Clarke v The Queen

[2000] FCA 171

FEDERAL COURT OF AUSTRALIA

Clarke v The Queen [2000] FCA 171

PETER SURYA CLARKE v THE QUEEN

A 101 of 2000

MILES, FINKELSTEIN and DOWSETT JJ
15 FEBRUARY 2000
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY	A 101  OF   2000

BETWEEN:	PETER SURYA CLARKE Applicant
AND:	THE QUEEN Respondent
JUDGES:		MILES, FINKELSTEIN and DOWSETT JJ
DATE OF ORDER:		15 FEBRUARY 2000
WHERE MADE:		CANBERRA

THE COURT ORDERS THAT:

1.The application be refused.

IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY	A 101 OF 2000

BETWEEN:	PETER SURYA CLARKE Applicant
AND:	THE QUEEN Respondent

JUDGES:	MILES, FINKELSTEIN and DOWSETT JJ
DATE:	15 FEBRUARY 2000
PLACE:	CANBERRA

EX TEMPORE JUDGMENT

MILES J:

1. This is an application by way of notice of motion in which the applicant seeks an order that he be granted bail pending the determination of his appeal to the Full Court from a conviction in the Supreme Court of the Australian Capital Territory. 

2. The power to grant bail pending the determination of an appeal arises from s 59(1)(f) of the Federal Court of Australia Act 1976, which gives the judges power to make rules relating to the custody of convicted persons and under o 52 r 35(3) of the Federal Court Rules 1979, the Court or a judge has power to admit an appellant to bail pending an appeal.  It is pursuant to that power that the present application is made and if any order is made it would be pursuant to that power.  I say that because the possibility arose at the commencement of the hearing that the Court was concerned with the application of the Bail Act 1992 (the Bail Act) of the Australian Capital Territory. That is not the case and the Court exercises its own power.

3. The nature of the power was described by a Full Court in the decision of Chamberlain v R in 1982, (1983) 69 FLR 445. The principle well recognized at common law was there applied. That principle is that bail will not be granted pending the hearing of an appeal from a conviction and sentence unless there are exceptional or special circumstances. There are many decisions of other courts which contain that principle and it has been applied by single

   
   

   judges of this Court many times, by Burchett J in Eastman v R (1997) 72 FCR 190 and by Finn J in Geiger v R [1999] FCA 1870.

4. The background of the present application was set out in a previous decision of the Full Court sitting on an application for leave to appeal against the refusal of bail by the trial judge in the Supreme Court after conviction but pending sentence. At that stage, the Bail Act of the Territory did apply to the appellant’s situation and the Court was constrained to apply the law under that Act.

5. So in some respects the situation has changed, but what the Full Court had to say about the background and circumstances remains applicable to…