Coco v The Queen

[1993] HCATrans 138

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B21 of 1993

B e t w e e n -

SANTO ANTONIO COCO

Applicant

and

THE QUEEN

Respondent

Bail Application

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 2 JUNE 1993, AT 2.01 PM

Coco 1 2/6/93

Copyright in the High Court of Australia

MR H. FRAZER, OC:  May it please the Court, I appear for the

applicant. (instructed by Gilshenan & Luton)

MR T. BUDDIN:  May it please the Court, I appear for the

respondent. (instructed by the Commonwealth

Director of Public Prosecutions)

Would Your Honour grant leave for my

instructing solicitor to sit with me at the bar

table?

GAUDRON J: Yes, certainly.

MR FRAZER:  And the same application, Your Honour?

GAUDRON J: Yes, certainly.

MR FRAZER: 

May I inquire whether Your Honour has had the opportunity of looking at the material?

GAUDRON J: 

I have. There is not a lot said in favour of

the bail application, though, is there, on the
material that I have got.

MR FRAZER: 

Does Your Honour have - the material which I

have is the application for bail, the application

for special leave and two affidavits by Mr Quinn;

one affidavit in support of the special leave

application and a second affidavit dealing

specifically with the bail application.

GAUDRON J: Yes. The second affidavit being a four-page

affidavit with 15 paragraphs?

MR FRAZER:  Yes, Your Honour, that is it.

GAUDRON J: Yes, I have that.

MR FRAZER:  Your Honour, can I just briefly go through the

submissions. The reason for the sparsity of

material may well be that we were told that the

application was unopposed and so we would argue

special circumstances arising really from other

material and also it has been brought on quickly.

GAUDRON J: Is it still unopposed?

MR BUDDIN: 

The Crown's position is that the applicant

obviously has to demonstrate exceptional
circumstances, but should the applicant be able to

demonstrate exceptional ci+cumstances and the

question then arises as to whether or not bail

should be granted, there would be no opposition and

it ought to be - - -  ·

Coco 2 2/6/93

GAUDRON J: That does not mean anything, does it? If there

were exceptional circumstances it would be granted,

and if there were not, it would not be.

MR BUDDIN:  With respect, Your Honour, there is still a

consideration as to whether or not - there is a
threshold question. There is a threshold for my

friend to satisfy and we are not in a position to

be able to concede that there are exceptional

circumstances. But there is still a live issue as

to whether or not bail ought to be granted at that

stage and if that stage were reached, the position

remains_as it has throughout, that the respondent

does not oppose bail.

GAUDRON J: Very well, thank you.

MR FRAZER:  Your Honour, I will be making a submission about

the fluctuating attitude of the Crown as being

relevant to the very question of exceptional

circumstances. But can I just briefly go through

it, then. Of course, I accept on behalf of the applicant that we are appealing to the inherent

jurisdiction and must show exceptional

circumstances and at least generally, if not

exclusively, we must show that the application for

special leave and appeal would be rendered at least

substantially futile if bail were not granted.

That appears at least to be the general position. In addition to that, of course, Your Honour would

be interested in knowing whether the application

for special leave itself was not an insubstantial

one.

Just dealing with that point first, I make the

submission that it is plainly not an insubstantial

application for special leave. I would not expect

that matter to be agitated on the other side but

can I just briefly mention a couple of the points

which suggest that fact. The first is that in

prior collateral civil proceedings Mr Justice Lee,

was objected to in this subsequent criminal trial	in a case which is reported as Coco v Newnham, 97 ALR 419, in fact found that the evidence which
was inadmissible in consequence of provisions of
the Invasion of Privacy Act.

On appeal to the Full Court of the Supreme

Court of Queensland sub nom Shaw v Coco,

102 ALR 75, the appeal was allowed and the orders

set aside. However, of Their Honours making up the Full Court Mr Justice Ryan dissented and considered

that although His Honour Mr Justice Lee should not

have embarked on the application because of well
known considerations about fragmenting the criminal

process, nevertheless the position had been reached

where it should be dealt with and His Honour dealt

Coco 2/6/93

with the subject comprehensively and in effect

agreed with much of His Honour Mr Justice Lee's

reasons and also found that the evidence was

inadmissible.

The other two judges constituting the majority

allowed the appeal but principally on the basis

that His Honour Mr Justice Lee should not have

embarked upon it. So that whilst they considered

some questions, they did not make conclusive

findings against the position. So that the result

was, there, there were two judges who found that

the evidence was inadmissible. There was an

application for special leave.	Your Honour sat on
that application in Brisbane in 1991.	The

application was dismissed but on the express basis

enunciated by the presiding Judge, Justice Brennan,

that it was inappropriate to fragment the criminal

process in that way, applying the well known cases

that suggest that. So that this Court did not

seize the matter for that reason alone.

That is perhaps some indication that the

questions agitated are not insubstantial. The
public significance of them is this, that the
questions involve, firstly, whether there is a
contravention of the Invasion of Privacy Act when
police enter premises unlawfully and place

listening devices on them and cause private

conversations to be recorded. One of the questions

was whether that Act authorizes trespass, for

example, and other breaches of the law. Another

question is whether that Act, which does authorize
the issue of warrants to police, whether it
authorizes the issue of those warrants only to

Queensland police, which a number of judges have found to be the case, but in which, in this case, it was found not to be so restricted; in other

words, that it authorized the issue of warrants at

least to install listening devices to police forces

of other States as well as to police forces of

other countries and as well to the Australian
Federal Police.	So those two questions alone would

appear to be of some significance in a special·

leave sense.

Your Honour, I do not propose to develop those

submissions further because, as I understand it, it

is unlikely that my learned friend would wish to,

today, suggest that the application for special

leave is insubstantial, but I am in a position to

do so if it is necessary.

GAUDRON J: Yes. For my part, it does not appear to be

necessary at this stage.

Coco 2/6/93

MR FRAZER:  Thank you, Your Honour. Can I then go to the

application for bail and seek to demonstrate to

Your Honour that this is an unusual case and there

are exceptional circumstances. Can I first say

that the affidavit material does not deal at all

with questions about the applicant - the

possibility that he might not answer the bail and

so on. The position is - - -

GAUDRON J:  I take it that that aspect of the matter is not

challenged.	I take it that is what Mr Buddin
concedes.

MR BUDDIN: That is certainly conceded.

MR FRAZER:  Your Honour, if I can just mention the cases

briefly to Your Honour. They are well known.

There are a number of decisions which establish -

and as I say accept - that we must establish to

Your Honour's satisfaction that the circumstances

are exceptional and that involves a substantial

futility in the appeal process if bail is not

granted. Perhaps I should give Your Honour the

references, and I have copies of the cases to

which - I intend to take Your Honour to some of

them, anyway. The first is Chamberlain v Reg,

(1983) 153 CLR 514; the next is Narain v Director

of Public Prosecutions, (1987) 61 ALJR 317; the

next is Zoeller v Federal Republic of Germany,

(1989) 64 ALJR 137; the next is a decision of

Your Honour's in Robinson v Reg, (1991)

65 ALJR 519, and then there are two decisions, the
first Chew v Reg, (1991) 66 ALJR 209, and Chew v

Reg {No 2], (1991) 66 ALJR 221. If I could just hand up copies of those.

GAUDRON J: Thank you.

MR FRAZER: Firstly, I mention that contention that the

application for special leave is not insubstantial

and that the refusal of bail would make the pursuit

of the application for special leave at least
substantially futile.	In Narain's case there is a

reference by His Honour Justice Brennan at

page 318D to the question of either entire or

substantial futility as being relevant in previous

applications for bail. The case itself concerned a

slightly different factual situation. In the

right-hand column His Honour mentioned that:

The inherent jurisdiction of this Court has occasionally been exercised to grant bail

when an application for special leave has been

pending in a criminal· case.

I must say I have not been able to find reported cases, except the ones I have given up to

Coco 2/6/93

Your Honour in which, I think with one exception bail was refused. '

GAUDRON J: There was an earlier case where there was - it

was not bail, but there was a stay of execution, I

think -

MR FRAZER: In a very real sense, Your Honour.

GAUDRON J: Yes.

MR FRAZER:  That is the point I wish to make about that

decision, Your Honour. The first point I wish to

make is the expressed attitude of the Crown, as is

deposed to in Mr Quinn's affidavit. Originally the

Crown deposed that they did not intend to oppose an

application for bail. That is dealt with in Chew v

Reg, Chew v appeal had been granted and was an application

at least mentioned by Justice McHugh in

pending the appeal. In that case the Crown opposed

bail but at page 210, right-hand column about

letter B, His Honour said that:

It may be that at that stage -

that is after the hearing of the appeal

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.

Now, although there have, with respect, been some

ducks and drakes, as it were, with the Crown's

attitude here, they did indicate that it was not to

be opposed. The change of attitude does not seem

to have anything to do with the personal

circumstances of the case but it seems to be just a

reflection of the Crown's attitude to leave it to

the Court. In my submission, it is at least a

factor which might colour other factors in the

case.

Then, if I can go to the particular factors of

this case, Your Honour, I do submit it is a very

unusual case. Firstly, as I mentioned, in
collateral proceedings two judges did hold that the
evidence upon which the conviction

undoubtedly - - -

Coco 6 2/6/93

GAUDRON J: But this is - there is something that is

worrying me, Mr Frazer. Is there evidence besides

this evidence that goes to the matter?

MR FRAZER: There is, Your Honour, but it was not contended

in the Court of Appeal - can I rephrase that. In

the appeal in the Court of Appeal the appellant

contended that if this evidence were rejected, the

conviction would necessarily have to be set

aside - - -

GAUDRON J:	And there would have to be another trial unless the prosecutor exercised his discretion otherwise.
MR FRAZER:	The appellant contended simply for a setting

aside of the conviction. Whether or not there was sufficient other evidence to justify a retrial and

whether the Crown would do that was a matter which

was not agitated at all. The Crown did not - - -

GAUDRON J:  The charge involved is offering a bribe, is it?

MR FRAZER: Offering a bribe, yes.

GAUDRON J: 

And presumably the officers concerned could

themselves give evidence of that, quite
independently of the evidence which is in contest

in your application for special leave.

MR FRAZER: 

They could, and one, in fact, did at the trial;

one of two.	I might also say at the trial there
were other charges.	One of them was that the
accused - - -

GAUDRON J:  Now, that was also of some worry to me because

it was not immediately obvious that this evidence

was in fact relevant to this charge. I mean, that

is simply because I have not got the papers, but it

occurred to me that it might not even bear upon

this charge.

MR FRAZER: This evidence, it was accepted in the Court of

Appeal - at least I can say from memory - it

certainly was not contested - that if this evidence

were rejected, and the Chief Justice described it

as a substantial and significant body of evidence

relevant to this appeal, so it certainly was not

contested by the Crown that if this evidence were

rendered inadmissible the conviction would have to

be set aside. No such point was ever made and, as evidence - could I just finish what I wished to say about the other count which is relevant to this, because the applicant was -charged with threatening the taxation officers, again based on what appeared

on some tapes, but there was.·also other evidence of

that, not just in the listening device tapes.

Coco 2/6/93

There were other tapes, I think, and there was

certainly evidence by one of the taxation officers,

but he was acquitted on that charge on the ground

that the threat - one of the defences was that the

threat was not a real threat.	None of it was
serious.

So the point I am making is that, at the very

least, the convictions would be set aside. Whether

or not there would be a retrial would depend upon,

of course, whether the Crown asked for one or

whether one was granted.

GAUDRON J:  I am thinking in terms of Chew, where bail was

eventually granted, where the argument that was

advanced was really one that went to whether or not

there had been any crime at all. It was a demurrer

point, in effect. Yours is not such a case.

MR FRAZER:  I just cannot say whether the Crown will propose

to seek a retrial or not, based on the remaining

evidence. It is certainly possible that they would

and there certainly is some evidence which might

justify the making of such a decision. But I wish

to submit that that perhaps does not assume such a

great significance in this case as it might in

others because, firstly, there are special leave
applications to appeal against conviction and
sentence, and I will come to that. But, secondly,

if the conviction was set aside, the position would

be, if the Crown pursued another trial, that it

seems inevitable that bail would be granted to the

applicant at that s~age. So, in other words, it is not a position that he would, in that circumstance, find himself imprisoned again. That submission

would seem to reflect the attitude of the Crown all

the way through from the very commencement of

proceedings up until today.	So that it is not that
position, Your Honour.

Can I just make a couple of other points.

That this was a very unusual case was recognized by

the trial judge himself because, although

His Honour sentenced the applicant to what I will be submitting was a very heavy sentence, the

sentence was 18 months with a direction that he be

released after six months, the trial judge himself
granted bail pending the determination of the

questions in the case stated by the Court of

Appeal. So that despite the convictions by the

jury, what His Honour was really recognizing was

that the conviction depended upon the really quite

extraordinarily difficult 9uestions involved

in - - - ·

MR FRAZER:  Is there some provision in the Judiciary Act

about what is to happen if a question is referred?

Coco 2/6/93

I take it there was a question referred under the

Judiciary Act.

MR FRAZER:  No, it was referred under the Criminal Code,

Your Honour, which a procedure would be picked

up - - -

GAUDRON J:  Did it not involve a matter of federal

jurisdiction?

MR FRAZER:  It did, Your Honour, but the case stated

provisions in the Criminal Code were at least

assumed at the trial to have been picked up, I
assume, by the relative provisions of the Judiciary

Act:.

GAUDRON J: There is specific provision, of course, in the

Judiciary Act, I think.

MR FRAZER:  Your Honour has the advantage of me. I confess

I was not at the trial.	I am not familiar with
that.

GAUDRON J: Nothing turns on it, I am sure.

MR FRAZER:  There is a case stated provision in the Criminal

Code. I think it is section 668B, from memory, but

I have probably got that wrong. But I gather it

was simply assumed it was picked up by the relevant

provisions of the Judiciary Act which pick up the

practice and procedure in the State courts

exercising federal jurisdiction, and a case was

stated.

GAUDRON J: The provision I am thinking of, I think, is

section 72 of the Judiciary Act.

MR FRAZER:  I am sure my learned friend would be more

knowledgeable than I would about the relevant

procedure, Your Honour.

GAUDRON J: That, as I understand it, is the provision which

applies in matters of federal jurisdiction. I take

it there is a similar provision in any event as to

bail because there is a special provision in

section 72(2) as to bail on a reference of a point

of law but it does not go beyond that.

MR FRAZER: There is a specific provision as to bail also in

section 668B of the Criminal Code. By coincidence

I have chosen the right section number and in fact

it was avowedly for that reason that the case was

stated, so that His Honour ensured that he

enlivened himself of jurisdiction to grant the

bail, because there was a question whether bail can

be granted after conviction-without such a case

stated.

Coco 2/6/93

So I merely make that point, Your Honour, to

point out that the trial judge who was, of course,

completely familiar with all the relevant

circumstances surrounding the alleged offences and

the offence of which the applicant was convicted,

regarded it as sufficiently exceptional to grant

bail pending the appeal. It is a point which

takes, at least, I respectfully submit, some of the

sting out of the importance of not treating jury

verdicts as provisional, which is something that

His Honour Justice Brennan referred to in

Chamberlain v Reg. Of course, as Your Honour will

obviously recall, that was a case involving attack

on .the weight of the evidence and so on, and

His Honour regarded as significant - - -

GAUDRON J: Certainly that would be a matter of considerable

weight, I should imagine, where the point in issue
was one of the Chew nature, which goes to the

charge itself, rather than the evidence by which it

is proved.

MR FRAZER:  Yes, although, Your Honour, in this case - I do

not want to repeat what I have said about the

nature of the evidence. I accept what Your Honour

is saying about it, but the fact of·the exercise of

the discretion, at least, in my submission, relates

it to the significance of the points involved.

Your Honour, if special leave is granted and

an appeal against the custodial sentence is

allowed, and I will just take Your Honour briefly

to that in a minute, then the absence of bail will

render the appeal process entirely futile because

if a non-custodial sentence is subsequently imposed

by this Court - - -

GAUDRON J: That is drawing a very long bow. Has this Court

ever done that?

MR FRAZER:  Your Honour, I accept that this Court is very

reluctant to interfere, just dealing with the

question of weight of sentences and so on, but I do
not know if Your Honour has had an opportunity to

look at the sentencing remarks by His Honour the

trial judge, Mr Justice de Jersey. I should

briefly just mention some rather unusual

circumstances that His Honour mentioned. This was

exhibited to Mr Quinn's affidavit in the special

leave application. It is exhibit C. Perhaps I

could take Your Honour through it. I could also

remind Your Honour, while Your Honour is getting it

out, that this was a case in which the relevant
public servants, the taxauion officers, were acting
under the direction or co-operation of the

Australian Federal Police during the relevant

Coco 10 2/6/93

conversations. So they were not, of course,

corrupt, nor susceptible to corruption.

In essence, what His Honour accepted, in the sentencing remarks - I do not believe this to have

been really opposed by the Crown - was that Mr Coco

was being pulled in one direction, to a degree, by

the co-operative attitude of the officers. I make

it clear that I am not in any way impugning the

taxation officers and nor was that done at the

trial. They were acting properly but he, having

indicated an intention to wish to corrupt someone,

they encouraged him and Mr Coco's original

intention and continuing behaviour was being pushed from behind rather strongly by a man in whom he had implicit faith and trust. Those factors come out.

His Honour starts off by referring to the agreement

to pay $20,000 being a very serious thing, which of

course it would be. I should point out that the

figure of $20,000 was a figure suggested by the taxation officers, I think on the advice of the Federal Police. His Honour said:

The Court has to signal to public servants who

may be susceptible of corruption that it will

not be tolerated.

Now, in view of what His Honour later says in

remarks, I would be making the submission that it

is plain that this was the factor which tipped the

balance because every other factor weighed very

strongly in favour of the accused. His Honour

lists them and His Honour accepts that he expressed

genuine contrition.

There was no motive of personal financial

gain.

His Honour said:

I do not believe there is any need to deter

you personally from further offences but the	need for general deterrence is, nevertheless,
substantial.

Which Your Honour might think was a reference back

to the earlier part, at least in part. The point

which we would wish to make is that His Honour does

appear to have sentenced, not with reference to the

particular facts of this case but with reference to

a general need "to signal to public servants who

are susceptible of corruption that it will not be

tolerated". Every other factor pointed in favour

of a relevantly small sentance and, in particular,

of course, the section of the Crimes Act which

requires sentences of imprisonment to be imposed

only as a last resort, as it were, but His Honour

Coco 11 2/6/93

does seem to have taken that into account. These

points were made in the Court of Appeal, as also

was the point that two years being the maximum

under the relevant section, a sentence of

imprisonment of 18 months, with a direction for

release after six, seemed to leave not a lot of

room for the much more serious ones, where such

factors as these were not present.

The principal judgment of the Court of Appeal

was delivered by the Chief Justice and his remarks

on sentence were agreed with by Mr Justice Pincus.

His Honour, with respect, just did not deal with

these ·points. At pages 30 to 31 His Honour does

refer to the - in what I may respectfully submit,

without attempting to be derogatory, in a

conventional way in dealing with an appeal against

a discretion, His Honour deals with the application

for leave to appeal against sentence, refers to the

fact this His Honour had referred to the variety of

matters, refers to the fact that the offering of

the $20,000 to the servants -

to act in a way contrary to their duty called

to be met by weighty discouragement. The

importance of the need for deterrence is a

particular consideration in such a case.

And then simply says that the sentence, in effect,

cannot be seen as being excessive and that

His Honour mentioned all the relevant features.

But His Honour did not deal at all with our

submissions that the deterrence which seemed to

have swayed the learned trial judge either was or·
included as a substantial part the need to deter
public servants who are susceptible of corruption.

And of course, if the facts in this case were known

to anyone, that was not a relevant sentencing

factor in my respectful submission.

His Honour Mr Justice Pincus agreed but

His Honour Mr Justice Derrington added some further

Your Honour would not take into account in dealing	remarks which I just mention by way of asking that
with this question because, at page 13, about half-
way down, His Honour said that:

Associated with the seriousness of the offence, which is grave, is the conduct

consisting of heavy threats accompanying it.

I just mention that those threats were charged but

there was an acquittal entered in respect of the

threats to which His Honour refers. Further down

at the bottom:

Coco 12 2/6/93

The other important factor working

against the appellant's interests is his lack

of the remorse which should be expected from

one of his character.

His Honour the learned trial judge had accepted

that the contrition expressed was genuine, as did

the Crown at the trial, so that there was never any

question of any need to buttress the genuineness of

it by calling evidence of it at the trial and so

on. So that His Honour Mr Justice Derrington, in

my submission, has referred to matters which are,

with respect, inappropriate on the question.

I deal with sentence in that slightly long

way, Your Honour, just because it is an unusual

case on sentence and, in my submission, even on

sentence and even taking into account this Court's

attitude generally simply to weight of sentences

and refusals of special leave, nevertheless the

prospect of an application for special leave cannot

be dismissed and treated as insubstantial. And if

it were granted, then it is plain that the special

leave granted would be futile in this case, in my

submission. I say that, of course, depending upon

the various timing, but my information is - and

Your Honour no doubt is in a better position than me to know about these matters - but my

understanding is that a special leave application

could be fitted in in the late June sittings in

Brisbane but what I was told was that not a full

hearing at that time if special leave were granted.

If special leave were granted, there would

subsequently be a full hearing. I have not been·

able to ascertain any likely date but it does seem that the very short custodial part of the sentence could well be completely served.

In relation to the appeal against conviction,

if special leave to appeal against the conviction

were allowed, the absence of bail would, in my

submission, render the appeal at least
substantially futile.	It may well be that there

would remain some part, which is impossible to

predict, of the non-custodial part of the sentence,

so I could not say it would necessarily be entirely

futile. But it would be substantially futile.

Your Honour, in my submission, the factors to

which I have referred do relate to the proceedings

to be conducted in this Court and a relationship

between those and sentence, as Your Honour has

found, is necessary in that decision of Robinson v

Reg. In other words, the-special factors relied

upon to grant bail must be ones which relate to the

proceedings to be conducted.in the High Court and

the relationship of those proceedings with the

Coco 13 2/6/93

sentence, and that is Robinson v Reg in

Your Honour's judgment. That is why I have been at

pains to stress that the questions relating to bail

and the futility of the appeal if bail were

granted.

Can I just then quickly distinguish the cases

in which applications of this kind have been

refused. Firstly, Chamberlain v Reg. As I

mentioned, it really turned upon an assessment of

the evidence, a matter which really served to

emphasize the significance of not interfering with

a jury verdict, a question which is really not

present here. In Robinson v Reg, Your Honour there

the applicant was likely to be released from prison
in any event before the appeal was heard and, also,
there was a sentence there of six years, so that a

substantial amount of the six year sentence would

remain to be served even after the hearing, which

is probably not the case here although, as I say,

there might be some part of the non-custodial

sentence left. In Chew v Reg, the sentence of

imprisonment was three years and although it was

accepted that the applicant would probably be

released before the judgment was given on the

appeal, nevertheless there would be a very

substantial period of parole remaining.

In my submission, those sorts of factors are not present here and accepting that there must be

an exceptional case, I would ask Your Honour to

take into account the Crown's expressed attitude.

GAUDRON J:  How can I do that, as it were, when their

attitude here is somewhat less than you would like

it to be, I think.

MR FRAZER:	What I ask Your Honour to take into account is that they earlier expressed an attitude of not
opposing it, and today they express an attitude of
not opposing it if exceptional circumstances are
the Crown opposes bail on a variety of substantial
found. It is, of course, different in a case where
grounds and the fact that there is not such unconditional opposition is, in my respectful
submission, a matter that assumes at least some
significance. But, in any event, I do submit that given the various factors which I have mentioned -
I will not go over them again - it is an
exceptional case.

GAUDRON J: Yes, Mr Buddin.

MR BUDDIN: Might I hand up to Your·Honour an outline of

submissions. I apologize for them being somewhat

rough hewn and there may be one or two matters that

I need to underscore, particularly in relation to

Coco 14 2/6/93

things that I have been told since they were in

fact completed.

Perhaps if I can take Your Honour to the third

of the numbered paragraphs where there is a

reference to a Queensland case of ex parte Maher

and readily concede at the outset something that my

friend advanced by way of a proposition to the

effect that this case took an unusual course. He

has referred Your Honour to the fact that the trial

judge, in effect, of his own motion, having

sentenced the applicant to a term of imprisonment,

none the less determined to grant bail,

notwithstanding that, as I understand the position

in Queensland, the question as to whether or not

bail is to be granted pending appeal is in itself

dependent on the demonstration of exceptional

circumstances.

GAUDRON J:  Is that so in relation to a provision such as

that in section 72(2) of the Judiciary Act?

MR BUDDIN:  I do not know. I cannot answer that question,

but as far as I can understand the operation of

section 668B that my friend referred to of the

Criminal Code of Queensland, it would appear that

the common law position is engrafted on to the

operation of that provision. That is, in fact, why

that concession is made, that the case in that

respect, at least, has an unusual flavour to it.

GAUDRON J: Yes, but if you -

MR BUDDIN: 

I do not have - - -

GAUDRON J: 

You do not have - it would seem to me that

section 72(2) of the Judiciary Act must have
governed any reference of questions of law in a

case such as this.

MR BUDDIN: 

I am not sure that the parties turned their mind

to that at the time.

GAUDRON J: No, it seems not. But that does provide that

where there is a reference of a question of law the

Court may admit the person to bail, the Court

before which the person is tried may admit him to
bail and it does not say anything about exceptional

circumstances or anything. What you in fact have

under section 72(2) is a statutory power to grant

bail which would involve different considerations

from those normally involved in cases that come

before this Court.

MR BUDDIN: With no indication as to how or what criteria

determined the grant of that-bail, as I understand

Coco 15 2/6/93

it. Is that the position, because the provision is

silent?

GAUDRON J: That may be so, but the reason why the

exceptional circumstances notion exists in this

Court is because it is an inherent power only, not

a statutory power, and you only have such inherent

powers as are necessary.

MR BUDDIN:  I understand that. I can but repeat what I said

before, that the parties proceeded on the basis

that the operative provision was section 668B of

the Criminal Code, and it would appear, as I have

indicated to Your Honour earlier, that exceptional

circumstances would be read into the operation of

that provision which would mean that the granting

of bail in the circumstances would, itself, have

been unusual and His Honour so described the grant

of bail in the circumstances. So, in so far as a
concession needs to be made, I make that

concession.

If I can take Your Honour to paragraph 4 there

is set out at some length at page 310 of the case

that I have just referred Your Honour to of Ex

parte Maher circumstances which underpin the policy

reasons why the demonstration of exceptional

circumstances are required. Perhaps I could hand

up a copy of that decision to Your Honour.	I
particularly draw Your Honour's attention to

page 310 without reading it. It is apparent what
policy considerations motivate the approach to the

exercise of the discretion and it would be my

submission that they are equally apposite to the

nature of the exercise that Your Honour is

presently undertaking.

Your Honour will see in relation to the fifth

paragraph, which deals with the questions that have
been agitated in relation to why this case fits

within the description of exceptional

circumstances, that the first relates to the

futility argument that was advanced by my friend

and in relation to that, the first submission that

is made is capturing a principle that was

enunciated by Your Honour in a case called Coulter

v Reg, (1987) 61 ALJR 537.	I might hand that to
Your Honour.	So far as the particular principle

upon which I rely is concerned, it appears on

page 538, left-hand column, at about point 8. It

is the second sentence of the paragraph starting,

"It is not disputed that this Court has

jurisdiction".

Your Honour, the next submission draws its

comfort from what was said by this Court in

Robinson and, in my submission, the case of Chew

Coco 16 2/6/93

[Nol] that was referred by my friend is to similar

effect. The mere fact that a substantial part of

the sentence will have been served at the time the
matter comes on for hearing does not in itself
constitute exceptional circumstances. I think
Your Honour already has the decision in Robinson
but the particularly apposite part is the argument

that is referred to by Your Honour at the bottom of

page 519 over on to 520 and particularly the

sentence starting, "No question arises".

Of course, this sentence was considerably

shorter, both as to its head sentence and the non-

probation period, or the recognizance release order

component, but none the less, what Your Honour said

in Robinson's case is apposite to the present case.

To similar effect is the decision in Chew, and

perhaps the chronology of events in Coulter's case

and Chew's case might be of some assistance. In

Coulter's case, the applicant was convicted on

15 April in the relevant year and sentenced to a

term of 11 months imprisonment.	The bail
determination was made on 30 July 1987.	The

special leave application was then foreshadowed as

being likely to be heard in the first week of incorporating the reality of remissions was

22 November. All those events occurred in 1987 and

Your Honour said in that case that an application

could not be described as substantially futile.

In Chew's case the relevant chronology appears

to be that sentence was imposed on 28 March 1991,

it being a sentence of 3 years with an associated

non-probation period of 12 months but upon which

remissions were to operate. The bail application

was determined on 24 October 1991 and the special

leave application was foreshadowed as to be likely

to be heard on 10 December 1991 or in February or

March of 1992. That was relevant, as the likely

release date was 19 February 1992.	A similar
result obtained.
The submission that I would submit is

incontrovertible then is made, paragraph 3, that

there is a relationship between the length of the

sentence and the question of whether or not the

refusal of bail would be futile. Your Honour, I

think, referred to re Cooper's application for bail

in one of your earlier decisions. That was a case

in which the sentence was one of two months.

The parties are agreed that it appears likely

that the application will·be heard in Brisbane on

or about 28 June 1993. As I understand it, the

applicant has chosen to take the path of part A of

the special leave process so that means, as I

Coco 17 2/6/93

understand it, that he has opted for a bench of

three to determine the special leave application

only. So the parties are not in disagreement about

that. That, of course, is at the end of this

month.

MR FRAZER:  Your Honour, can I say, as I appear to be being

invited to comment on that, that we filed the

application with a great degree of urgency. We

simply were not in a position to have completed our

summary of arguments, which one must do in order to

elect to proceed that way. The fact of the matter

is that the applicant would prefer to proceed in

whatever is the preferable way and it has just been

impossible to make a judgment about it really in

the time available.

GAUDRON J: Yes, I understand that.

MR BUDDIN:  I do not quibble with what has been said. far as the second matter that is agitated is
concerned, that the application has substantial So

prospects of success, and the test has been

enunciated in different ways, but ultimately there

is no substantial difference between the ways in

which the tests have been formulated. For example,

one of the cases that my friend relied upon of that the test might be whether or not the case for

special leave is irresistible. But it is

significant that Your Honour said in Robinson's

case that a grant of special leave itself does not

constitute an exceptional circumstance, and a

fortiori, a merely arguable case for the grant of

special leave would not of itself constitute such

an exceptional circumstance. So, even for the sake

of argument, conceding that this is a case that is

arguable, that would not justify the grant of bail.

The matters that I wish to say in relation to

the merits of the argument are set out in the four

enumerated paragraphs under (i) to (iv). As I

understand it in relation to the fourth matter,

that the respondent's position in the Court of

Appeal was that even though there was other

evidence - and I think this was adverted to in what

transpired between my learned friend and

Your Honour in an earlier exchange - there was

other evidence available and the taxation officer

did, in fact - I think my learned friend indicated this - give evidence himself as to the contents of conversations but, as I understand, the Crown did

not agitate before the Court of Appeal that if this

matter was litigated in favour of the applicant

that it would be an appropriate case for the

application of the proviso; -in other words, that if

my learned friend - - -

Coco 18 2/6/93

GAUDRON J:  No, I was not thinki'ng that that is - you accept

that, at the very lest, there would have to be a

new trial?

MR BUDDIN:  Yes.

GAUDRON J: But there is no basis on which it can be

approached in the way that Chew might have been

approached, that if the ground of appeal was

correct, then that was the end of the matter for

ever?

MR BUDDIN:  No. But I thought I ought to make it clear

because (iv) might have been seen to overstate the

position. None the less, it is conceded, as my

friend has said, that the courts have not spoken

with one voice in Queensland in relation to this

matter but it also has to be said that the

substantial preponderance of opinion is against the

applicant. There have now been six members of the

Queensland Supreme Court who have spoken on the

matter and, not insignificantly, they include the

trial judge in this matter and all three members of

the Court of Appeal. My friend cannot take very

much comfort from the fact that although there were

divergent opinions in the Court of Appeal, they all

found some way of resisting the applicant's

arguments in that court. So, in summary, it would

be the respondent's submission that the applicant
has not demonstrated an exceptional circumstance so
far as either paragraphs S(A) or S(B) of the

submissions are concerned.

So far as the further submission that my

friend made concerning the success of the sentence

appeal, the submission simply is that there has

been no demonstration of error such as would

attract this Court's intervention and this Court

has spoken on that question on a number of

occasions going back for 30 years to White's case,

indicating that it would in a very rare case - I

think the terminology may be exceptional

circumstances again - that an application for

special leave in a severity case would be

entertained.

So far as the suggestion that there has been

shifting sands in the Crown's position, the

respondent's position can only ultimately be

determined when it is seen what material is

advanced in support of an argument that there are

exceptional circumstances. Of course, the

material - and it is conceded that it contains no

surprises - but it was only available, and I say

this without criticism, late yesterday to the

respondent. May it please the Court.

Coco 19 2/6/93

MR FRAZER:  Your Honour, a couple of things, if I may.

Firstly, dealing with the prospects of the special leave application, I accept, of course, this is not

the occasion to attempt to persuade Your Honour
that it is a case appropriate for special leave and

that it is probably inappropriate to do anything

other than to ask Your Honour to proceed on an

impression of the material. But perhaps I should,

in view of the submissions that have been made

about it, just show Your Honour the relevant

section of the Invasion of Privacy Act and just

mention a couple of facts relevant to the appeal

against conviction first. If I can hand up a copy

of it, and I think I can do this quite quickly,

section 43 is the relevant section. Your Honour

will see firstly in subsection (1) the creation of

the offence of using "a listening device to
overhear" et cetera "a private conversation". Now,
it is not disputed that a listening device was used

to overhear a private conversation, whatever

connotation is given to the word "use". And it was

done at least by the people who monitored the

conversation, being federal police officers.

There are exceptions which I will come back to

in subsection (2) to explain why they do not
operate, but in section 46, three sections on,
subsection (1), where there is a contravention of

section 43 there is simply an absolute prohibition reflecting a very strong policy against the giving

of the evidence. Can I mention, in relation to the

subject evidence, subsection (2) simply has no

application and was never suggested that it did in

relation to the evidence which was the product of

the listening device, which is the subject of this

application.

So the gist of the case really depends upon

the interpretation of section 43(2)(c) and also

what is meant by "users" in section 43.

Your Honour will see that section 43(1) is rendered

non-applicable:

(c) to or in relation to the use of any

listening device by -

(i) a member of the police force acting in the

performance of his duty -

Now, a number of points were argued, that in this

section references to "police force" were

Queensland police only and so on, and that seems to be supported by the Acts Interpretation Act which

provides that references to officers mean officers

in Queensland, and so on, but one significant point

is that whether this applies-to federal police or

other police or not, the exemption is only - - -

Coco 20 2/6/93

GAUDRON J: But it was in fact a State police officer to

whom the warrant was granted, was it not?

MR FRAZER:  Yes, and the warrant was in terms that he use it

by himself and others, and in effect use it by

authorizing others. What happened was that the

whole operation was really a federal police

operation, although it was said that Scanlan had an

involvement in it. He certainly had an involvement

in getting the warrant. But the point I just want

to make quickly is that "a member of the police

force, acting in the performance of his duty", now

in this Court in Plenty v Dillon, 171 CLR 635, when

that sort of question came up, the Chief Justice

and Justices Brennan and Toohey quoted with

approval from Justice Brennan's judgment in

Halliday v Nevill to the effect that:

"A police officer who enters or remains on

private property without the leave and licence
of the person in possession or entitled to
possession commits a trespass and acts outside

the course of his duty unless his entering or

remaining on the premises is authorized or

excused by law. "

It is really that kind of thing which we would

submit is picked up in the section. Just to

demonstrate, one of the significant points then is

whether there is, despite that phrase, an authority

given, either to the judge to authorize, or

directly to the police officers, to breach the

ordinary common law, to trespass. One of the

points made was that the actual approval given by himself and others not just to use a listening devise but to use it by installing it on these private premises. That was the whole basis of the

approval and it appears as annexure A to the stated
case which is itself exhibit B. It is difficult to

find these things because the pages, of course, are

not numbered. But it is about half-way

through -

GAUDRON J: Yes, I think I have it.

MR FRAZER:  Your Honour will see that what Mr Justice Carter did pursuant to section 43(1) was to approve:

such approval being as follows:

1.      That Kenneth Charles SCANLAN ..... by

himself or by means of any other

person ..... use any listening device ..... such

listening device or devices to be installed in

premises occupied by Santo Antonio COCO at 11

Coco 21 2/6/93

Anzac Road, Carina, and premises occupied by

COSCO Holdings -

which are the relevant ones -

at Carole Park.

And made an express condition in 1 - it is

expressed really as a condition of the approval:

1. That any authorized Police

Officer ..... enter and remain upon the said

premises for the purpose of installing -

But the whole basis of the approval was that it was

to Scanlan to use it, but to use it by installing

it on the premises and maintaining it. Now, what

the Court of Appeal appears to have found is but

nevertheless there is no contravention because

"use" in section 43 just refers to the actual

listening of the device. Now, in my submission,

that really involves a very significant and

substantial question about this very important

method of detection of offences by the police and a
matter affecting the liberty of subjects, affecting

the right to privacy of subjects.

So, in my submission, the notion that the

application is insubstantial is not one that should

be maintained. Again, without attempting to argue
the matter in any way, obviously I am simply not

prepared to argue it properly, Your Honour, but

that seems to be a short point that can be made.

Secondly, Your Honour, can I just say that even·if

Your Honour was of a view that the prospects of

success on an application for special leave could

only be described as substantial for the appeal

against conviction, and even if Your Honour does

take the view that Your Honour should have regard

only to the date on which the application for

special leave is likely to be heard, the serving of

that period of time in prison, that is to say

approximately a month out of a total custodial

sentence of six months, which is a short custodial
sentence, in my submission is a substantial matter,

not an insubstantial matter.

If, on the other hand, Your Honour accepts

that, perhaps partly because the Court of Appeal
simply did not appear to deal with the particular

submissions about sentence to the effect that

His Honour had misdirected himself, that there is a

basis for special leave on sentence, bearing in mind the other personal factors that do seem to

suggest that the basis of the sentence which

influenced His Honour was an·inappropriate matter,

Coco 22 2/6/93

then of course the application will be rendered

futile in its entirety.

Your Honour, in my submission, this is a very unusual case, an extremely unusual case, the facts

of which are simply not likely to be repeated with

any degree of commonality. It is very rare and, in

my submission, it does meet the quite stringent

test of exceptional circumstances. Those are my

submissions, Your Honour.

GAUDRON J: This is an application for bail pending special

leave to appeal.	The applicant was convicted on
one charge of offering a bribe.	He was sentenced

on 6 June 1992 to a period of 18 months

imprisonment but subject to release after six

months on giving security for the balance of the

term. That sentence has been suspended in the

sense that the applicant was granted bail after

conviction and pending hearing of a reference of a

question of law to the Court of Appeal of the

Supreme Court of Queensland. As it happens, the

questions referred to the Court of Appeal were not

answered but were dealt with, it seems, by way of

appeal against sentence and against conviction.

The appeal against conviction was dismissed and

leave to appeal against sentence was refused.

There is now an application to this Court for

special leave to appeal against the decision of the

Court of Appeal, that application relating both to

the conviction and the sentence imposed and to

which reference has already been made.

It is well settled that the power of this

Court to grant bail is a power which comes from the

Court's inherent jurisdiction and is thus

necessarily to be exercised on the basis that its

exercise is necessary in the interests of justice

or is necessary to preserve the subject-matter of

the proceedings.	It has been said by reference to
those considerations that bail will only be granted

in exceptional circumstances.

In this case, it appears that an application for special leave to appeal can be heard in

Brisbane later this month. It seems to me that

there is no basis on which it can be said that the

application for special leave to appeal, so far as

it relates to conviction, will relevantly be

rendered futile or substantially so if bail is not

granted in the interim.

There is, however, a·subsidiary argument which

is put on behalf of the applicant by reference to

the application for special -1eave to appeal so far

as it relates to sentence. The reluctance of this

Coco 23 2/6/93

Court to intervene in sentencing matters is well

established and I say no more on that subject by

reason of the fact that the application is yet to

be determined. However, it does not seem to me

that in the circumstances of this case the
application for special leave to appeal against

sentence is such as to justify the grant of bail

pending its hearing.

The bail application is thus refused.

MR FRAZER: If the Court pleases.

AT 3.06 PM THE MATTER WAS ADJOURNED SINE DIE

Coco 24 2/6/93