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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chew v The Queen [1991] HCATrans 350
Case
[1991] HCATrans 350
Decision Date
CaseChat Overview and Summary
This matter came before the High Court of Australia concerning an application for bail made by the applicant, Mr. Chew, represented by Mr. Marshall, against the respondent, the Crown, represented by Mr. Hope. The core of the dispute revolved around the applicant's impending release on parole and the timing of the Court's decision on his appeal.
The legal issues before the Court were whether exceptional circumstances existed to warrant granting bail, particularly in light of the applicant's non-parole period expiring shortly after the appeal hearing. The Court was required to consider the practical implications of the appeal decision being handed down after the applicant's custodial sentence concluded and the potential benefits to the applicant if successful in his appeal.
The Court considered the applicant's submission that the exceptional circumstance was the likelihood of the Court's decision being delivered after his custodial period expired. The applicant argued that if successful, he would clear his name and eliminate the parole period of his sentence. The Court noted that the applicant had 70 days remaining to serve before his parole release date of 19 February 1992. The Court also inquired about the current legislative framework in Western Australia governing parole and remissions, and whether the decision was still made by the parole board or governed by statute. The applicant's counsel indicated that the parole board still made the decision, but that for practical purposes, there was no reason to suspect the applicant would not be released on parole. The Court also questioned the significance of the appeal concluding on the same day as the hearing.