Doggett v The Queen

[2000] HCATrans 491

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B54 of 2000

B e t w e e n -

GRAHAM HENRY DOGGETT

Applicant

and

THE QUEEN

Respondent

Bail application

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 1 NOVEMBER 2000, AT 10.29 AM

(Continued from 31/10/00)

Copyright in the High Court of Australia

MR RAFTER:   I appear for the applicant again, your Honour.

CALLINAN J:   Yes.  Do you want to make any submissions on the basis of the guidelines in relation to any other matter, Mr Rafter?

MR RAFTER:   Only very briefly, your Honour.  Sent through to your Honour’s associate with the kind consent of my learned friend, was a further affidavit by Mr Dearden yesterday, and I seek leave to read and file those further affidavits sworn 31 October.  This relates to the work release program and the fact that – perhaps that has not reached your Honour yet.

HIS HONOUR:   Yes, I have it.  I will read it, Mr Rafter.

MR RAFTER:   Thank you, your Honour.

HIS HONOUR:   Yes, I have read that.

MR RAFTER:   Well, all of the material tends to indicate that work release is unlikely, in fact.  One further obstacle to the grant of any early release program in this case is the refusal by the applicant to admit the so-called wrongdoing, naturally, in view of the fact he pleaded not guilty and is appealing the matter.  That sort of approach has been criticised by Justices Kirby and Hayne in Suresh, in considering parole matters.

HIS HONOUR:   It strikes me as rather unfair at the outset if a person ‑ ‑ ‑

MR RAFTER:   Yes.  All one can do at this point on the material we have is to point to some anecdotal information.  I think my learned friend supports the proposition that refusal to admit the offences can be an impediment to the grant of early release.  That is not to say that it is impossible at all.

HIS HONOUR:   Could I see Suresh?  Do you have Suresh there?

MR RAFTER:   Yes.  Beginning at paragraph 59 in Justice Kirby’s judgment and Justice Hayne made some observations about the same matter.

HIS HONOUR:   Yes, I see what Justice Hayne says here:

At least where appellate proceedings are outstanding, it may be hoped that some means will be found to relieve prisoners of the obligation to make such an admission, assuming it is indeed required and, if it is, that it is lawful.  Enforced admissions of guilt, as the effective price of liberty, are not normally a feature of criminal justice in Australia.

MR RAFTER:   Exactly.

HIS HONOUR:   It is difficult, with respect, to disagree with that, is it not?

MR RAFTER:   Exactly, yes, I support those observations.  Of course, I am not in a position here, on the material before your Honour, to submit that the Queensland Corrective Services Commission would deny parole, home detention, or work release, or any other form of release, on these grounds, but it is a factor and ‑ ‑ ‑

HIS HONOUR:   Is there a regulation or a guideline that says they have to admit they are guilty?

MR RAFTER:   Well, it is not referred to in the ministerial guidelines that were provided yesterday by my learned friend.

HIS HONOUR:   Who has decided that this is a relevant consideration?

MR RAFTER:   Well, one assumes one factor to be taken into account is risk of reoffending and so forth, and the approach might be that a person who has been found to have committed offences and will not face up to having done so is a risk of reoffending.  I suppose that is the possible rationale but, as was observed in Suresh, where there are appellate proceedings on foot, there are complications, of course, and, as I say ‑ ‑ ‑

HIS HONOUR:   It is impossible.

MR RAFTER:   ‑ ‑ ‑ I am not making the submission in this case that it is impossible to get early release on such grounds, or what weight that would be given in Queensland, but your Honour can see from the further affidavit of Mr Dearden, there are serious impediments to early release in this case.

HIS HONOUR:   Including ones for his own protection.

MR RAFTER:   Yes, that is right.  He is now in the position where ‑ ‑ ‑

HIS HONOUR:   What sort of a penal system do we have when those who are supposed to confine the prisoners cannot or do not protect them?

MR RAFTER:   They may answer that their means of protecting them is restricted by the other considerations, budgetary and so on.

HIS HONOUR:   Well, I do not know what they are.  I mean, people are not sent to gaol to be brutalised by other people.

MR RAFTER:   Quite.

HIS HONOUR:   I really find that suggestion very offensive, that they cannot be protected.  It is the duty of the authorities to confine them and to protect them, not to tolerate brutality in any form.  It might be difficult to prevent it in that sort of environment but, surely, it is not impossible.

MR RAFTER:   One would think it could not be impossible.  The prison service ‑ ‑ ‑

HIS HONOUR:   You hear about it all the time and that is what – really, I find it very distressing.  I mean, they are in the control of the State.  The last thing the State should be doing is not protecting them.

MR RAFTER:   Even in the secure environment of the prison, one hears anecdotally of brutality on prisoners.

HIS HONOUR:   That is what I am talking about.

MR RAFTER:   That is obviously – there are greater difficulties if one is in a less restrictive environment that the work release program seems to have in operation.

HIS HONOUR:   What do you say about that, Mr Weston?  It is a pretty frightening concept that a person might not qualify for a particular program, and I leave aside other considerations.  There might be other good reasons why a person does not qualify, but one reason why the person cannot qualify is because the State either cannot or will not protect him.

MR WESTON:   Well, I cannot dispute that fact.

HIS HONOUR:   Well, how do you justify it?

MR WESTON:   It cannot be justified.  All I can really say is that appears to be the case as it is now and it has to be taken into account by the Court.

HIS HONOUR:   Why does not the State do something about it?  Why does not the Executive do something about it?  I think it is a very bad prospect.

MR WESTON:   Yes, I respectfully agree with what your Honour is saying but, nonetheless ‑ ‑ ‑

HIS HONOUR:   It fills you with revulsion, the idea that people are confined, supervised by the State, but not protected.

MR WESTON:   Yes, it does, yes.

HIS HONOUR:   Mr Weston, you remember I asked you yesterday whether you could assist me with the underlying rationale for opposition by the State to release on bail of a person who has an arguable pending appeal?

MR WESTON:   I do not think I can advance my submissions any further than those of yesterday in that the rationale would be that a person’s conviction must be upheld unless and until the relevant Court of Appeal overturns it.  The mere fact that the appellant may have an arguable case or, indeed, has been granted special leave by the High Court, in itself, would not be sufficient to ‑ ‑ ‑

HIS HONOUR:   But why is that so?  I mean, I know you tell me that, I know you submit that and I know also that it has been said in some of the cases and you are repeating that, but nobody seems to have got at the underlying rationale for this.  Say the appeal succeeds ‑ and I am not saying it will – it might not succeed.  There are all sorts of ways in which it might fail, but if it were to succeed and if he were to be granted a retrial and then be acquitted, if that were to happen, he would have served ‑ ‑ ‑

MR WESTON:   Somewhere between 20 to 27 months of his sentence.

HIS HONOUR:   Well, that is really a horrifying prospect, that somebody might have served a very long term of imprisonment for which there is no mechanism for compensation ‑ ‑ ‑

MR WESTON:   That is so, yes.

HIS HONOUR:   ‑ ‑ ‑ when he might turn out to be not guilty.  I am not expressing a view on it, you understand, but you can understand my concern about that.

MR WESTON:   Yes, and the respondent would submit that if truly exceptional circumstances are demonstrated, it would be appropriate to grant bail to the applicant.

HIS HONOUR:   If the statistics show that one in four or five applications for special leave in criminal cases only, succeeds, it looks rather exceptional, does it not?

MR WESTON:   Yes, but I would have to again repeat my submission yesterday, that the mere grant of special leave in itself ‑ ‑ ‑

HIS HONOUR:   But you are really, with respect, Mr Weston, only repeating what has been said in some of the cases.  I am trying to get behind that.  I am trying to understand.  I am trying to understand why that is so.  I mean, to talk of upholding the verdict, or falsifying the verdict by letting somebody out on bail, seems to me, with all due respect ‑ and I know it has been said in this Court ‑ to be a proposition that does not stand scrutiny, the reason being that the verdict stands and the punishment, consequent upon the verdict, will be imposed and, if it is imprisonment, will be served by an applicant.

MR WESTON:   Yes.

HIS HONOUR:   It is not as if, by being let out on bail, the applicant is going to be excused from doing anything.  I would think that having to go back into prison after having been released on bail would be a very unpleasant prospect.

MR WESTON:   Indeed, it may be a bit more onerous for the applicant.

HIS HONOUR:   Exactly, but that is what the applicant wants and, I suppose, hope is eternal.  But I really am interested in the rationale behind the Crown’s opposition to this.  Would it assist you if you had instructions on it?  I really want to know because I do not understand it and it does not assist me simply to have repeated what you have said.  Now, I am not being critical of you for that because I know you are repeating what has been said in the cases, but I want to know what the underlying rationale is and, frankly, I find it very difficult to deal with this case unless I know that.

MR WESTON:   Well, if I might say this, I did, in fact, speak to the Director about this matter yesterday afternoon and your Honour’s question about the rationale was discussed between us and the conclusion that both of us reached was, essentially, what I said to you yesterday.

HIS HONOUR:   But that does not really assist me.  You can see why it does not assist me.  It is a repetition of something that has been said but it does not explain why it has been said.  Is it not correct, what I put to you, that the verdict stands until it is actually set aside?

MR WESTON:   That is correct, yes.

HIS HONOUR:   Is it not also correct that all that happens is that the punishment is interrupted.

MR WESTON:   Yes, suspended, perhaps, yes.

HIS HONOUR:   All right, suspended, interrupted, but what public interest is damaged when that happens?

MR WESTON:   The only public interest that I could submit would be that it might be respectfully giving the idea of a grant of special leave ‑ ‑ ‑

HIS HONOUR:   A special significance?

MR WESTON:   Yes, a greater significance than it really warrants because it does have that effect of interrupting or suspending the lawful punishment of the ‑ ‑ ‑

HIS HONOUR:   But why should it not have that significance?  It means that the person has an arguable case.

MR WESTON:   It does, but merely because one has an arguable case in itself really does not mean that, of course, one is guaranteed of being successful.

HIS HONOUR:   No, quite.  Quite a lot of appeals fail, I understand that.

MR WESTON:   Yes, and if that is so, to interrupt or suspend the punishment that has been meted out to the applicant may be seen or may be construed as suggesting that it does have that greater significance, that it does have some greater merit than a mere grant of leave, that, in fact, it seemed that the applicant has some extremely good prospects of success.

HIS HONOUR:   Well, what harm is there in that?  I mean, somebody might see it that way.  An informed person might see it in the way that it actually happens:  sometimes the appeals succeed and sometimes they fail.

MR WESTON:   That is true, yes.

HIS HONOUR:   It does not mean any more than that, does it?  I do not understand why the community, why a reasonably informed person in the community, would object to the release on bail of a person who has an arguable appeal to the High Court, given the relative rarity of a grant of special leave.

MR WESTON:   I do not know if I can really answer that question.  One of the problems is, of course, that the number of persons who do get special leave, where their terms of imprisonment are relatively short, would be in a very small minority.  It is often the case that persons are serving terms of life imprisonment or other long sentences, so the issue never arises.

HIS HONOUR:   That makes it worse, does it not?  It just means that the person might have served longer if he or she is ultimately acquitted.

MR WESTON:   Yes.

HIS HONOUR:   How long has it been since this man was tried?

MR WESTON:   I will just turn that up, your Honour.  1 June last year, he was sentenced.

HIS HONOUR:   If he were to be granted a retrial, which would be the more likely order, if he were to succeed on his appeal, I think, there would really be no basis then for not releasing him on bail would there?

MR WESTON:   No.

HIS HONOUR:   You would not oppose bail in that situation?

MR WESTON:   No, I would not oppose it.  The man, as I understand it, had been on bail at all times prior to his conviction.

HIS HONOUR:   By that time he probably would have served almost two years.

MR WESTON:   That may well be the case, yes, if judgment is not handed until ‑ ‑ ‑

HIS HONOUR:   I have checked, by the way, it is very likely that the appeal will come on in February.

MR WESTON:   Yes.  If the judgment is not handed down till May or June, it will be almost two years, yes.

HIS HONOUR:   I think, in a case like this you probably would get a judgment in two or three months.

MR WESTON:   Yes.

HIS HONOUR:   You might even get one much earlier if the Court were minded to uphold the appeal.  But, Mr Weston, I really do not know what to do about this case.  I accept the force of what you say, that one has to be careful about not giving bail lightly simply because there has been special leave.  My big problem is the one that I am just not assisted on and that is, why is this really so?  I mean, what you have pointed to is the sort of misconception that people might have, but they would only be uninformed people, what the grant of bail would do.  Does this man represent any risk to the complainant or to any of the witnesses, or associates of the complainant, or any of the witnesses?

MR WESTON:   No, there is no evidence of that.  In fact, in the draft order which my learned friend has shown me, there is a no contact provision, that is, no contact between the applicant and the relevant witnesses.

HIS HONOUR:   Was there any problem pending his trial in this regard?

MR WESTON:   Not that I am aware of, no.

HIS HONOUR:   You do not think that after further discussions with the Director you could assist me any more on the question that is troubling me?

MR WESTON:   I can speak to – some assistance may be gleaned.

HIS HONOUR:   It would be helpful.  This may not be the first time that there is an application of this kind made.

MR WESTON:   Yes.  In the cases I have seen, I am unaware of any discussion on this point that your Honour has raised.

HIS HONOUR:   I do not think there is, Mr Weston, and it is a point that has always been at the back of my mind.  I have not been a Judge for very long, I hasten to say, but it is a problem that has crossed my mind in the past and I am rather anxious to find an explanation for it.

MR WESTON:   Yes.  The situation seems to be, as I have already submitted, that merely in the reported cases, that it has been considered such an extreme step that ‑ ‑ ‑

HIS HONOUR:   Yes.  I mean, you say it has been considered such an extreme step.  What is extreme about it?  What is the State’s interest in keeping the person locked up during this period when there is no suggestion that he is going to endanger anybody and there is no suggestion that there is any problem about reincarcerating him if the appeal fails?

MR WESTON:   I can merely say there seems to be an historical reason that the State always opposes applications for appeal ‑ ‑ ‑

HIS HONOUR:   That is what worries me.  It is really what worries me, Mr Weston, that there is an historical basis for doing it.  In other words, it is being done simply because it has been done in the past.  I am not being critical of you, you understand that?

MR WESTON:   Yes, I understand that.

HIS HONOUR:   You are carrying out instructions.  But that is the matter that does really concern me, that, in a sense, this ends up being done by rote.  It has been done before so we will keep on doing it.

MR WESTON:   Yes.

HIS HONOUR:   Would it assist you if you had some more time?  I am looking for assistance.  If you thought that you might be able to tell me why this is so ‑ I mean, obviously it is a policy, in effect, to oppose it, and I do not mean that in any offensive sense, but there is a policy to oppose it and I would like to know what the basis for the policy is.

MR WESTON:   Very well.  It may assist if I did have further time to take full instructions, if your Honour would grant me that indulgence.

HIS HONOUR:   Yes.  Well, Mr Rafter, you could not be opposed to that?

MR RAFTER:   No, of course not, it seems like a good idea to me too.

HIS HONOUR:   Unfortunately, even sitting as a single Justice and exercising a discretion, what I do or decide here is probably going to be quoted elsewhere, and the fact that it is the exercise of a discretion in a particular case tends sometimes to be overlooked.

MR RAFTER:   Yes, well, that is happening here now where ‑ ‑ ‑

HIS HONOUR:   Exactly, with Bull and Marotta, which you very properly conceded was a case on its own facts, although you thought there were statements in it which assisted you, as, indeed, there are.

MR RAFTER:   Yes.  Your Honour, it is not just the grant of special leave though on its own, that probably could never on its own be enough.  The cases say that and I accept that but ‑ ‑ ‑

HIS HONOUR:   Well, they are only single Justice cases, are they not?  Has the Full Court ever said that?

MR RAFTER:   No, but it is a combination of circumstances, which was your Honour’s approach in Marotta, and here they include the length of the sentence, the length of the period likely to be served before the appeal will actually be heard ‑ ‑ ‑

HIS HONOUR:   I have to tell you, Mr Rafter, that I was impressed by the legal point they had in Bull and Marotta.

MR RAFTER:   I understand that.

HIS HONOUR:   That is not to say that you may not have a very good, or equally good, legal point.

MR RAFTER:   Well, your Honour’s view about that was vindicated in the judgment of the Court.

HIS HONOUR:   Well, in the end, it was.  I did not know that that was going to be so, of course, but I did form a view that – I will not say that it was a knock‑out point, but it was a very good point, and that there was the problem about the application of some of the provisions in that Act.  I think there are similar provisions in a lot of other States.

MR RAFTER:   Yes.  Well, I can understand that, and there was the dissenting judgment in the Court of Criminal Appeal that perhaps would support ‑ ‑ ‑

HIS HONOUR:   Yes.  It was a very persuasive judgment, the dissenting one.

MR RAFTER:   Yes.  I appreciate we do not have that here, however ‑ well, I have said it already ‑ the case is arguable and the course of proceedings on the special leave hearing tend to support that in that my submissions were interrupted before I exhausted my full 20 minutes and the Crown was called upon and, if I recollect, occupied pretty well the whole of the allotted time and I was not called on further.  So, at the least, the Justices hearing the special leave hearing in this matter, by the approach to the matter, seemed to indicate there was some substance to the matter.

HIS HONOUR:   It can be very dangerous to infer too much from exchanges on special leave applications.

MR RAFTER:   Well, quite, but anyway it is ‑ ‑ ‑

HIS HONOUR:   Often when the case is fully laid out, you can take an entirely different view.

MR RAFTER:   The grant of special leave itself demonstrates there is an arguable point and that is common ground in the case, of course, but naturally I do not oppose the notion that the matter be stood down to allow my learned friend to seek some instructions and perhaps I might think about the matters that your Honour has raised as well to see if I can be of any further assistance, but there can be difficulties when, really, what is being relied upon are statements in judgments, usually short judgments, naturally enough, on grants or refusals of bail.

HIS HONOUR:   Well, the statements do not really explain the underlying reason for it.  It is not a proposition of law.  It is really a proposition of policy to say that it falsifies the jury’s verdict.  It is just one policy view of the consequence.

MR RAFTER:   I think Chief Justice Brennan used the expression that a grant of bail would treat the jury verdict as “provisional”.

HIS HONOUR:   I thought I took a different view.  In Bull and Marotta, I do not think it does that at all.  The verdict stands until it is set aside.  It is its consequences that are suspended or interrupted.

MR RAFTER:   Quite, and the applicant remains liable to serve the unexpired portion of his or her sentence and, in a case like this, it can end up being more onerous on the applicant if the appeal ultimately fails, to have been out on bail for several months and then have to return to custody, then his home detention date and his ultimate release date is further deferred.  The applicant here obviously desires bail but the grant of bail, if the appeal fails, is fairly onerous.

HIS HONOUR:   Mr Weston, how long do you think you might need?  I am not pressing you.  If you want a couple of days, or a week, or whatever you want.  The Director is, no doubt, very busy and she may want to think about it as well.  I think it is quite important.  I think this may come up in future cases, do not you?

MR WESTON:   Yes, it will do, yes.

MR RAFTER:   If I might just approach my learned friend, your Honour.

MR WESTON:   Could I ask until perhaps some time tomorrow, your Honour?

HIS HONOUR:   There is plenty of time, Mr Weston.  You can have as much time as you like.

MR WESTON:   Thank you.

HIS HONOUR:   What time tomorrow?  I mean, would you prefer Friday?  It does not matter to me.  What are your commitments, Mr Rafter?

MR RAFTER:   Well, I have a bail application, oddly enough, in the Supreme Court tomorrow morning, but I expect I will be able ‑ ‑ ‑

HIS HONOUR:   You do not know what time that will get on, I suppose?

MR RAFTER:   Bail applications in the Supreme Court are generally dealt with first in the list, so I would expect I would be available ‑ ‑ ‑

HIS HONOUR:   Why do not the two of you ring my associate tomorrow and if I cannot fit you in tomorrow, we will do it on Friday, at some time that is convenient.  Have you a commitment?

MR RAFTER:   Friday is more difficult for me because I have a committal proceeding which will occupy most of the day.

HIS HONOUR:   Mr Rafter, we could do it at 4.30 or something like that.  I will meet your convenience, but perhaps if both of you can ring my associate.

MR RAFTER:   I expect I should be available from mid‑morning onwards tomorrow, your Honour.

HIS HONOUR:   I am just not too sure what my commitments are after that time.

MR RAFTER:   I can always adjust mine to fit in with your Honour’s convenience.  That is obviously the normal ‑ ‑ ‑

HIS HONOUR:   I will make a time that is convenient for both of you, if you ring me.  If you need more time, Mr Weston, you let me know.

MR WESTON:   Yes, thank you, your Honour.

HIS HONOUR:   All right.

MR RAFTER:   Just before your Honour formally adjourns, I have the original of that further affidavit that was sent through by facsimile.  Perhaps I should undertake to have that filed in the Registry or would it be more suitable to hand it to your Honour’s associate now?

HIS HONOUR:   File it in the Registry, I think, is more convenient.

MR RAFTER:   Thank you.  I will have that done straightaway.

HIS HONOUR:   There is a defect in form in your affidavits.  Deponents are supposed to say that they believe what they have been told to be true.  It is quite important really ‑ it focuses their minds on the material ‑ but no point is taken on that.  All right, we will adjourn until a time to be fixed.

AT 11.02 AM THE MATTER WAS ADJOURNED