Doggett v the Queen B54/2000

[2000] HCATrans 667

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 THURSDAY, 2 NOVEMBER 2000, AT 4.29 PM

(Continued from 1/11/00)

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Weston, you are going to try to assist me.

MR WESTON:   Yes, thank you, your Honour.  If your Honour pleases, I have taken instructions from the Director about the Crown’s attitude.

HIS HONOUR:   Yes.

MR WESTON:   After discussion it seems that it is really difficult to advance the matter much beyond what I was submitting before you yesterday, that is, the Crown’s position is that a grant of bail, at this stage, may be seen as treating the verdict of guilty by the jury as being provisional.  That submission is made, of course, fully cognisant of your Honour’s own judgment in Marotta v The Queen that to grant bail, unless exceptional circumstances are fully justified, may be seen as investing the mere grant of special leave with greater significance than it really warrants.

Thirdly, the Crown position is simply this, that the great balance of authority is that bail should not be granted to persons in the applicant’s position unless truly exceptional circumstances are shown.  That being so, the Crown really is duty bound to oppose bail unless those exceptional circumstances are justified.  Yes.  I do not think I can assist your Honour any further on that point as to the rationale, as it were, for the Crown’s opposition to the grant of appeal bail.

HIS HONOUR:   All right, thank you.  Mr Weston, when, but for the reasons that we discussed yesterday, would the applicant be eligible for consideration for work release?

MR WESTON:   From memory his parole date was 1 September 2001.  He is eligible for release on home detention, if I remember correctly, on 1 May 2001.

HIS HONOUR:   That is home detention, but perhaps, Mr Rafter, you may have some ‑ ‑ ‑

MR RAFTER:   The date of eligibility of release to work is 30 November.  Of course, the material before your Honour is to the effect that he has not applied for that, does not intend to apply for it and there are significant reasons for that, of course.

HIS HONOUR:   Well, the reason, as I understood it, was the risk of brutality by other prisoners.

MR RAFTER:   The risk of brutality.  That is right.  The prison service cannot give the same level of protection to an offender serving a sentence for offences of this type in the release to work program.

HIS HONOUR:   All right.  I do not think you dispute that, Mr Weston, do you?

MR WESTON:   No, we cannot, no.

MR RAFTER:   And there was the further obstacle that my learned friend accepted by reason of his non‑admission of the offences.

HIS HONOUR:   The Suresh point.

MR RAFTER:   Yes, I am not suggesting that necessarily would be decisive in the view of the Commission but it was a factor that was specifically drawn to the attention of my learned friend.

HIS HONOUR:   And I do not think Mr Weston disputes it as a factor.

MR RAFTER:   He does not.

HIS HONOUR:   He says, of course, that none of these factors, either alone or in combination, justify a grant of bail.

MR WESTON:   That is the Crown position, yes.

HIS HONOUR:   But the factual matters you do not dispute, Mr Weston?

MR WESTON:   No, I do not dispute them.  Indeed, the information that I have received tends to confirm what my learned friend has said about those matters, yes.

HIS HONOUR:   First said, yes.  Is there anything further you want to say?

MR WESTON:   No.  Anything else would be merely repetition of the matters I have already advanced before the Court.

HIS HONOUR:   Right, thank you.  Thank you for obtaining that information too.

MR WESTON:   Thank you, your Honour.

HIS HONOUR:   Mr Rafter.

MR RAFTER:   There is not much more I can add.  It does seem the general approach is really taken for historical reasons and it seems to be reflected, not just in judgments of this Court, but I notice in Ex parte Maher, a case that your Honour would be reasonably well familiar with, those comments of Justice Brennan in Chamberlain were repeated and one of the comments of Mr Justice Thomas was that the spectacle of a recently sentenced man walking free may be seen by the public as equivocation by the courts and does not tend to foster respect for the system.

HIS HONOUR:   But that is a means.  I mean, you cannot make the means ends.

MR RAFTER:   And, of course, in appeals of this ‑ ‑ ‑

HIS HONOUR:   I do not see how you can respect a system that puts incarceration of a person who, ultimately, might turn out to be acquitted as being in the public interest.  I just do not understand it.  Now, it might well be that he will not be acquitted.  It might well be that he will not even get a retrial.  It might be that he will get a retrial and he will be found guilty again, but I think, and my inclination is, with respect to that matter, that it does nothing for the system of justice that somebody might be locked up – might turn out to have been locked up when that should not have happened.

MR RAFTER:   Yes.  Well, there are, in the applicant’s submission, very different considerations at this level compared to the State Appeal Court level where one would ordinarily expect an appeal to come on much sooner.

HIS HONOUR:   Yes, that is right.

MR RAFTER:   In this instance, from the date of conviction, which was June 1999, to the date of hearing of the final appeal, which appears likely to be February 2001, there is a very significant passage of time and in Maher’s Case Mr Justice Thomas set out some of the reasons that would ordinarily be seen as justifying a grant of bail.  I actually have a copy of this for your Honour if your Honour would like to see it.

HIS HONOUR:   No, I do not.

MR RAFTER:   Under the heading “Short sentences”, which is the most common ground for allowing bail pending an appeal, his Honour said in some cases an appellant may inevitably be required to serve an unacceptable portion of his sentence before his appeal can be heard.  The applicant’s submission here is, although this could not be described as a short sentence, four and half years, an unacceptable portion will be required to be served before final judgment in his appeal.

HIS HONOUR:   Yes, all right. 

MR RAFTER:   Thank you, your Honour.

HIS HONOUR:   Nothing further then?

MR RAFTER:   No, thank you, your Honour.

HIS HONOUR:   I am in a position to give judgment.  This is an application for bail in a case in which the applicant has been granted leave to appeal from a decision of the Court of Appeal of Queensland affirming his conviction on seven counts.    

1.        Indecent dealing  3 years

2.        Indecent dealing  3 years

3.        Indecent dealing  3 years

4.        Attempted rape  4½ years

5.        Attempted rape  4½ years

6.        Indecent dealing  2 years

7.        Indecent dealing  2 years

The applicant is serving three concurrent terms of imprisonment.  I applicant was sentenced to three years imprisonment on counts one to three; four and a half years imprisonment for counts four and five; and two years imprisonment for counts six and seven. 

Subject to two matters, which I will later discuss, he would be eligible for consideration for work release at the end of November this year and for parole on the first day of September next year.  The applicant’s only grounds of appeal relate to the omission of a direction by the trial judge of the kind held by this Court to be appropriate in Longman and recently discussed in Robinson.  No request for such a direction was made at the trial.

The case against the applicant included a recording of a telephone conversation between the complainant and him in which he made what the jury might have taken to be some admissions of the complainant’s allegations against him.

It is clear that the applicant has an arguable appeal, otherwise no grant of special leave would have been given.  His appeal will not be heard before February 2001 and any decision on it could well be reserved after the hearing for some time.

The appellant has met his conditions of bail in the past and it is not suggested that he would default if he were to be granted bail again now.  He is married and would resume cohabitation with his wife were he to be released.  He has been offered a job to which he can immediately go.  All of these and some observations that I made in what I consider to be a somewhat different situation in the cases of Marotta and Others v The Queen the applicant relies on as grounds for a grant of bail here.

The first of the two matters to which I earlier referred is this.  In fact, the applicant is unlikely to be permitted to join the work release program because, as a sex offender in relation to a child, he would be at serious risk of injury at the hands of other prisoners.  The second is that he might be denied access to the program and his parole delayed because he has not admitted his wrongdoing.

In considering these two matters I do not overlook that the administration of the penal system, including admission to work release programs and parole, is, subject to all relevant legislation and regulation, a matter for the Executive.  I keep in mind also that it is a matter for the Executive in what manner public funds are to be disbursed on programs, competing public demands and in confining and protecting prisoners.  Nor do I overlook that the head sentence imposed is a highly relevant, indeed, a primary consideration.

Having said that, however, it would be unreal, as I suggested in Marotta, not to have regard to the likelihood or possibility of earlier partial release and parole.  By partial release I mean release from prison to work outside it.  It is a grave matter of concern to me that a person might not be allowed to participate in a rehabilitative program because the State, which has confined him and is responsible for his person, cannot protect him against brutality by other prisoners.  Prisons are unlikely to be pleasant or happy places.  Violent people, obviously, are numerous inside them.             People are sent to prison for many reasons, including, of course, to punish them but brutality by other prisoners is not, and should not be, whether as a result of toleration, implied condonation or inaction, part of the punishment.

The applicant’s exclusion from a rehabilitative program because of the risk to him on it from other prisoners is one factor in the circumstances of this case in favour of a grant of bail.  It is quite unreasonable and unrealistic, also, to deny a person with a pending appeal access to a program or parole because he has not admitted guilt.  I agree in this regard with the observations of Justice Kirby in Suresh. 

That, too, is a further factor in this case in the applicant’s favour in weighing up whether I should grant bail. 

During argument the respondent admitted that to grant bail was to treat the judge’s verdict as provisional.  I do not agree.  As I intended to convey in Marotta, it is punishment only that is suspended or interrupted.  The jury’s verdict stands until it is set aside.  No responsible juror should be disappointed simply because part of a sentence is interrupted whilst the High Court considers whether a convicted person has had what he was entitled to, a trial according to law.

I asked the respondent why it was thought to be in the public interest that a convicted person who had been granted the comparatively rare opportunity to appeal to the High Court not be allowed bail when there is no discernible risk to the complainant or the community, when he has a job to go to, he has observed conditions of bail before his convictions, the conditions currently proposed are suitable and some many months are likely to elapse before his appeal is decided.  I ask the question against the background that if, ultimately, he is acquitted he will have served a long, non‑compensable term of imprisonment unnecessarily, and access to a rehabilitative program may be denied to him for reasons beyond his control, that is, risk of brutality by other prisoners.

I asked what the underlying policy for opposition in such a case was and the respondent took time to consider my request.  The answer I was given was a repetition of no more than that it was not possible to say other than that a grant of bail would be to treat a jury’s verdict as provisional and that a grant of special leave was not, of itself, an exceptional circumstance and should not be seen to be so.

Of course, bail may not always be in the interest of an applicant after conviction.  His circumstances may change whilst he is on bail.  A return to incarceration after an unsuccessful appeal and at a time when all or most of his actual term of imprisonment would have been served may have far worse psychological and other consequences for a prisoner than uninterrupted service of his sentence.  No doubt few applicants would believe that but it is, nonetheless, likely to be so in many cases.

I have abstained from expressing a view on the applicant’s ultimate prospects.  It is inappropriate that I do so.  The decision that I make on this application should not be taken as expressing a view about that.  On balance ‑ the exercise is a balancing one ‑ I have formed the opinion that this is a sufficiently exceptional case to justify a grant of bail by reason of the considerations, particularly those to which I referred in discussing the policy said to underlie the respondent’s opposition to bail in a case such as this.

So, gentlemen, I am prepared to grant bail.  The question is:  on what conditions?

MR RAFTER:   There were conditions set out in the draft order which was attached to my written submissions.  I discussed that with my learned friend in advance of the hearing and my learned friend indicated to me that in the event of the bail application being allowed he was satisfied with the terms of the draft order which require the applicant to reside at the nominated address and require him to report to the Gladstone police three times a week, unless the Director of Public Prosecutions agrees otherwise, and further and importantly, not communicate with the complainant or any other prosecution witness and, on the date of hearing of the appeal, he surrender himself to the sheriff of the District Court in Gladstone.  The only variation to the draft order I supplied to your Honour is the dates of hearing and the date of the actual order.

HIS HONOUR:   Mr Rafter, the conditions – you do not have a problem with them, I understood, Mr Weston?

MR WESTON:   That is correct, your Honour.

HIS HONOUR:   Is there any amendment to them you would seek?

MR WESTON:   No, the Crown does not seek any amendment, your Honour.

HIS HONOUR:   Mr Rafter, there is one matter that does concern me, as will have been apparent.  I was influenced by, among other things, the fact that your client has a job to go to.

MR RAFTER:   Yes.

HIS HONOUR:   I do not have any original evidence before me from the employer that, in fact, he has a job, do I?

MR RAFTER:   I think that was actually in a letter exhibited to Mr Dearden’s affidavit.  I know that is not sworn to by the employer but the Crown did not take any issue with the material that we relied on.

HIS HONOUR:   No, but I am wondering whether I should impose a condition of bail that he take up and carry out the position.

MR RAFTER:   I would have no objection to that being ‑ ‑ ‑

HIS HONOUR:   Because I might well have taken a different view of the matter if he could not have been self‑supporting.

MR RAFTER:   Since it is a matter of such significance ‑ ‑ ‑

HIS HONOUR:   But I do not want to interfere in adversary proceedings, but what do you think about that, Mr Weston?

MR WESTON:   Well, it is true the Crown has not objected to that and I have accepted what is contained in the affidavit of my learned friend’s instructing solicitor.

HIS HONOUR:   Of course, and quite properly so, but, I mean, you are not bound by that, if I might say so, rational response to what has been put before the Court.

MR WESTON:   Yes.

HIS HONOUR:   Not to press what might appear to be a reasonable condition if you think it is.

MR WESTON:   Yes.  It may be the case that my learned friend might be able to get proper evidence of it overnight.

HIS HONOUR:   I would not be concerned about that.  I mean, I would just impose a condition of bail and if that condition is not satisfied, then he does not get bail and it might be that if that condition cannot continue to be satisfied he would have to come back to the Court.

MR WESTON:   Yes.

MR RAFTER:   The matter may have to be reconsidered.  Of course, if the company went into liquidation, that would be a different question.

HIS HONOUR:   Of course.

MR RAFTER:   If he decided to absent himself from the company, then that would be likely to result in his bail being revoked.  I do not mind adding to the draft order of the condition that ‑ ‑ ‑

HIS HONOUR:   I think it is only fair that it be that way, but I certainly will not do it if you do not want me to do it, Mr Weston.

MR WESTON:   No, in the circumstances, I think it is appropriate.  It does seem to have weighed in your Honour’s final decision, so it would be appropriate perhaps, yes.

HIS HONOUR:   Together with the other factors.  I would not like it to be thought that just because a person has a job to go to he is going to get bail.

MR WESTON:   No, certainly not.

HIS HONOUR:   It is a combination of all the factors, as it was in Bull and Marotta.

MR WESTON:   Yes, quite so.

HIS HONOUR:   That should be clear.  Well, Mr Rafter, who is that position with?

MR RAFTER:   It is with Meanderlyn Pty Ltd.

HIS HONOUR:   Meanderlyn.  Well, is that correct?  Bail should be then on the conditions set out in the applicant’s submissions, to which the respondent raises no objection, and upon a further condition that the applicant take up, within seven days of his release, and continue to engage in the employment offered to him by Meanderlyn Pty Ltd until further order.  That would cover that condition, I think, Mr Weston.

MR WESTON:   Yes, it would, thank you.

HIS HONOUR:   Anything further, Mr Rafter?

MR RAFTER:   No, your Honour.  Should I place a further draft order with the ‑ ‑ ‑

HIS HONOUR:   Yes, perhaps I had just better have a quick look at those conditions.

MR RAFTER:   I started writing something which was not quite exactly what your Honour said but I will just delete that.  My instructing solicitor has written out that further order as indicated by your Honour, so the draft order I am handing up is with the original conditions in it.

HIS HONOUR:   Thank you.  Yes, you can have that back.

MR RAFTER:   Thank you.

HIS HONOUR:   Thank you.

AT 4.45 PM THE MATTER WAS CONCLUDED