Dunstan v The Queen

[2004] HCATrans 41

[2004] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Registry  No C13 of 2003

B e t w e e n -

COLIN GEORGE DUNSTAN

Applicant

and

THE QUEEN

Respondent

Application for bail

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MARCH 2004, AT 9.23 AM

Copyright in the High Court of Australia

MR R.C. REFSHAUGE, SC:   May it please the Court, I appear for the respondent.  The applicant is in custody in New South Wales and I do not anticipate that he will be present.  (instructed by Director of Public Prosecutions (ACT))

HIS HONOUR:   This is an application for bail by the applicant, is that so?

MR REFSHAUGE:   It is, your Honour.

HIS HONOUR:   Can you just confirm some of the facts as I understand them to be.  His term of imprisonment for the federal offences has been served, is that right?

MR REFSHAUGE:   Your Honour, the position is that he was charged with a number of offences under the Crimes Act (Cth) and also offences under the Crimes Act (ACT).  He was found guilty of a number of those and was sentenced first in respect of the Territory offences to periods totalling nine years imprisonment.

HIS HONOUR:   Has that term of imprisonment expired?

MR REFSHAUGE:   That term has not expired.  He was then sentenced to terms of imprisonment for the Commonwealth offences, and that cumulated to five years and that term has expired.  They were made concurrent.

HIS HONOUR:   With respect to the unexpired term, he becomes eligible for parole next month, is that correct?

MR REFSHAUGE:   On 25 May this year.

HIS HONOUR:   No decision has been made whether he will be paroled or not, is that correct?

MR REFSHAUGE:   That is so, your Honour.  I understand that the Sentence Administration Board, which is the title for the Parole Board in the Territory, has commenced consideration of that matter, but whether it will grant parole on that day or not has not been determined.

HIS HONOUR:   You oppose bail?

MR REFSHAUGE:   I do, your Honour.

HIS HONOUR:   Why?

MR REFSHAUGE:   Because, in our submission, there are no special circumstances or exceptional circumstances that would justify a grant of bail.  Whilst the actual custody is at best likely to expire before a special leave application could be heard, nevertheless the circumstances are that the prisoner was imprisoned on 25 May 2001 and there has been plenty of time within which this issue could have been agitated if he so wished.

HIS HONOUR:   He would be well out of time.  He will need leave, will he not, to pursue his application for special leave?

MR REFSHAUGE:   Your Honour, perhaps I should go back a little and say this.  Following his conviction and sentence, he appealed to the Federal Court against conviction.  That appeal was dismissed.  He did not seek special leave to appeal to this Court against conviction following the dismissal of the appeal in the Federal Court.  He did not appeal against sentence.  Subsequently – last year, in fact – he issued a notice of motion directed to the sentencing judge suggesting that the sentencing judge had erred in imposing the concurrent sentences on an argument based in part on the Interpretation Act as explicated in Pearce’s Case, suggesting that there were the same acts or omissions that constituted both the Commonwealth and the Territory offences, and therefore the imposition of sentences in respect of both the Territory and the Commonwealth offences offended against that provision.  The sentencing judge dismissed the application principally on the ground that he had no power to revisit the sentence, that there was no power invested in him simply to recall the sentence and ‑ ‑ ‑

HIS HONOUR:   So it is the same point he wants to agitate now?

MR REFSHAUGE:   He then appealed to the Court of Appeal on that point and the Court of Appeal dismissed the appeal on the ground that the sentencing judge had no jurisdiction to recall and vary the original sentence.  It is that decision that he seeks to appeal to this Court.

HIS HONOUR:   But in any event the proper course would have been, after he was convicted and sentenced, to pursue his appeals then back in when, 2001?

MR REFSHAUGE:   2001 or later, and seek an extension of time.  That is possible and, if there was a real argument, it is unlikely that I would have opposed a reasonable extension of time.  So, in effect, what we are saying is that he is trying to get a backdoor extension, as it were, for the ordinary processes of appealing against sentence.  The issue before the Court is whether a single judge has power at any time during the course of the sentence to revisit the sentence.  That point may have some substance in the sense that it is based upon a section of the Interpretation Act which, in

effect, gives an entity which has power to make a decision a power to reverse that decision.

But that, of course, is subject to contrary intention, and we say there is plenty of contrary intention in the Supreme Court Act, that the process is in the ordinary course an appeal.  That is the short point, but in any event, the prospects of special leave are remote because, firstly, there are, we say, slim chances that that argument would succeed, but in any event, it is not the kind of point that would attract special leave ordinarily because it is the construction of a local piece of legislation that really has no substantial mirror elsewhere.

HIS HONOUR:   I never find that a very attractive argument, I have to tell you, because we are a final Court of Appeal; we are not just a Federal Court.  People sometimes overlook that.

MR REFSHAUGE:   I understand that, your Honour.

HIS HONOUR:   I know it has been said in the past.

MR REFSHAUGE:   It is a matter of priorities perhaps, and I do not necessarily say that is the strongest point.  The point we would say is the strongest is that there is no likelihood that the argument would have success.  My record on that is not so good either, your Honour, but that is a better argument at least, if I may be so bold as to say so.

HIS HONOUR:   Thank you for your assistance.

This is an application for bail pending the hearing of an application for special leave.  The applicant was convicted of offences in the year 2001.  He did not then, as he could have, pursue a path which would have enabled him to make his application for special leave following his conviction and sentence.  The point that he wishes to agitate on his application for special leave is one therefore that could and should have been argued in proceedings in that regard in 2001.  Accordingly, his application is in that sense brought very belatedly.

In his supporting material in respect of the application before me today, the applicant contends that he should be released upon bail in order to enable him the better to prepare his application for special leave.  The point which he wishes to argue, however, appears to be one purely of law and it is not easy to see how his release from imprisonment for a period would better enable him to prepare for the application.  It has generally been held in this Court in applications of this kind that in order for an applicant to succeed, he must not only demonstrate that he has some reasonable prospects of success in relation to his application for special leave but also that exceptional circumstances exist which would justify release from imprisonment ahead of the expiration of a sentence.  The applicant is unable to point to any special circumstances.

As to the strength or otherwise of the point which he wishes to argue on the special leave application, I need not express any opinion.  I would dismiss the application.

AT 9.34 AM THE MATTER WAS CONCLUDED