. Those three lines at the

foot of page 519.

MR MARSHALL:	it is likely that but a small part of the
custodial sentence would then remain to be
served before the applicant was released on parole.

I think one has to read that with the second

paragraph -

The applicant is presently serving a

sentence of six years which will expire in

April 1995, although it is possible, perhaps

likely, that he will be released to parole as

early as 1992. It also seems likely that he

will be granted leave of absence to undertake

employment towards the end of July -

You see, he is at liberty - he is likely to be at

liberty at the end of July.	The application was on
28 June 1991 in Brisbane.	He was going to be

released in a month's time - likely to be released

to undertake employment towards the end of July.

So, here is someone who has got a six-year

sentence, to expire in April 1995, another four

years after the decision of Justice Gaudron, and

his release on parole is early 1992 and the

appeal - I am just not sure, Your Honour, when the

appeal was heard. I believe it was disposed of

last month. I am just not sure. Certainly, I

Chew(4) 10 11/12/91

believe it has been disposed of and that Robinson

was successful.

His situation is very from Chew's situation,

the appellant's situation, in that the - just

reverting to the passage that Your Honour has

directed me to:

but a small part of the custodial sentence

would then -

still -

remain to be served

A small part may well be between June and July when

he is going out on work release. No doubt

Her Honour took the view that, "Well, here's a case

of one month when the sentence wouldn't expire".

The release on parole is early 1992, in any event.

Robinson is out - he would have been out on parole

in early 1992 but, in any event, the sentence was a

six-year sentence.

So, all I would say, Your Honour, is that

there is as a - I cannot disagree with the

principle that if you get special leave it does not
put you in a special category to get bail. But we

come back to the principle that where the gaol term

has essentially will have been served - I suppose

for someone who is an appellant, you can understand

them simply abandoning his appeal, saying "Well,

look, what's the point in going ahead with an

appeal? All I'm going to do is get the conviction

quashed. My only benefit can be the conviction can

be quashed and this non-parole period - - -". It

can bring the system into disrepute if you have the

situation when someone says, "Well, look, I won't

pursue my rights to appeal because I'm not going to

be released from prison. The only thing I can gain

is clearing my name, and quashing the sentence."

So, Cooper's application for bail, even

without going into the merits - it was at an

earlier stage in Chew's case in that it seems that

there was not even an application for special leave

because His Honour said that:

I have no inclination as to the merits of the

application for special leave or of the

appeal.

But he, not without hesitation, granted it.

I move to 1981 with Howe but the other case, of course, is Chamberlain, which takes us into

1983, 153 CLR 514. That case, I suppose, dealt a

Chew(4) 11 11/12/91

lot with the power to grant bail and it is said of

the court that it is in -

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.

What I am essentially saying is that this

application should be granted to preserve from

futility the exercise of this Court's jurisdiction

to - well, it has granted special leave and to

allow - because it is somewhat futile and somewhat

pointless for someone to do the whole custodial
period of a sentence and then wait for a decision

of the Court which if it is in his favour he will

have done 12 months gaol wrongly.

HIS HONOUR:  Do you have the precise date since which your

client has been in custody?

MR MARSHALL:	Yes, Your Honour.
HIS HONOUR:	You said March.
MR MARSHALL:	It is in paragraph 4 of the affidavit, and it

is 28 March, but, in fact, he was sentenced to that

term on 28 March and, I think, my learned friend

will confirm that he was in custody for

approximately one week prior to being sentenced,

Your Honour. I just have not got the appeal books

to tell me what the last day of the trial was.

MR HOPE: It was 20 March.

MR MARSHALL:  So, 20 March - so he is in custody since

20 March, 1991.

HIS HONOUR:  Thank you.

MR MARSHALL: There is nothing in particular in Chamberlain

that I need draw Your Honour's attention to.

HIS HONOUR:  I think the principles that are spelt out there

are well understood, Mr Marshall.

MR MARSHALL:  Yes. I did get the case of Watton, a Court of

Appeal case in England, (1978) 68 Cr App R 293.

The situation there is that, of course, there is an

exceptional circumstances test to be applied, and

forgetting about putting the facts to one side,

essentially the Court came down with - it just

highlights that:

where it appears, prima facie, that the appeal

is likely to be successful or -

Chew(4) 12 11/12/91

---

and I am reading from the headnote at the top of

page 294. You see if we cannot make an exceptional

case on the first ground that the appeal is likely

to be successful, my submission is that it can well

be that, but that can be taken as a view from

counsel advancing a particular case, but it is the

other aspect of it which we rely on:

where there is a risk that the sentence will

be served by the time the appeal is heard.

Or, in our situation, where there is a certainty

that the sentence, non-parole period of it, will

have been served by the time the decision is made,

and we say that if it is exceptional circumstances

in the United Kingdom where there is a risk that

the sentence will be served by the time the appeal

is heard, then it is certainly exceptional

circumstances in Australia for the custodial period
of the sentence to have been completed before the

decision is given, and in accordance with the

principle in Chamberlain to preserve from futility

the exercise of the Court's jurisdiction, this

application should succeed.

Your Honour, I think that was all, really, I

could say.

HIS HONOUR:	Thank you, Mr Marshall.	Mr Hope.
MR HOPE:	May it please, Your Honour.	Our submission simply

is that there is no sufficiently exceptional

circumstance to warrant the exercise pf the Court's inherent jurisdiction to grant bail as that concept

has been considered by the authorities and,

particularly, the case of Robinson v Reg, which has

already been cited to Your Honour.

The position which we took earlier has been

considered, and considered in the light of the view

that His Honour took on the earlier application and

in the light of Robinson's case, and it is in the

light of His Honour's observations - that the

earlier application in the light of Robinson's case

and the other authorities that we take this present
position.

I note that in Robinson's case, the comment by Her Honour, at page 520, or the concluding remarks

observed at page 520 in the left-hand column in the

last sentence that:

No question arises as to the need for liberty

pending appeal so as to prepare the appeal

and, on any view, a substantial amount of the

sentence would remain to be served in custody

Chew(4) 13 11/12/91

or on parole, or otherwise subject to the

Corrective Services Act -

and it certainly seems to be recognized that where

a substantial amount of the sentence remains to be

served, even if only on parole, then that time is

considered to be part of the relevant sentence, and

certainly the Court's approach appears to accept

that time spent in custody is not the whole

effective sentence and, indeed, that time spent on
parole in the community as part of that effective
sentence -

HIS HONOUR: Let us say, Mr Hope, that the sentence had not contained a non-parole period. It had simply been for a term expiring on 19 February next year. The

argument against you, no doubt, would be - futility

argument -that the entire sentence would have been

served. Now, to what extent, if that argument has

any weight, is it affected by the fact that here we

have a non-parole period and a likely period on

parole?

MR HOPE:  It appears that the approach of the Court has been

that that is, indeed, part of the sentence and a

significant factor is that there is still a real

and significant matter still live, as it were. As

the sentence was all over, the whole matter would

be at an end, as it were, but where the sentence

still exists, even if part of the sentence is not

to be served in custody, there is still that

important live part of the sentence still

existence, so the determination of the Court still

has an important bearing.

HIS HONOUR:  That is true on paper. I mean, that is

undoubtedly true as a matter of, I suppose,

formality in the sense that there is a period to be

served, but do you say that realistically there is

no difference between time spent in custody against

the context of an decision in an appeal pending and

time spent pursuant to a grant of parole?

MR HOPE:  Your Honour, time spent pursuant to grant of

parole, I can perhaps contrast it with the

situation of a person at the end of their sentence,

that is clearly different. In my submission, the

approach taken by the courts is that a distinction

is drawn where the effective sentence would be

complete from the case where the effective sentence
is not complete, and the concept of parole is that

in a way the sentence is being served in the

street. So, within that concept there is a very

real matter still live and current and pending in the case of a person released on parole, and that

seems to be the approach of the Court.

Chew(4) 14 11/12/91

I might say that we adopted a slightly view at

the earlier application because, obviously in the

circumstances, we considered that it was unlikely,

for example, that the appellant would abscond on

bail and that was the reason for our earlier

approach, but certainly the way that the

authorities appear to consider the situation seems

to be that such a matter is not, in itself, a

sufficiently exceptional circumstance to call into

play the inherent jurisdiction of the Court and

that the normal principles, as outlined in

Chamberlain's case, are still applicable.

Perhaps, because there was some confusion as

to the way in which sentences operate in Western

Australia, I should just briefly make a couple of

remarks as to that. The way in which the Parole

Act, which recently changed its name, but I will call it the Parole Act - - -

HIS HONOUR:  Could you just let me have the full name of the

Act please?

MR HOPE:  The Offenders Community Corrections Act 1963.

HIS HONOUR: That does not sound very recent.

MR HOPE:  No, the original Act has been in existence for

some time.

HIS HONOUR:  It used to be, what, the Offenders Probation

and Parole Act some years back?

MR HOPE:  That is so, Your Honour. The name has only just

recently changed.

HIS HONOUR:	To what, the Community - - -?
MR HOPE:	The Offenders Community Corrections Act.
HIS HONOUR: Are you saying, Mr Hope, it is the same Act,

although its title has changed along with other

amendments made?

MR HOPE: That is so, Your Honour, and for some time now the

effect of the Act has been to - it removes a

requirement of a court to impose a non-parole
period, and the Act itself, where parole
eligibility is granted, sets out a formula by which

the - - -

HIS HONOUR: That is what I had in mind when I said to

Mr Marshall I thought there was a statutory regime.

But it is still ultimately a matter for decision by

the parole board, is it not?

Chew(4) 15 11/12/91

MR HOPE: Well, particularly as to the earliest release date

because, in fact, that brings into play another

factor as well because the way that the Act

operates, in effect with a three year term, is that

as to that, he would have a year in custody and a

year on parole, and effectively a year released out

of the three years in normal circumstances.

HIS HONOUR:  I do not follow that. The year seems to have

disappeared out of that.

MR HOPE: Essentially that was the remissions year, so there

was effectively a year for parole, a year

remissions and a year in custody. But as the

remission period is almost accepted as being

automatic -

HIS HONOUR:	Are you speaking of remissions or non-parole?
MR HOPE:	Because they do not, in fact, enforce remissions

except in most exceptional circumstances, there is

an additional period of 10 per cent in addition to

the two years that he would not normally serve in
custody. There is another period of 10 per cent

and a period actually spent in custody which

operates as true remissions, so that a person can

be released earlier than the year by 10 per cent,

subject to good behaviour and so on. And that is

why, in the affidavit, it is suggested that Mr Chew

might be released earlier than 20 March 1992.

HIS HONOUR: Well, the affidavit asserts, at least as a

matter of belief, that the earliest date for

release is 19 February 1992.	Do you accept that as
an accurate statement?

MR HOPE:  I accept that that would be the earliest release

date and that is because of this additional period

which would be totally subject to the discretion of

the authorities. I have no reason to disbelieve

that Mr Chew has been behaving very properly in

prison and that he be released on the earliest

release date. But that is entirely a discretionary

matter, that additional 10 per cent period.

HIS HONOUR:  You mean without the 10 per cent he would have

a statutory right to a non-parole period but at a

slightly later date than 19 February?

MR HOPE: That is so, Your Honour, yes. That would be the

effective non-parole period. He does not

automatically get released on that date if there

were some problems in the prison, for example.

HIS HONOUR:  But realistically, am I entitled to assume that

on the information available to counsel,

Chew( 4) 16 11/12/91

19 February is a likely date for his release on

parole?

MR HOPE:	I accept that without reservation, Your Honour.
HIS HONOUR:	Yes, thank you.

MR HOPE: If it please Your Honour, those are the

submissions that we have.

HIS HONOUR: Anything in reply, Mr Marshall?

MR MARSHALL:	No, Your Honour.
HIS HONOUR:	I would like a short time to think about this,

but I would like counsel to know the outcome before

they leave here.

MR MARSHALL:	Your Honour, if it is of any assistance I do have a draft minute.
HIS HONOUR:	Is that one that Mr Hope has seen?
MR MARSHALL:	He has seen it.
HIS HONOUR:	That is the minute attached to the summons,

Mr Marshall, is it?

MR MARSHALL:  Yes it is, Your Honour.

HIS HONOUR: Well, unless you want to speak to that at the

moment, Mr Hope, which may be premature, I think I
will probably leave it on the basis that my

decision is reserved. If I refuse the application,

then it does not arise. If I am disposed to grant

it, then I would hear from you as to any terms on

which bail should be granted.

MR HOPE:  Certainly. If it please the Court.

AT 11.49 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.14 PM

HIS HONOUR:  Mr Marshall and Mr Hope, I propose to read my

judgment, but if either of you requires a copy, it

could be faxed to you in Perth tomorrow.

Chew(4) 17 11/12/91

This is an application that the applicant be

admitted to bail pending determination of his

appeal against conviction.

The applicant was granted special leave to

appeal at the sittings of the Court in Perth on

22 October 1991. On 24 October his counsel

appeared before McHugh J and sought bail pending

determination of the appeal. At that time it

seemed likely that the appeal would be heard in

Canberra on 10 December 1991. The attitude of the

Crown was that if the appeal was not to be heard on

10 December it would not oppose a grant of bail

because the applicant would have served the

custodial part of his sentence before the appeal

was heard.

McHugh J refused the application, saying that

there was nothing to stop a fresh application being

made after the appeal was heard on 10 December.

This was on the basis that it would then be clear

whether a decision on the appeal was likely before

the non-parole period had expired.

The applicant was sentenced to a term of three

years imprisonment on each charge of which he was
convicted, the sentences to be served concurrently.

In respect of those sentences a non-parole period

of twelve months applies. I put the matter in that

somewhat vague way because I was not taken to the

details of the statutory scheme applicable to those
sentences.

It is common ground however that, under the

operation of the scheme, including provision for
remissions, the earliest date on which the
applicant may expect to be released on parole is

19 February 1992. The Crown accepted that, in the

ordinary course of events, the applicant will be

released on parole on that date.	However the Crown
now opposes the application for bail.

As might be expected, the applicant puts his

case essentially on the basis that, the Court

having reserved its decision on his appeal, it is

almost certain that he will have served the

custodial part of his sentence before his appeal

has been determined. To that extent, he says, the

appeal will be futile except in so far as a

successful appeal will clear his name.

The principles applicable where bail is sought

from this Court pending the hearing of an

application for special leave to appeal or the

hearing of an appeal are well known. But the fact

situations giving rise to those principles vary.

Chamberlain v The Queen (No 1), (1983) 153 CLR 514

Chew(4) 18 11/12/91

concerned an application for bail pending an

application for special leave to this Court.	At
page 519 Brennan J observed:

" However the test may be formulated, in

practice the grant of bail pending an
application for special leave to appeal to

this Court will be more restricted than the

grant of bail by courts exercising a general

statutory power where there is an actual

appeal pending."

That is understandable. The reasons advanced by

Brennan J do not apply exactly here but the applicant does have in his favour a grant of

special leave, indicating that his appeal was

thought to raise questions of some substance and

was not frivolous.

The appeal has now been heard and the Court

has reserved its decision. I participated in the hearing of the appeal but in that respect can say

no more than that questions of substance were

argued.

These are, in a sense, negative

considerations. They serve to dispose of any

argument (and the Crown advanced no such argument

on this application) that the appeal was devoid of

all merit.

The applicant is still faced with the

difficulty that he seeks to invoke a jurisdiction

which is inherent and to justify which there must

be exceptional circumstances: see Robinson v The

Queen, (1991) 65 ALJR 519.

The applicant says that his circumstances are exceptional because, if he is not admitted to bail,

a successful appeal will mean that he will have

wrongly served the entire custodial part of his

sentence. In that regard he distinguishes cases in

which an applicant has a long custodial sentence

still to serve and he draws an analogy with a short

term sentence which will be served before an appeal

is heard: see Re Cooper's Application for Bail,

(1961) ALR 584. The analogy is incomplete for any

non-custodial period is still a part of the

sentence.

Nevertheless, when all these considerations

have been taken into account, I am persuaded that

this is a proper case for a grant of bail. The

application is not for bail pending the hearing of

an application for special leave to appeal. It is

not an application for bail pending the hearing of

an appeal. the appeal has been heard, the Court

Chew(4) 19 11/12/91

has reserved its decision and the likelihood is

that its decision will not be known until after the

applicant has served what is effectively the

custodial part of his sentence. Whatever the fate

of his appeal, it cannot be described as frivolous.

In all those circumstances I am prepared to

accede to the application but will hear from

counsel as to the conditions upon which the
applicant may be admitted to bail.

Mr Marshall, there is a minute of order attached to the summons.

MR MARSHALL:  My learned friend and I have discussed that

and it appears that there would need to be some

amendment to it to this extent, that there be a

surety.

HIS HONOUR:  Just before we get to that, if you go to the

bottom of the first page, you will see something in

these terms:

IT IS ORDERED that the time for making this

Application be abridged -

that is all right -

that the Appellant be admitted to bail pending

the determination of his appeal to this

Court -

I think we should insert the words "or until

further order", because it is conceivable that

something might happen that would justify a

revocation or a variation of the conditions of

bail.

MR MARSHALL: Certainly.

HIS HONOUR:  What about paragraph 1:

That the Appellant reside at 19 Kinross

Crescent, Floreat in the State of Western

Australia.

Any comment on that?

MR MARSHALL:	I think that is entirely appropriate.
HIS HONOUR:	I will hear from you first, Mr Marshall, and

then invite Mr Hope to comment. Paragraph 2?

MR MARSHALL: In relation to that, Your Honour, the

appellant is an undischarged bankrupt, so what we

thought was that it would be as well to make the

surety "forfeit to the Crown the sum of $10,000 if

Chew( 4) 20 MARSHALL 11/12/91

he fails without proper cause to comply with the

terms of the order".

HIS HONOUR:  How do I incorporate the reference to surety?

MR MARSHALL: It would be necessary, I think, in 2 to

delete, "That the appellant agree to forfeit to the

Crown".

HIS HONOUR:  I would have to provide first that the

appellant provide a surety, would I not?

MR MARSHALL:  I think it could be done in this way: cash

could be deposited or a surety in the sum of

$10,000. That would give sufficient flexibility

and at the same time achieve the desired effect.

HIS HONOUR:  Yes, but how do you suggest I frame it?

MR MARSHALL: There is a condition that the appellant be

admitted to bail pending determination of the

appeal or until further order on the following

conditions. The conditions would be that the sum

of $10,000 be deposited at the Supreme Court,

Perth, or that a surety enter into a recognizance

in the sum of $10,000. I am sorry, Your Honour,

that I have not got a draft minute for you.

HIS HONOUR:  I do not mind that, just so long as it is clear

as to what you are asking. Let me just see if I

can note it in these terms. This would be

paragraph 2:  "That the appellant deposit" - who is

the appropriate officer at the supreme court? Is

it the master or - - -

MR MARSHALL:	The registrar.
HIS HONOUR:	The district registrar, I suppose.
MR MARSHALL:	The Registrar of the Supreme Court,

Your Honour.

HIS HONOUR:  Is it enough just to say, "That the appellant

deposit with the Registrar of the Supreme Court of

Western Australia the sum of $10,000"? I mean, as

what?

MR MARSHALL:  To be forfeited to the Crown if he fails

without proper excuse to comply with the terms of

this order.	I think that is implicit in a grant of
bail on - - -

HIS HONOUR:  It may be implicit, but I just want to see that

it works.	The substantive order that you seek is
largely reciting what has happened in the past.	It
then goes on:

Chew(4) 21 11/12/91

That the Appellant be admitted to bail pending

the determination of his appeal to this

Court -

and I have added "or until further order" -

on the following conditions:-

2 will read:  "That the appellant deposit with the

Registrar of the Supreme Court of Western Australia

the sum of $10,000". And you want as an

alternative the provision of a surety?

MR MARSHALL:  Yes, Your Honour.

HIS HONOUR: Acceptable to whom?

MR MARSHALL:  Normally it is simply an approved surety. My

learned friend and I discussed that, and that would

be a matter to be approved - normally it is

approved by the police. My learned friend has no

objection to it being approved by the Crown.

HIS HONOUR:  I do not want to be difficult, but what is the

Crown there? The Crown in right of Western

Australia, I suppose.

MR MARSHALL:  Approved by the Crown Prosecutor for Western

Australia.

HIS HONOUR:  Do I need to provide expressly for forfeiture

of those amounts, or do the rules take care of

this?

MR MARSHALL:  I would not have thought so, because it seems

implicit in that that that is what would happen,

but there certainly can be an ancillary order,

"That the appellant agree to forfeit to the Crown

the sum of $10,000 if he fails without proper

excuse to comply with the terms of the order".

HIS HONOUR:  Those things would ordinarily be taken care of

either by the statute or by rules, would they not?

MR MARSHALL:  I did get a draft order from the Registrar,

Mr Jones, and it did incorporate such an order,

Your Honour.

HIS HONOUR: That is in paragraph 2, you mean?

MR MARSHALL:	Yes, that the appellant agree to forfeit to the Crown that sum.
HIS HONOUR:	Let us say that the applicant does not deposit

$10,000 but he provides a satisfactory surety.

Chew(4) 22 11/12/91

MR MARSHALL:  It is in the alternative, so the order would

only operate against the surety.

HIS HONOUR: Instead of saying "agree to forfeit", it

probably would read better if it simply said as a

conditiom, "That the appellant or surety forfeit to

the Crown the sum of $10,000 if the applicant fails

without proper excuse to comply with the terms of

this order." Make that 3 and 2 will be as I read

it, "That the appellant deposit with the Registrar

of the Supreme Court of Western Australia the sum

of $10,000 or provide a surety approved by the

Crown Prosecutor in that sum."

Then 3 will become 4, "That on a date to be

fixed by notice to him in writing by the Registrar

of the High Court as the date on which his appeal

is to be listed for judgment, he surrender himself

to the officer-in-charge of the Supreme Court at

Perth at 9 am on the said day to, if necessary, serve the balance of his sentence then remaining

unserved in accordance with the warrant of

commitment pursuant to which he has been confined."

Is there anything else you want to add,

Mr Marshall?

MR MARSHALL:	No thank you, Your Honour.
HIS HONOUR:	Mr Hope, do you want to say anything about an

order in those terms?

MR HOPE:  Your Honour, perhaps just to ask that as to the

approved surety that it perhaps read, "a Crown

prosecutor". It is just that the Crown Prosecutor

has recently been appointed the Director of Public

Prosecutions, so that position is currently vacant.

Apart from that, I have no problem. As to the last paragraph that he surrender himself, does that now

read, "surrender himself to the police officer in

charge"?

HIS HONOUR:  No, it does not. I have not made any change in

the draft. Should I?

MR HOPE:  Your Honour, perhaps it should read, "to the

police officer in charge at the Supreme Court at

Perth", just so that there is no ambiguity.

HIS HONOUR:  There is an officer of that description?

MR HOPE: There is a police officer in charge.

HIS HONOUR:  "Of the Supreme Court" or "at the Supreme

Court"?

MR HOPE:  "At the Supreme Court" .

Chew( 4) 23 HOPE 11/12/91

HIS HONOUR: Is there anything else, Mr Hope, that you - - -

MR HOPE:  No, Your Honour. My concern with the initial

draft was that it was not an appropriate condition

for a bankrupt appellant to agree to forfeit

moneys. So the agreement now, being the agreement

of the surety to forfeit the $10,000 if there is a

non-appearance, is quite adequate for our purposes.

HIS HONOUR:  Except that the paragraph, as I framed it in

the light of the discussion with Mr Marshall, was

"that the appellant or surety". Can an appellant,

in the position of this appellant, forfeit $10,000?

MR HOPE:  If he has deposited the $10,000 cash, there is no

problem about that. It was just if it was own

recognizance bail and he - if it is money he has

deposited that is available to him, then presumably

that can be forfeited.

HIS HONOUR: All right. Anything else?

MR HOPE: Nothing, Your Honour, thank you.

HIS HONOUR:	I suppose I ought to give you liberty to apply as to the conditions of bail in case, on either
side, there is some obstacle that you run into. So
I will add a paragraph to stand as paragraph 5,
"Liberty to apply as to the conditions of bail".
Thank you.  We will now adjourn.

AT 2.32 PM THE MATTER WAS ADJOURNED SINE DIE

Chew(4) 24 11/12/91