Dunstan v The Queen

[2000] FCA 686

FEDERAL COURT OF AUSTRALIA

Dunstan v The Queen [2000] FCA 686

APPLICATION -

Crimes Act 1900 (ACT), s 19
Crimes Act 1914 (Cth), s 85X
Federal Court Rules, O 52 rr 35(3), 40

Chamberlain v R (1983) 153 CLR 514
Eastman v R (1997) 72 FCR 190

COLIN GEORGE DUNSTAN v THE QUEEN

A 28 of 2000

GALLOP, WILCOX and MARSHALL JJ

CANBERRA

19 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 28  of   2000

BETWEEN:	COLIN GEORGE DUNSTAN Applicant
AND:	THE QUEEN Respondent
JUDGES:		GALLOP, WILCOX and MARSHALL JJ
DATE OF ORDER:		19 MAY 2000
WHERE MADE:		CANBERRA

THE COURT ORDERS THAT:

1.Bail pending the appeal is refused;

2.The applicant be held at the Belconnen Remand Centre until 5 June 2000.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 28 of 2000

BETWEEN:	COLIN GEORGE DUNSTAN Applicant
AND:	THE QUEEN Respondent

JUDGE(S):	GALLOP, WILCOX and MARSHALL JJ
DATE:	19 MAY 2000
PLACE:	CANBERRA

EXTEMPORE REASONS FOR JUDGMENT

1. GALLOP J: This is an application for bail by Colin George Dunstan. He was convicted by a jury on 3 December 1999 of three counts of attempting to inflict grievous bodily harm, contrary to s 19 of the Crimes Act 1900 (ACT) and five counts of sending explosives through the post contrary to s 85X of the Crimes Act 1914 (Cth). He was sentenced on 26 April this year. On each of the charges under s 19 of the Crimes Act he was sentenced to three years imprisonment cumulative on each other. On each of the charges under s 85X of the Crimes Act he was sentenced to two years imprisonment, each concurrent with the sentences and charges under s 19 and with each other save for one of the charges under s 85X of the Crimes Act which was cumulative on the like charges but concurrent with the other.

2. So the effect of the sentences imposed was that the applicant was to be imprisoned for nine years with a non parole period of four years, both to commence from 25 May 1999.  This application for bail has to be considered in the light of the well established principles pursuant to O 52 r 35(3) which enables us to grant bail pending an appeal.  The authorities prior to Chamberlain v R (1983) 153 CLR 514 were all to the same effect that an applicant for bail had to show circumstances which were variously described as special or exceptional, words such as that.

3. In Chamberlain (supra), Brennan J, as he then was, reviewed the various authorities and it is unnecessary to go through the whole of his Honour’s judgment but at the end he said, in dealing with an application for bail by a person who had been convicted and was seeking special leave to appeal:

   “To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted.  But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately.  In a serious case, where the prisoner’s custodial sentence depends upon a jury’s verdict (as it does when there is a conviction for murder and there is no discretion as to sentence) an application for bail before the verdict is set aside is in substance an application to suspend the effect of the verdict.  To grant bail in such a case is to whittle away the finality of the jury’s finding and to treat the verdict merely as a step in the process of appeal.  The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.”

4. Those dicta have been followed by courts considering applications for bail pending appeal in a number of cases.  The most recently probably is a decision of Burchett J of this court in the matter of Eastman v R (1997) 72 FCR 190. Anyway, thus instructed, we have to consider Mr Dunstan’s application and whether he has established to the requisite standard that he should be granted bail. He relies upon a number of matters, as I understand it, but before I refer to those matters it is relevant that the appeal is in such a state that the index will be settled apparently on 25 May, that is next week. There will be a callover of the matter on 5 June and the appeal, accordingly, will probably be heard in August this year.

5. I have already indicated that the registry should take all steps necessary to waive compliance with rules to enable Mr Dunstan to get his appeal in order.  He wants to have his appeal heard as soon as possible.  It is in the interests of justice that his appeal be heard as soon as possible and there should not be any requirement for strict compliance with the rules in a case such as this.  The difficulties which he relies upon start with the fact that he was transferred, having been sentenced on 2 May this year, to the Goulburn institution which is within the New South Wales Corrective Services system, as are all prisoners sentenced in the Supreme Court of the Australian Capital Territory or the Magistrates Court. 

6. He had difficulties with his legal books and documents and they were not available to him.  In fact, he only got them back when he came back to the Belconnen Remand Centre yesterday and there were difficulties about this transport here to this Court for the purposes of preparing for this application but the corner stone of his application or the prongs of his application which he relies upon are that he wants to ensure that any anti-depressant medication and treatment with his psychiatrist for severe depression is available in the period up to the hearing of the appeal.  He wishes to do more to assist his wife in the work that she undertakes to progress the appeal as deposed to in paragraph 7 of his affidavit in support of his application. 

7. He wants to enlist the services of a chemist to examine the evidence given at his trial and to collate contradictory evidence and to make an application once the evidence is together to introduce fresh evidence on the hearings of appeal.  He is not very far advanced in that respect, having experienced difficulties at the Goulburn institution. He has not yet identified a chemist who is prepared to act for him.  As he said, the most he has been able to achieve so far with his wife’s help is that he has got somebody’s phone number. 

8. He complains about the material which was provided by the Commissioner of Police of the Australian Federal Police on subpoena and he asserts that he subjectively believes that he has good prospects of success and he argues that it is relevant in those circumstances to whether he is likely to abscond or not if granted bail.  He has made all sorts of assertions over a fairly lengthy submission to us about the perversion of the course of justice and the impact of comparing imprints of propellant used in one of the offences with other propellant.  He has also relied upon difficulties in communication by telephone from the Goulburn institution and difficulties in obtaining his anti-depressant medication or in seeing his psychologist - delays of four to five weeks were mentioned.

9. No one, I think, could doubt that when your liberty is taken away you are going to suffer difficulty in communicating with the outside world and that must be the experience of all prisoners in any institution.  But in my opinion, neither in any one instance or in respect of any one matter relied upon, the applicant, or in the aggregate, has the test of exceptional circumstances been proved and there is no basis upon which this Court could grant him bail pending his appeal.  I would therefore refuse the application. 

10. I have, however, considered whether this Court should make an order pursuant to O 52, r 40 of the Federal Court Rules that the applicant be held at the Belconnen Remand Centre until, he asks 5 June 2000.  I would think that it might alleviate his difficulties in communication very substantially and the other difficulties if that was acceded to.  And for myself, I would be prepared to make such an order, namely that he be held at the Belconnen Remand Centre until 5 June 2000. 

11. WILCOX J:   I agree and I agree with the reasons that have been given by the presiding Judge.  I think the principle that was annunciated by Brennan J in the Chamberlain case is one of considerable importance and it underlines the fact that bail ought to be granted after conviction in only the most exceptional circumstances.  One aspect that was raised by Mr Dunstan has given me some concern and that is what he says about the problems of him obtaining or access to visitors at Goulburn.  No doubt, this is inherent in any institution of correction but if he is successful in retaining the services of a chemist to assist him on the appeal and needs to consult with a chemist after he has been returned to Goulburn, it would be unfortunate indeed if there were problems about him having access to the chemist without undue delay on the chemist’s part which would put up the cost of the visit and without the chemist being unduly circumscribed in the time that he had available to talk to Mr Dunstan. 

12. My concern in regard to this matter has been allayed by the undertaking given by Mr Refshauge to make representations to ensure that there is no problem and I feel that if those representations are taken seriously, as I am confident they will be, that will overcome the particular problem of which Mr Dunstan spoke.  His problems will also be mitigated to a degree if he stays at Belconnen until 5 June as the presiding Judge proposes.  Accordingly, I agree with the orders that are proposed. 

13. MARSHALL J:   I agree with the reasons for judgment of Gallop J and with the order he proposes.

14. GALLOP J:   The orders therefore will be:

    (1)       that bail pending the appeal is refused;

    (2)       that until 5 June 2000 the applicant be held at the Belconnen Remand Centre.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gallop, Wilcox and Marshall

Associate:

Dated:             26 May 2000

Applicant in person
Counsel for the Respondent:	Mr R Refshauge
Solicitor for the Respondent:	ACT Director of Public Prosecutions
Date of Hearing:	19 May 2000
Date of Judgment:	19 May 2000