Chew v The Queen

[1991] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P22 of 1991

B e t w e e n -

STEPHEN CHEW

Applicant

and

THE QUEEN

Respondent

Application for bail

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 1991, AT 2.45 PM

Copyright in the High Court of Australia

Chew( 2) 1 24/10/91

MR I.L.K. MARSHALL, May it please, Your Honour, I appear for

the applicant on this summons. (instructed by

Smith Williamson)

MR A. ROPE: If it please Your Honour, I appear to represent

the respondent. (instructed by the Crown Solicitor

for Western Australia)

HIS HONOUR:  Yes, Mr Marshall, what is the situation in

relation to this matter?

MR MARSHALL:  Your Honour, I hand up a minute of proposed

orders. The situation is, Your Honour, that the

application simply, based on the fact that the

non-parole period which the applicant - that will

be completed by 19 February. There is a
possibility that the hearing can take place on

10 December and, in all probability, a decision of

the Court would be unlikely to be handed down prior
to the expiration of the non-parole period and,

accordingly, we would say that in the circumstances

bail should be granted.

Mr Letts mentioned the Howe case, (1981)

55 ALJR 5. That was a case in point. That was a

sentence of 12 months with a 3 month minimum for

assaulting a police officer. Mr Justice Wilson

granted an application for bail on the very point
that his sentence would have expired by the time

the appeal decision was handed down.

HIS HONOUR:  But this prisoner's sentence will not have

expired, will it?

MR MARSHALL:  No, the term was three years but the

non-parole period will have expired.

HIS HONOUR:  Have you read the judgment of Justice Gaudron

in Robinson v Reg?

MR MARSHALL:

Yes. It is on the list and the principles are

set out in the summary. I have read that but the

facts are different to this extent, that Robinson

had a longer period. I mean, it appears from the

judgment that - I am looking at the Australian Law

Journal copy of it, in the second paragraph:

It also seems likely that he will be granted

leave of absence to undertake employment

towards the end of July -

et cetera. And I have read the Chamberlain case and I am aware that Your Honour argued that case.

Your Honour is well familiar with the principles.

HIS HONOUR:  Yes.

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MR MARSHALL: It is simply wrong, in my submission, that

somebody should be in gaol because it renders the

appeal somewhat pointless. Someone's name can

certainly be cleared with a successful appeal but

they will have effectively done the custodial

period of the sentence. What we say in the

submissions is that the order should be made,

notwithstanding the fact that if the appellant is
unsuccessful, then he will have to go back and, in

this case, serve 118 days. But he is well aware of

that. He is a legal practitioner and it has been

explained to him and notwithstanding that, he

wishes to pursue the application.

I do not think it is necessary to take

Your Honour to the cases because there are not many

bail applications reported. Cooper's application

for bail, 1961 and then, of course, Robinson and

there is the odd one scattered around the reports

which Your Honour is familiar with but the basic

principle is, in my submission, that it would be

wrong for someone to be required to remain in gaol.

And I realize that simply because one has obtained

a grant of special leave, that in itself does not

mean that one automatically gets bail. But the

proximity of the expiration of the non-parole
period, that is what, in my submission, makes it

exceptional.

I realize the obligation on the applicant to

demonstrate to Your Honour that Your Honour's

inherent power can only be exercised in exceptional
circumstances, but as I said at point 4 of the

summary of argument, the power is there to preserve

from futility the exercise of the Court's

jurisdiction to grant special leave and to allow an

appeal thereafter. If the appeal is ultimately

allowed, then he is someone who will have been

required to serve an unnecessary period of time in

prison.

HIS HONOUR:	What was the date of conviction?
MR MARSHALL:	The date of sentence was 28 March 1991.	The

date of conviction was 21 March 1991.	I am looking
at page 2 of the application book, Your Honour.	He
has, effectively, spent seven months in custody.
There is a balance of four months or 118 days in
custody remaining.	The sentences on the four

counts was three years on each count but each count

was ordered to be served concurrently. There was

an order that the applicant be made eligible for

parole and under our legislation, that means you do

a third. So, you do one year in custody less

remissions of 10 per cent for good behaviour, and

that is why it is back to 19 February rather than,

say, 28 March.

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I do not know whether I made a particularly

good job of distinguishing Robinson but, as I say,

each case depends on its merits and if you have got

someone who is going to finish the non-parole

period prior to the handing down of the decision,

prima facie, it would seem that is an exceptional

circumstance. I do not think Robinson's case was

one where he would have completed his

custodial - - -

HIS HONOUR:  No, he certainly would not have. He had some

four years to go and he was due for parole in early

1992.

MR MARSHALL:	Yes, so it is slightly different.
HIS HONOUR:	However, he was likely to be released on work

release in July, if I remember rightly.

MR MARSHALL:  He was to be released on parole as early as

1992, so as at the date of hearing, 28 June 1991,

there was quite a time to go. So, that is how we

distinguish it and we would rely on what is said in

Watton which Your Honour no doubt relied on in

Mrs Chamberlain's case and also what is said in

Cooper's application.

It is a simple point and I do not wish to take

any more of the Court's time.

HIS HONOUR:  Thank you, Mr Marshall. What is the attitude

of the Crown?

MR HOPE:  If it please Your Honour, first we certainly have

no objection to the abridgment of time in respect
of the making of the application. Secondly, as to
the matter, I should emphasize that our concession

as to the granting of special leave is not a

concession in any way as to the merits of the

appeal and, in fact, clearly, our submission is

that there is a very strong case, indeed, as

pointed out by the Chief Justice and there are a

considerable number of arguments supporting the
proposition that, on the merits, the respondent has

a very good case.

So, as to the actual time, if the situation

was that the matter could be disposed of reasonably

quickly the situation, in our submission, would be

that it would be appropriate for the applicant to

remain in custody. However, if the situation is

that it is inevitable that the matter cannot be

disposed of for a number of months and his whole
period of imprisonment would have expired, there is

considerable - - -

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HIS HONOUR:  What do you mean by "his whole period

of - - -"?

MR HOPE: Well, his actual period of incarceration. He

would have been released, in other words, prior to

the determination of the High Court. If the

situation is that the resolution of the matter

cannot be finalized until after the time when the

applicant would be released from prison, in this
particular case there is some merit in the granting

of bail in that he, inevitably, would be left in

custody for another few months over Christmas until

February. However, as to that point, if

Your Honour is disposed to grant bail, I would

simply ask, as a matter of practicality, that

perhaps 10 December not be the actual date of the

hearing. As a matter of practicality, that is a

very difficult date from our point of view.

HIS HONOUR:  What does that mean?

MR HOPE: Well, it just means that counsel who have any

knowledge of the case or otherwise briefed as at

that time - obviously, if the matter has to go on,

we will be there and we will be able to proceed and

arguments will continue and so on. It is just that

if the matter is to go off for some period in any

event and the applicant does receive bail, I would

simply ask that the matter, in fact, be adjourned

until February or March or whatever, whenever there

is another hearing date, just not particularly

10 December. I do not know whether I have made

myself particularly clear there, Your Honour.

HIS HONOUR:  Yes. Well, does that mean that if the

proceedings were not to be heard on 10 December,

the Crown would not oppose the grant of bail?

MR HOPE: Well, yes, Your Honour, I think that would follow

because that would mean that the prisoner would be

in custody for the whole period until February or

March and at that stage his period of custody would
have expired.	He would be released on parole.

HIS HONOUR:  It is likely that even if the matter is heard

on 10 December that you certainly will not get a

reasoned judgment before February. It would be

heard in the last week of term. The Court has

quite a number of matters under reserve judgment. Of course, it is always possible and desirable to dispose of a matter such as this as quickly as

possible but there are other matters that have to

be considered. There would be no guarantee, if this matter came on for hearing on 10 December, that you would get a result by February.

Chew( 2)	24/10/91
MR HOPE:	Certainly, Your Honour. Of course, that would be

the case but if the matter could be determined on

10 December then, obviously, if it was fully argued

at that stage, the High Court would clearly be in a

much better position in considering the question of

bail and arguments having been presented and so on,

the Court would be in a better position to

understand or to know when the matter would finally

be resolved and when a determination would come

down. So, if the matter can actually be argued on

10 December, my submission would be that a further

application for bail could be made at that stage.

HIS HONOUR:  Yes. Is there anything further you want to

say?

MR HOPE:	No, if it please Your Honour.
HIS HONOUR:	Mr Marshall, is there anything you want to say

in reply?

MR MARSHALL:  Yes, there is, Your Honour. My learned friend

said that there is a particularly strong

prosecution case. I do not want to debate that and

go into the merits, but all I would do is direct
Your Honour's attention to what His Honour

Mr Justice Fullagar said at page 585 in Cooper's application for bail when he said that he had -

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.

There are grounds which are certainly not

frivolous, otherwise we would not have got special

leave. So, what we would say is that you can

certainly take it that the appeal is certainly not

The other thing that I would say is that it

without merit.

seems wrong in a way that just because a day has

become available from the Registry in December,

just by a case falling out, that the applicant

is ...•. a date just happens to become available and

if he had gone in the usual course through to

March, then he would have got bail because the

Crown is accepting that.

So, what we would say is to exercise a

discretion against an appellant simply for that

reason could not be a - - -

Chew( 2) 6 24/10/91

HIS HONOUR: Well, it is not a question of exercising a

discretion against him. It is really a question of

exercising a discretion in his favour.

MR MARSHALL:	Yes. What we would say is simply because he wants to have his case heard as soon as possible,
although if it is heard in February/March if he is
on bail, he is not going to suffer an enormous
amount of prejudice, just that he carries with him
the conviction for a longer period. It is
certainly speculation - - -

HIS HONOUR: Well, it is more than that, is it not? He is

liable to serve the balance of his sentence at any

time if he breaks his conditions of parole?

MR MARSHALL: Yes, there is that. Yes, he is. There is

that as well. But it is speculation, in my view,

to say, "Well, look, on 10 December, the Court will

be in a better position to decide the merits of a

bail application." Really, one just cannot

speculate upon that. What we would say is that it

is appropriate that bail be granted. The applicant

full well knows that if he is unsuccessful he will

have to go back to serve the balance of the time.

In some of the judgments reference is made to that: the anguish that a judge has sending someone

back to serve an unexpired sentence but the

applicant well knows that and that is something he

can live with.

HIS HONOUR: Well, what is your answer to the point that

Mr Justice Brennan made in Chamberlain's case?

To suspend or defer the sentence before an

appeal is heard is to invest the verdict of

the jury with a provisional quality.

MR MARSHALL:  Yes. Well, that is certainly a view of it

that can be taken but the fact that one gets

special leave just simply means that, that you have
got leave to appeal.	It does not mean that the

appeal necessarily is going to succeed at all.

The difference I would point to in

Chamberlain, of course, was the length of the sentence. It was not a case as we have here of the

non-parole period going to expire before the appeal

came on for hearing.

HIS HONOUR:  Was any application for bail made after

conviction and before the appeal was heard in

Western Australia?

MR MARSHALL:  No. There is some doubt about that. I seem

to remember that - I cannot advise the Court about

Chew( 2) 7 24/10/91

that, as to whether there was or there was not,

definitely.

So, we rest our submissions on the fact that

it would be unjust to leave a	man in gaol when his
appeal is coming up and where	the appeal is
certainly not without merit.	Thank you,
Your Honour.

HIS HONOUR:  Thank you, Mr Marshall.

This is an application for bail. The

applicant is presently serving a term of

imprisonment of three years concurrently on each of

four counts, the sentence having been imposed on

28 March 1991.

Special leave to appeal against his conviction

has been granted by this Court. At the moment, it

seems likely that the appeal will be listed for

hearing on 10 December 1991. If it is not listed

for hearing on that day, the appeal will not be

heard until February or March 1992.

The order of the court imprisoning the

applicant was that he be eligible for parole,

which, I am informed, means that he will be

required to serve 12 months in custody less a

10 per cent remission for good behaviour before he

can be paroled. On that basis, his earliest date

for release would be 19 February 1992.

Mr Marshall, who appears for the applicant,

contends that, if the appeal is not heard until

10 December and judgment not given until later, it

is very likely that all or almost all of the

non-parole period will have been served and that

the applicant may be released from prison before
the judgment of this Court is handed down.

Accordingly, he urges that the appeal would be rendered "somewhat pointless if the applicant is

not admitted to bail". The principles upon which this Court grants

bail are well settled. It is only in exceptional

circumstances that the Court will grant bail

pending an appeal in this Court. As

Justice Brennan said in Chamberlain v Reg (No 1),

(1983) 153 CLR 514:

To suspend or defer the sentence before an

appeal is heard in such a case is to invest

the verdict of the jury with a provisional

quality, as though it should take effect only

after all channels of appeal have been

exhausted. But the jury is the tribunal

constituted to determine whether an accused

Chew(2) 24/10/91

should be convicted or acquitted, and its

verdict takes effect immediately.

In Robinson v Reg, (1991) 65 ALJR 519,

Justice Gaudron considered an application for bail

in a case where special leave to appeal had been granted by this Court. The application for bail

was heard on 28 June 1991 and the appeal was
was to expire in April 1995, although it was possible that the applicant would be released on parole as early as 1992. It also seemed likely

unlikely to be heard until the end of August 1991. which

that he would be granted "leave of absence" to

undertake employment towards the end of July 1991.

Her Honour said (at page 519):

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. It is likely, in any event, that the

applicant will be released to employment prior

to that date. 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 or on parole,

or otherwise subject to the Corrective

Services Act 1988 (Qld), as the case may be at

the time the matter came on for hearing.

Mr Marshall seeks to distinguish the decision

in Robinson on the basis that, although in that

case the appeal was to be heard in August 1991, it

was not until early 1992 that the applicant would

be likely to be released. He points out that in

this case the applicant is likely to be released on

19 February 1992 and that the appeal will not be

heard before 10 December 1991.

No doubt, there is a point of distinction in

the facts of the two cases. But even if the

applicant is released on parole before the decision

is given in his appeal, there will still be a

Chew(2) 9 24/10/91

substantial amount of his sentence to be served

while on parole. In the circumstances, I do not

think that the ground upon which Mr Marshall relies

is sufficient to distinguish Robinson.

One matter which has given me concern,

however, is the attitude of the Crown. The Crown

concedes that it would not oppose bail if the

matter was not to be heard until next year. Mr

Marshall says, with considerable force, that it

seems unjust that, because the matter will come on

for hearing earlier than might otherwise have been

the case, the applicant's application for bail must

be refused. I am, as I say, troubled by this

aspect of the matter but, in all the circumstances,

I do not think that the attitude of the Crown in

this matter is sufficient to constitute exceptional

circumstances so as to invoke the inherent

jurisdiction of this Court.

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. I hasten to

add that the attitude of the Crown cannot be

conclusive. But, in a case where the Crown does not oppose bail, it may well be that that factor

added to other circumstances in the case makes the

matter exceptional.

The application is refused.

AT 3.15 PM THE MATTER WAS ADJOURNED SINE DIE

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