McDermott, A.L.J. v The Queen - [1990] FCA 189

No judgment structure available for this case.

JUDGMENT NO ........ ....... 14% ./&- ........ ... =.,

--

IN .THE FEDERAL COURT OF AUSTPaIA )

L, )

AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 14 of 1990
DISTRICT REGISTRY 1
)
GENERRL DIVISION 1

ON APPEAL FROM THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ANDREW LAWRENCE JAMES McDERMOTT
Appellant

AND: THE OUEEN
Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.
DATE OF ORDER : 10 May 1990
WHERE MADE : Canberra

THE COURT ORDERS THAT the motion notice of which is dated 30

April 1990 be dismissed.

of the Federal Court Rules.

Note: Settlement and entry of orders is dealt with in Order 36

11.1 THE FEl2EP.X COURT OF AUSTRALIA )
I
3USTP,sJ;I.W CWITAL TERRITORY )
J No. ACT G 14 of 1990
DISTRICT REGISTRY I

GEWEPS DIVIS IOPI

ON AE'PELU FROM THE SUPREME COURT

- t?F THE AUSTRILIAN CAPITAL TEP.RITORY

BETWEEN: ANDREW LAURENCE JAMES McDERMOTT
Appellant

AND: THE QUEEN
Respondent

CORFM: Neaves J.

DATE: 10 May 1990

REASONS FOR JUDGMENT

?%c appellant, Andrew Laurence James McDermott, has ap~lied, by motion on notice, for the grant of bail pending the hearlnq of an appeal Instituted by him in this Court against his convlctlon and sentence in the Supreme Court of the

Australian Capltal Territory for offences agalnst ss.72 and 73

of the Crimes Act 1914 (Cth) and s.4(1) of the Secret

Commissions Act 1905 (Cth).

On 23 February 1990, the appellant was found guilty by

a jury aftcr a lengthy trial of the following offences:

(a) An offence against s.72 of the Crimes
Act that, being a Commonwealth officer in the Australian Fisheries Service within the Department of Primary
Industry, he fraudulently and in breach of his duty made a false entry in a computer database, belng the South East Trawl Boat Unit Register;

(b) An offence against s.73 of the Crimes Act that, being a Commonwealth officer, he agreed to receive a certain sum of money for himself on an understanding that the exercise by him of his duty as a Commonwealth officer would be influenced; and
(c) Four offences against s.4(1) of the Secret Commissions Act that, being an agent of the Crown, without the full knowledge and consent of the Crown as principal, indirectly obtained for himself a consideration as a reward for acts done in relation to the affairs of the Crown.

On 9 March 1990, the appellant was sentenced by Miles C.J. to imprisonment for 4 years in respect of the offence against 5.72

of the Crimes Act, to imprisonment for 18 months in respect of the offence against 5-73 of the Crimes Act such sentence to be served concurrently with the sentence in respect of the offence against s.72 of that Act and, in respect of each of the four offences against s.4(1) of the Secret Commissions Act, to imprisonment for 1 year, those sentences to be served concurrently with each other and with the sentence imposed in

non-parole period of 18 months was fixed. The sentences date respect of the offence against 5.72 of the Crimes Act. A
from 23 February 1990.

The grounds of appeal as set out in the notice of appeal filed in this Court on 9 March 1990 are as folows:

"(1) The trial miscarried as a result of the
decision of Chief Justice Miles to
refuse the appellant an adjournment in
order to obtain legal representation.

( 2 ) The verdicts were unsafe and unsatisfactory.

( 3 ) Hls Honour erred in refus~ng to allow
the appellant to cross examine a principal Crown Witness, Miss Ariff as to credit based on the fact that she had been charged with certain offences and committed for trial on certain offences.

( 4 )

In the course of His Honour's summing up His Honour at no point described how the evidence in the Crown Case was capable of establishing the essential elements of the charges.

( 5 ) His Honour erred in directing the jury
that the evidence was capable of
establishing:-
(a) In relation to count 2:-
(i) That there had been an entry in a record.
(ii) That the appellant had acted frauduently.
(iii) That the appellant had acted in breach of his duty.

(bl In relatlon to Count 4: -
(i) That the appellant agreed to receive property.
(ii) That there was an understanding that the appellant's exercise of

his duty would be influenced.
(C) In relation to the 5th, 6th, 7th and 8th counts:-
(i) That the appellant indirectly obtained for himself any
consideration from Timothy Allan
Roberts.
(ii) That any reward obtalned was for acts done by the appellant in relatlon to the affairs of the Crown.

( 6 ) The sentence was manifestly excessive."

The references in ground (5) to counts 2 and 4 are respectively references to the offences against s.72 and s.73 of the Crimes Act. The references to the 5th, 6th. 7th and 8th counts are references to the four offences against the Secret Commissions Act.

The general principle which governs the granting of bail after conviction and sentence is that it will not be granted otherwise than in exceptional circumstances: Chamberlain v. The Oueen (1982) 69 F.L.R. 445. Counsel for the appellant accepted that, to succeed on the application, it was necessary to show such circumstances.

I express no view as to the prospect of the appellant succeeding on his appeal to this Court. I propose to deal with the application on the basis that there are matters that the appellant may properly put to the Court for its consideration on the hearing of the appeal.

The motion is supported by the affidavit of Allan Reginald Nelson sworn 2 May 1990. Mr Nelson is the appellant's

in his arrest in December 1987, the appellant had been in solicitor. He states that, prior to the events which resulted

permanent employment and had no convictions; that the appellant is an Honours Science graduate and holds a Graduate Diploma in
Fisheries Technology; and that the appellant has accommodation

available and a firm offer of employment in the event of bail being granted. Mr Nelson also states that the appellant

conducted his own defence at the trial as he was unable to obtain legal aid. He further states that he has been instructed to brief senior and junior counsel practising in Melbourne to argue the appeal on the appellant's behalf and that such counsel "have advised that to be properly instructed they will need the appellant's assistance in Melbourne as he had no legal advisers present durlng his trlal". The affidavit
continues:

"It would hamper the proper presentation of the Appellant's case if Counsel did not have easy access to the Appellant in the perlod before the hearing of his appeal. Such access would be extremely difficult whilst the Appellant is in custody in New South Wales."

No further justification for that assertion is made in the affidavit.

Recognising that the matters set out in the affidavit were not, in themselves, sufficient to satisfy the Court that exceptional circumstances exlst in the present case, counsel for the appellant referred to a number of other matters and

were sufficient. Some of the additional matters are not the submitted that, taken in combination, the matters relied upon

subject of evldentlary material before the Court but, as their correctness was not disputed by counsel for the respondent, I propose to take them lnto account. The additional matters relied on are -

(a)

That the appellant had himself approached the police once he became aware that they were Interested in him;

(b)

That the appellant was continuously on bail from the time of his arrest on 23 December 1987 until 23 February 1990 when the jury retired to consider its verdict;

(c)

That the appellant at all times answered his bail;

(d)

That the appellant is a man of previous good character;

(e)

That the appellant was not legally represented at his trial;

(f)

That, unless bail is granted, a little over 4 months of the non-parole period will have been served before the time when the appeal is expected to come on for hearing, namely at the sittings of the Full Court appointed to commence in Canberra on 25 June 1990.

Counsel for the appellant has said everything that can be said in support of the application. However, it is beyond argument, as counsel recognised, that no one of the matters relied upon constitutes the exceptional circumstances which would lustify the grant of bail. Nor in my opinion do the various matters taken in combination warrant that course. The motlon 15, therefore, dismissed.

I certify that this and
the preceding 5 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

%L Associat
Dated: 10 May 1990

Counsel for the appellant : Mr B.J. Salmon Q.C.
and Mr B. Hull

Solicitors for the appellant : Allan R. Nelson & Co.
Counsel for the respondent : Mr M.J. Lawler
Solicitor for the respondent : Director of Public
Prosecutions

Date of hearing : 4 May 1990
Date of judgment : 10 May L990

Actions

Download as PDF Download as Word Document

Citations

McDermott, A.L.J. v The Queen [1990] FCA 189

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

IN .THE FEDERAL COURT OF AUSTPaIA	)
L,	)
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 14 of 1990
DISTRICT REGISTRY	1
)
GENERRL DIVISION	1

JUDGE MAKING ORDER	: Neaves J.
DATE OF ORDER	: 10 May 1990
WHERE MADE	: Canberra

11.1 THE FEl2EP.X COURT OF AUSTRALIA	)
I
3USTP,sJ;I.W CWITAL TERRITORY	)
J No. ACT G 14 of 1990
DISTRICT REGISTRY	I
GEWEPS	DIVIS IOPI

ON AE'PELU	FROM THE SUPREME COURT
-	t?F THE AUSTRILIAN CAPITAL TEP.RITORY

(b)	An offence against s.73 of the Crimes Act that, being a Commonwealth officer, he agreed to receive a certain sum of money for himself on an understanding that the exercise by him of his duty as a Commonwealth officer would be influenced; and
(c)	Four offences against s.4(1) of the Secret Commissions Act that, being an agent of the Crown, without the full knowledge and consent of the Crown as principal, indirectly obtained for himself a consideration as a reward for acts done in relation to the affairs of the Crown.

non-parole period of 18 months was fixed. The sentences date	respect of the offence against 5.72 of the Crimes Act. A
from 23 February 1990.
The grounds of appeal as set out in the notice of appeal filed in this Court on 9 March 1990 are as folows:

( 4 )	In the course of His Honour's summing up His Honour at no point described how the evidence in the Crown Case was capable of establishing the essential elements of the charges.
( 5 ) His Honour erred	in directing the jury

(bl	In relatlon to Count 4: -
(i)	That the appellant agreed to receive property.

in his arrest in December 1987, the appellant had been in	solicitor. He states that, prior to the events which resulted
permanent employment and had no convictions; that the appellant is an Honours Science graduate and holds a Graduate Diploma in
Fisheries Technology; and that the appellant has accommodation
available and a firm offer of employment in the event of bail being granted. Mr Nelson also states that the appellant
conducted his own defence at the trial as he was unable to obtain legal aid. He further states that he has been instructed to brief senior and junior counsel practising in Melbourne to argue the appeal on the appellant's behalf and that such counsel "have advised that to be properly instructed they will need the appellant's assistance in Melbourne as he had no legal advisers present durlng his trlal". The affidavit
continues:

were sufficient. Some of the additional matters are not the	submitted that, taken in combination, the matters relied upon
subject of evldentlary material before the Court but, as their correctness was not disputed by counsel for the respondent, I propose to take them lnto account. The additional matters relied on are -

(a)	That the appellant had himself approached the police once he became aware that they were Interested in him;
(b)	That the appellant was continuously on bail from the time of his arrest on 23 December 1987 until 23 February 1990 when the jury retired to consider its verdict;
(c)	That the appellant at all times answered his bail;
(d)	That the appellant is a man of previous good character;
(e)	That the appellant was not legally represented at his trial;
(f)	That, unless bail is granted, a little over 4 months of the non-parole period will have been served before the time when the appeal is expected to come on for hearing, namely at the sittings of the Full Court appointed to commence in Canberra on 25 June 1990.

Solicitors for the appellant	: Allan R. Nelson & Co.
Counsel for the respondent	: Mr M.J. Lawler

Date of hearing	: 4 May 1990
Date of judgment	: 10 May L990