Director of Public Prosecutions v Ali

[2001] QCA 489

[2001] QCA 489

COURT OF APPEAL

McMURDO P
McPHERSON JA
CHESTERMAN J

Appeal No 9451 of 2001

THE DIRECTOR OF PUBLIC
PROSECUTIONS  Appellant (Respondent)

and

AKHMAN ALI  Respondent (Applicant)

BRISBANE

..DATE 07/11/2001

JUDGMENT

THE PRESIDENT:  The appellant, the Queensland DPP, appeals from the order of a Supreme Court Judge granting the respondent bail pending appeal.

Bail pending appeal can be granted under s.10(1) Bail Act 1980 (Qld) which relevantly provides:

"The Supreme Court or a Judge thereof may, subject to this Act, grant bail to a person held in custody on a charge of an offence or in connection with a criminal proceeding."

Criminal proceeding is defined in s.6 Bail Act as including

a "hearing, trial or appeal in relation to an offence".

The Bail Act has not changed the requirement that applicants after conviction are not lightly granted bail and that special circumstances are necessary to justify its grant: see Ex parte Maher [1986] 1 QdR 303 at 305, 309 and 314. An appeal lies to this Court from the order of the Judge of the Trial Division under s.69(1)(a) Supreme Court of Queensland Act 1991 (Qld).

The respondent was convicted in the District Court on
31 August 2001 of the offence of stalking and was granted bail pending sentence.  On 4 September 2001 he was sentenced to three years' imprisonment.  The trial proceeded against the respondent and his wife and it was alleged that both the female and male complainants were victims of both the respondent and his wife.  Only the respondent was convicted of stalking and only of the female complainant.

The learned sentencing Judge referred to the disastrous impact of the respondent's behaviour upon the female complainant and took a very serious view of the respondent's conduct which forced the complainant and her husband to attempt to sell their house and to build another.  After the police attended the respondent's residence and removed items used in the stalking, including spotlights and false video cameras, and charged the respondent with stalking he continued his offending behaviour whilst on bail.  He has a prior conviction for shoplifting in 1997.  He has completed a law degree and his articles of clerkship, but was not admitted as a lawyer.  The stalking continued from August 1999 until November 2000.  The sentencing Judge noted that the Crown case was very strong and it was difficult to imagine a worse case of neighbourhood stalking.  The respondent showed no remorse.  The learned sentencing Judge described the respondent as, "A consummate liar with no regard whatsoever for the truth.  A clever, intelligent, calculating liar." 

On 28 September 2001 the respondent filed a notice of appeal against conviction and an application for leave to appeal against sentence.  On 10 October 2001 he was granted bail pending appeal by the Supreme Court Judge.

The learned Supreme Court Judge was told the respondent would have to serve at least six months before his appeal was heard in March 2002 and appeared, at least in argument, to form the view that the respondent was unlikely on appeal to be required to serve an actual term of imprisonment of more than six months.

This Court in Ex parte Maher considered the circumstances which may justify the granting of an application for bail pending appeal, some of which are relevant here.  First is the chance of success on appeal.  The learned Supreme Court Judge did not regard the respondent's prospects of appeal against conviction as promising.  My preliminary view concurs with that assessment.  The Chamber Judge thought the respondent's prospects of success in appealing against sentence were good but, as I have noted, did not regard the case as one where a sentence of any less than six months actual detention at best was likely.

The second consideration is the nature of the offences.  There is nothing in the nature of the offences which were described by both the sentencing Judge and the Judge granting bail as serious examples of neighbourhood stalking.  This does not support the granting of the application. 

The third consideration is whether the respondent may be required to serve an unacceptable portion of his sentence before his appeal can be heard.  The Supreme Court Judge was told the appeal would not be heard until March 2002. 

I have made inquiries of the Senior Deputy Registrar Appeals who informs me that if the respondent were returned to custody his appeal in the ordinary course would be heard in about February or perhaps March 2002.  The prospects of the respondent receiving a sentence which would be served or largely served by the time any appeal could be heard are slight.  This consideration does not support the granting of bail pending appeal.

Further considerations in Maher, which it is not submitted are relevant here, were the unusual and lengthy trial and the need for the applicant to attend his solicitor's office to assist in the preparation of the appeal. 

The additional circumstances relied upon by the respondent and the Chamber Judge justifying the grant of bail were that custody was more difficult for him because the complainant's husband is a prison officer in Townsville.  He is therefore required to service his sentence at Lotus Glen which increases the separation and hardship involved for both him and his family.  The flaw in this argument is that that difficulty will remain a problem for the respondent whenever he is required to serve any term of imprisonment be it before or after the hearing of the appeal.  It is not suggested this problem will be remedied by any delay in the sentence.  Nor is the fact that the respondent is unlikely to flee, a circumstances in itself justifying the granting of bail pending appeal.

The final matter mentioned by the learned Supreme Court Judge was that the respondent does not pose a risk to the complainant or her husband if he were released on bail pending appeal.  Whilst this may be some comfort should bail pending appeal be granted, it is in itself no special circumstance warranting the grant of bail, but its absence would certainly militate against it.

Although conscious of the reticence in overturning a decision of a Judge based on discretionary considerations, a review of all the relevant matters clearly warranted the refusal of the application for bail pending appeal.  There are good reasons discussed in Ex parte Maher as to why bail pending appeal is not lightly given.

In my view the Judge's discretion miscarried.  I would allow the appeal and vacate the order of 10 October 2001 and instead order that the application for bail be refused.

McPHERSON JA:  I agree.  To what has been said I would add only this.  One cogent reason why bail is granted before trial is to enable an accused person to prepare for that trial.  It is obviously more difficult to prepare for a trial when one is held in prison. 

That factor ceases to be a consideration of much or any relevance after conviction, which is, I think, another reason why bail on appeal is considered exceptional.  There may be a good deal of preparation to be done in respect of this appeal having regard to the size of the record; but it is the kind of preparation that, in my view, can be done by the applicant for bail while he is incarcerated.  It is not a case, of course, where he needs to go searching for witnesses.  There is no application to call further evidence on this appeal.

I mention this simply to show or to suggest one further reason why bail in cases of appeal after conviction is, and rightly is, exceptional.  In my view this is not a case where any exceptional feature is shown in the material that went before the Chamber Judge in this instance.  I agree with the order proposed by the President.

CHESTERMAN J:  I agree with the order proposed by the President and with her Honour's reasons.

THE PRESIDENT:  The orders are as I proposed and in addition we should order a warrant for the arrest, should we?  Do you have any application?

MR LYNCH:  Would your Honour allow that to lie in the Registry for seven days to give him an opportunity to present himself?

THE PRESIDENT:  Yes.  I order a warrant issue for the arrest of Akhman Ali but direct it lie in the Registry for seven days.

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