Hughes, Janet Dilyse v The Queen

[1983] FCA 67

I N THE FEDERN, COURT OF AUSTRALIA

AUSTRALIAN C H I T A L TERRITORY

1983

DISTRICT REGISTRY

GENERAL D I V I S I O N

ON APPEAL FROM THE SUPP3ME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETIsEEN : JANET DILYSE HUGHFS

A p p l i c a n t

- AND : THE QUEEN

R e s p o n d e n t

I

O R D E R

JUDGE MAKING ORDER: Neaves J .

DATE OF ORDER: 1 4 A p r i l , 1983

WERE - MADE: Canberra

THE COURT ORDERS THAT: .

1. T h a t the appl ica t ion be dismissed.

.

I N THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. A.C.T. G 1 1 of 1983

DISTRICT REGISTRY

GENEML D I V I S I O N

ON APPEAL FROM T3E SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : JANET DILYSE HUGJBS

Applicant

- THE QUEEN

AND :

Respondent

I	CORAM:	Neaves J.
1 4 A p r i l ,	1983

REASONS FOR JUDGMENT

This i s an appl ica t ion for ba i l pending the

hear ing of an appea l by the app l i can t , Janet Di lyse

Hughes, against her conviction and sentence in the

Supreme Court of t he Aus t r a l i an Cap i t a l Te r r i t o ry on

a charge under sub-section 4 ( 3 ) of the Poisons and

1978 o f t he Te r r i t o ry tha t she

had a con t ro l l ed subs t ance in he r posses s ion fo r t he

purpose of supplying the substance to another person

or to o ther persons .

1.

I

The control led substance was cannabis (see

the Ordinance, sub-section 4 ( 1 ) and Schedule 12) . The

charge arose from the discovery a t premises known as

77 Piddington Street , ‘Watson. which were owned by t h e

appl icant , more than 400 growing cannabis plants and

a quant i ty of dr ied mater ia l der ived from those plants .

The appl icant and a male person who was t r i e d

with her were convicted on 11 February, 1983. The learned

trial Judge enter ta ined an appl icat ion by the app l i can t

f o r b a i l pending sentence. Bail was g ran ted to the app l i -

c m t on her OTKI recognizance of $ 1 , 0 0 0 on s t r i c t r e p o r t i n g

conditions. Sentence was awarded on 3 March, 1983, the

applicant being sentenced to imprisonment for one year

wi th a non-parole period of s ix months.

I

On 4 March, 1983, the applicant appealed, as of

r i gh t , t o t h i s Cour t pu r suan t t o sub - sec t ion 2 4 ( 1 ) of

the Federal Court of Australia Act 1976 aga ins t her con-

v i c t i o n and sentence. The grounds of the appea l aga ins t

c o n v i c t i o n r e l a t e t o the suf f ic iency of the d i rec t ions

given by the learned tr ial Judge on two mat te rs . The

first concerns what i s s u f f i c i e n t t o c o n s t i t u t e p o s s e s s i o n ,

wi th in the meaning of tha t express ion in sub-sec t ion 4(3)

of the relevant Ordinance, by the appl icant of the cannabis

p l a n t s and t h e d r i e d material. The second r e l a t e s t o the

suff ic iency of the d i rec t ions g iven as to the proper

construct ion and effect of sub-sect ion 4 ( 4 ) of the

2 .

.

Ordinance. That sub-section provides that in proceedings

for an offence against sub-section 4 ( 3 ) , a person who has

in his possession a quantity of a controlled substance,

being a quantity that exceeds the prescribed traffickable	I
quantity for that substance, is, unless the contrary is proved or the person proves that he had lawful authority

to have the substance in his possession, to be taken to

have the substance in his possession for the purpose

of supplying the substance to another person or to other

persons. There was no dispute that the quantity of cannabis

alleged to be in the possession of the applicant exceeded

the prescribed traffickable quantity of the substance.

In relation to the sentence imposed, the applicant contends

that the trial Judge wrongly exercised his discretion and

that the sentence is excessive.

For the Crownitrras submitted that I should not

entertain the application for the reason that on 4 March,

1983, an application for bail had been made by the

applicant to a Judge of this Court and bail had been refused.

It was submitted that, in the circumstances, no

further application could be made to a Judge of this Court

for bail and reference WdS made to In re Kray (1965)

Ch. 736. Although the proposition was at one stage put

in such absolute terms, it was, I think, later conceded

that a subsequent application could be entertained if

based on fresh evidence. J took this qualification to

3.

mean t h a t the words of Green a fur ther appl ica t ion could be heard i f , i n

C . J . i n T r o t t e r v The Queen (1977)

Tas. S.R. ( P t . 2) 75, " the c i rcumstances re levant to the

exerc ise of the d iscre t ion on the second application are

d i f f e r e n t from those which applied when t h e f i r s t appl i -

ca t ion w a s determined."

The power of a Judge of t h i s C o u r t t o e n t e r t a i n

an appl ica t ion for ba i l pending the hear ing of an appeal

derives from the provisions of the Federal Court of

Aus t r a l i a A c t 1976 and Order 52, sub-rule 35(3) of the

Federal Court Rules. Sub-rule 35(3) provides that the

Court o r a Judge may upon such terns as it ( o r he) th inks

f i t admit an appel lan t to ba i l pending the hear ing of

h i s appea l or h i s app l i ca t ion fo r l eave to appea l . The

ques t ion whe the r success ive app l i ca t ions fo r ba i l may be

made has been the subjec t of jud ic ia l cons idera t ion but

no t a l l t h a t h a s been sa id appears to be cons is ten t ,

unless t he d i f f e rences a re exp i i cab le by reference t o

p a r t i c u l a r s t a t u t o r y p r o v i s i o n s i n f o r c e i n d i f f e r e n t

j u r i s d i c t i o n s : s e e , f o r example, In r e Kray (supra) ;

- R v Fraser and Jacobs (1982) 13 L.R. (N.S.W.) 150 a t c

p . 153; Tro t te r v The Queen (supra) ; and In the Appl i -

cation of Harrod (1978) N.S.W.L.R. 331. The mat te r

was not fu l ly a rgued before me and I , t h e r e f o r e , r e f r a i n

from expressing any final view. However, I a m prepared

t o e n t e r t a i n t h e a p p l i c a t i o n on t h e b a s i s , which I th ink

is es tab l i shed , tha t there has been a change of

4 .

I

circumstances s ince the previous appl icat ion was made

and, i n any event, reference t o Ll~e Court ' s records shows

t h a t when the prev ious appl ica t ion was refused the

learned Judge reserved leave to the appl icant to renew

the app l i ca t ion a t an appropriate time. I , therefore ,

p roceed to cons ider the appl ica t ion on i t s mer i t s .

It i s common ground t h a t t h e p r i n c i p l e which

governs the g ran t ing o f ba i l after conviction and sentence

is t h a t it will not be granted otherwise than i n except ional

circumstances. A s Sugeman J . (as he then was) s a i d , in

The Queen v - Southgate (1960) 78 W.N. (N.S.W.) 4 4 :

"The g u i l t of the appellant having been

e s t ab l i shed by verd ic t o f a j u r y in what must

be taken, until the cont ra ry i s shown, t o

have been a t r i a l properly conducted and

without error of l a w , it i s most unusual that

an appeliant should be admitted to bail pend-

ing the determinat ion of his appeal or of any

a p p l i c a t i o n f o r l e a v e t o appea l aga ins t his

sentence. I,

convic t ion or aga ins t h i s

To establ ish except ional c i rcumstances the appl icant

relies on an a f f idav i t a f f i rmed on 12 April , 1983, by

M r . T. J. Higgins who is a p a r t n e r i n t h e f i r m of

s o l i c i t o r s a c t i n g f o r t h e a p p l i c a n t . M r . Higgins

deposes t o a number of c i rcumstances affect ing the

appl icant . The a f f i d a v i t h a s annexed t o it the an te-

cedents report which was before the learned t r i a l Judge

on 3 March,	1983.
It was submit ted for the Crown t h a t I should

r e j e c t much of the mater ia l i n t h e a f f i d a v i t f i l e d on

5.

I

behalf of t he app l i can t on t h e ground t h a t t h e deponent

could on1.y have been aware of what i s deposed t o on

in fo rma t ion an2 be l i e f , bu t t he f ac t s have been s t a t e d

without any such qualification. Reference was made t o a

passage in the judgnent of El l ico t t J . in Yates v - The

Queen (unreported - 27 August, 1982). H i s Honour was.

there deal ing with the quest ion of the weight to be

given to evidence which had been p u t before him on

information and b e l i e f . I n t h e r e s u l t h i s Honour accepted

the evidence as f a c t u a l . In the present case I a m no t

p r e p a r e d t o r e j e c t t h e a f f i d a v i t o r any pa r t o f i t . The

weight to be at tached t o it i s , of course, another mat ter .

The Crovm has supplemented the material before

me by an a f f idavLt sworn on 13 A p r i l , 1983, by Acting

Detective Sergeant J . G . Nanning of the Aus t ra l ian Federa l

Po l i ce . Tha t a f f idav i t dea l s i n a more d e t a i l e d and prec ise

way wi th some o f t h e m a t t e r s r e f e r r e d t o i n t h e aff idavi t

f i l e d on behalf of the appl icant .

The s u b s t a n t i a l ground on which the app l i can t

relies i s the l eng th of time which w i l l elapse between the

da t e on which sentence was imposed on he r and t h e l i k e l y

d a t e of disposi t ion of the appeal . It appears that when

t h e f i r s t expec ta t ion tha t the appea l a p p l i c a t i o n f o r b a i l was made t h e r e was some

would come on fo r hea r ing

dur ing the s i t t ings of th i s Cour t appoin ted to commence

in Canberra on 3.2 >larch, 1983. This did not eventuate

6 .

but , subjec t to the appea l books being f i l e d , t h e

appeal will b e l i s t e d f o r h e a r i n g a t t h e s i t t i n g s o f t h e

Court appointed to commence i n Canberra on 17 May, 1983.

I understand there i s every l ike l ihood that t h e matter w i l l

be l i s t e d on t h a t day. It i s , o f c o u r s e , open t o t h e

app l i can t t o seek	an	e a r l i e r h e a r i n g i f t h e c i r c u m s t a n c e s
warrant it.

Having r ega rd to the se r ious na tu re o f t he

o f f ence fo r which the appl icant has been convicted and

notwithstanding that the learned trial Judge saw f i t t o

g r a n t t h e a p p l i c a n t b a i l between conviction and sentence,

I have formed the conclusion that the period which i s

l i k e l y t o e l a p s e between the da t e of sentence and the da t e

when the appeal comes on fo r hea r ing i s no t , o f i t s e l f ,

suf f ic ien t to cons t i tu te "except iona l c i rcumstances" as

r e f e r r e d t o in t h e a u t h o r i t i e s .

The o ther matters r e l i e d on by the app l i can t

may be surmnarised as t h e d i f f i c u l t y i n h e r s o l i c i t o r s

ob ta in ing in s t ruc t ions from her because of r e s t r i c t i o n s

on telephone conmunication with those i n cus tody a t .

Mulawa Training Centre in Sydney where the appl icant i s a t

p r e s e n t h e l d , t h e i n t e r r u p t i o n u n t i l 1984 of her course

of s tud ies a t the Canberra College of Advanced Education

which could otherwise be completed by June, 1983, and

inadequate opportuni ty while in custody for the t reatment

of an eye infection which she has developed.

7 .

. -.

I h i l e some d i f f i c u l t y may be experienced

by h e r s o l i c i t o r s i n c o m u n i c a t m g with t h e a p p l i c a n t ,

I do not regard the na ture of those d i f f icu l t ies , which

cannot be put higher than inconvenience and expense, as

s i g n i f i c a n t so f a r as the present appl ica t ion is concerned.

Nor do I r ega rd the in t e r rup t ion t o t h e a p p l i c a n t ’ s

s tudies as an except ional c i rcumstance. So far as

medical treatment i s concerned, the only detai led

evidence before me sugges ts tha t the appl icant has

received appropriate t reatment and that no f u r t h e r

treatment i s necessary. If t h a t state of affairs i s

disputed by the app l i can t more detai led evidence,

including medical evidence,	would need t o be p u t before
the Court .

I have g iven carefu l cons idera t ion to a l l

these mat te rs i n conjunction with the main submission

concerning the time which w i l l e lapse before the appeal

i s disposed of but I am n o t s a t i s f i e d t h a t e x c e p t i o n a l

circumstances have been established.

I therefore d ismiss the appl ica t ion .

I c e r t i f y t h a t t h i s and the preceding

pages are a t r u e copy of t h e Reasons f o r Judgment

he re in	h i s	o f	Honour	M r .	J u s t i c e	.
8.