Morris v The Queen
[2004] HCATrans 567
[2004] HCATrans 567
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B64 of 2004
B e t w e e n -
WILLIAM MONTAGUE MORRIS
Applicant
and
THE QUEEN
Respondent
Application for bail
HEYDON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO CANBERRA
ON WEDNESDAY, 8 DECEMBER 2004, AT 4.28 PM
Copyright in the High Court of Australia
MR A.F. MAHER: May it please the Court, I appear for the applicant. (instructed by Martinez Quadrio Lawyers)
MR J.A. LOGAN, SC: If the Court pleases, I appear with my learned friend, MR S.J. LEE, to respond on behalf of the Crown. (instructed by Director of Public Prosecutions (Qld))
HIS HONOUR: Mr Maher, you are moving on a summons dated 6 December 2004?
MR MAHER: Yes, your Honour.
HIS HONOUR: And that is supported by an affidavit of Stephen James Quadrio, dated 3 December 2004?
MR MAHER: Yes, your Honour, that is the material for the applicant.
HIS HONOUR: Yes. Mr Logan, you do not object to that affidavit, I take it?
MR LOGAN: The affidavits have been seen. There is no objection on behalf of the Crown, nor does the Crown read any material other than the entry of appearance filed today.
HIS HONOUR: Yes. I gather from your written submissions, Mr Logan, that you do not oppose the grant of bail?
MR LOGAN: That is correct, your Honour. The grant of bail is not opposed, for the reasons set out in the outline filed.
HIS HONOUR: Yes. One other thing, and this is something I would ask of both counsel, it seems appropriate that there should be an order of expedition in this matter because if the applicant’s constitutional argument fails, then obviously the sentence must be carried out. It is undesirable that it should hang, as it were, for many months. Do you oppose expedition, Mr Logan?
MR LOGAN: No, your Honour, and, with respect, the Crown is grateful for your Honour’s raising that.
HIS HONOUR: It is just that I am not familiar with what date in early next year would be available. The Registrar has said that the special leave application could probably be heard on 21 March in Brisbane, but it is also possible that some vacancy might appear in a special leave list earlier than that in some other city. I think, in the circumstances, if a vacancy does appear, it would be desirable that counsel travel to that other city. Do you oppose expedition, Mr Maher?
MR MAHER: No, your Honour. Respectfully, we support that.
HIS HONOUR: I think, in the circumstances, I need not trouble counsel further and I should probably say something about the circumstances.
The applicant applies for bail pending the hearing of an application filed by him for special leave to appeal against a dismissal by the Queensland Court of Appeal, comprising Justices McPherson, Williams and White, of an appeal against conviction.
He was convicted on four counts of dangerous operation of a vehicle, namely, an aircraft, contrary to section 328A of the Criminal Code (Qld). He was sentenced to 18 months imprisonment, suspended after two months, with an operational period of two years. On 5 November 2004 the Court of Appeal dismissed the appeal, see R v Morris [2004] QCA 408. It ordered that a warrant issue for the arrest of the applicant but lie in the Registry for seven days.
On 10 November 2004 a special leave application was filed. On 15 November 2004 Justice McPherson ordered that the warrant be stayed until 6 December 2004. On that day the applicant filed a summons seeking bail pending the hearing of his application for special leave to appeal.
Although there were other issues in the Court of Appeal, the only issue which the applicant’s special leave application raises is a contention that section 328A is inconsistent with Commonwealth legislation and that the section is, to the extent of the inconsistency, invalid under section 109 of the Constitution.
Since the cause in this Court involves a matter arising under the Constitution, section 78B(1) of the Judiciary Act 1903 (Cth) imposes a duty on the court not to proceed unless and until notices are given to the Attorneys‑General of the Commonwealth and of the States. That step was taken, I understand, in the Court of Appeal. However, section 78B(5) provides that:
Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
This application for bail is an application for urgent relief of an interlocutory character and, in my opinion, it is necessary in the interests of justice to proceed, notwithstanding non‑compliance with section 78B(1).
The relevant Commonwealth law is Regulation 157(1)(a) of the Civil Aviation Regulations 1988, which forbids aircraft from flying over:
a) any city, town or populous area at a height lower than 1,000 feet –
and section 20A of the Civil Aviation Act 1988 (Cth) which prohibits persons from operating:
an aircraft in a careless or reckless manner so as to endanger the life . . . the person or property of another person.
In United Mexican States v Cabal (2001) 183 ALR 645 at 656 to 657 in paragraphs [40] to [43] Chief Justice Gleeson and Justices McHugh and Gummow set out the tests to be satisfied where this Court will grant bail in criminal cases:
First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed . . . Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined.
The Court also said that:
a very strong case is required for the grant of bail in a criminal case before the court has granted special leave to appeal.
It said:
Ordinarily, a person will be admitted to bail before the grant of special leave in a criminal case only where the court is satisfied that there are very strong grounds for concluding that leave will be granted.
They went on to discuss an exceptional case where that rule might not apply. Those tests are very difficult to satisfy and cases like Peters v The Queen (1996) 71 ALJR 309 at 310 where Justice Dawson granted bail after saying that:
the application for special leave is clearly not hopeless and in my view there is a reasonable prospect that it will succeed –
must be read in the light of those statements of a Full Court, which are binding. Here, there is no doubt that the two month custodial part of the applicant’s sentence will have been served before the applicant’s special leave application could be heard in the ordinary course, even with expedition. Were the matter contested, then the real question would be whether there are very strong grounds for concluding that special leave will be granted or strong grounds for concluding that the appeal, if special leave is granted, would be allowed.
The prosecution has taken the responsible course of indicating in helpful written submissions which it supplied today that it did not oppose the grant of bail pending the hearing of the applicant’s special leave application. I should protect the position of the Crown by indicating that it did submit that the Court of Appeal’s decision was not apparently anything more than an unexceptional application of settled principle, concerning the operation of section 109.
The submissions said that the only unusual feature was, as it were, the collision between a general provision of the Criminal Code relating to vehicles for use in an aviation related offence which fell within the terms of the Commonwealth provisions referred to earlier. The Crown noted that the custodial part of the sentence would be served before the special leave application would come on in the ordinary course. The Crown said that:
it is not apparent that the applicant has strong prospects of securing a grant of special leave.
I should interrupt to say that in all the circumstances it is undesirable to offer any opinion as to the strength or weakness of the prospects of success facing the applicant. The Crown’s position is that it decided not to oppose bail because:
(a) the length of the custodial portion of the term of imprisonment is quite short, and
(b) the Applicant was granted bail, after his conviction by the District Court, pending the hearing and determination of his appeal to the Court of Appeal –
The Crown asserted:
There has developed in Queensland, in relation to appeals where the actual term of imprisonment is less than 6 months, and an applicant is considered likely to honour the terms of his bail, a disposition on the part of the Court to grant bail pending an appeal so as to give an appeal some practical efficacy.
The Crown notes that it is satisfied:
that the Applicant would attend and surrender himself into custody, if required, were bail to be granted. His conduct to date supports that belief.
The Crown finally says that:
Something truly “exceptional” must be shown –
before bail will be granted pending the hearing of the special leave application. The circumstances just indicated are circumstances of that character. It referred to the statement of Justice McHugh in Chew v The Queen (1991) 66 ALJR 209 at 210 to the following effect:
the attitude of the Crown cannot be conclusive. But, in a case where the Crown does not oppose bail, it may well be that that factor added to other circumstances in the case makes the matter exceptional.
The Crown says that:
For these reasons, and these alone, the Respondent does not oppose the staying of the warrant and a grant of bail on like terms to those granted pending the hearing and determination of the Court of Appeal proceeding.
In my opinion, it is appropriate to grant bail in view of the Crown’s stance in the matter. I should congratulate the Crown on the sensible and reasonable position it has indicated in the written submissions to which I have referred. It is, however, desirable that the hearing of the special leave application be expedited. It is not in the public interest that outstanding convictions to which have been attached a sentence of some severity should remain in limbo and it is not desirable, from the applicant’s point of view that he should be in doubt for any longer than necessary as to what his fate will be.
The parties have indicated that they do not oppose the grant of expedition and it is desirable that they contact the Registry in order to find out what date in the early part of next year can be allocated for the hearing of the matter. It further follows that, although I think it is not necessary to make specific directions about this, the applicant ought to file as fast as possible, by which I mean before the impending vacation commences, the written submissions in support of its special leave application and that the Crown should endeavour to respond to those submissions as early as is convenient so that the parties in consultation with the Registry can proceed with the preparation of an application book with a view to the matter being heard in February or March next year, if possible.
I think all that remains is to work out the precise form of the order that should be made. Mr Logan, do you have any submission to make on that subject?
MR LOGAN: Yes. If your Honour pleases, the Crown has been shown in draft a form of order which reproduces particular bail conditions which have a similarity to those granted pending the hearing and determination of the Court of Appeal proceeding. The only addition to which the Crown would draw attention is that which would flow from Cabal’s Case in relation to the staying of execution of the warrant which was issued by order of the Court of Appeal so that there is not then a conflict between this Court’s order granting bail and another order extant which has with it a warrant.
HIS HONOUR: This is the position, then, is it, the applicant has shown you through his legal representatives a form of order that he wants. Is that right?
MR LOGAN: Indeed, that is so. Perhaps it might be convenient if our learned friend were to read that to your Honour and then ‑ ‑ ‑
HIS HONOUR: Yes. You want something added to his proposal?
MR LOGAN: The addition, yes, is this stay, your Honour.
HIS HONOUR: Yes. Is he happy with that? Mr Maher, are you happy with what Mr Logan wants added?
MR MAHER: Yes, your Honour, it is necessary, in my respectful submission, that the warrant be stayed in addition to the grant of bail.
HIS HONOUR: Yes. I have a document headed “ORDER”. It is three pages long and it says, “DATE GIVEN ‑ ‑ ‑
MR MAHER: Yes, it is a draft order forwarded to the Registry, your Honour. It should be in four paragraphs as it appears in draft form.
HIS HONOUR: Yes.
MR MAHER: It is necessary to add a further paragraph staying the warrant issued in the Court of Appeal. The date of that was 5 November 2004.
HIS HONOUR: Is there anywhere in the papers a copy of Mr Justice McPherson’s actual order? Is it annexed to Mr Quadrio’s affidavit?
MR MAHER: No, it is not, your Honour. The order was effected in the Registry when Mr Quadrio made his affidavit.
HIS HONOUR: Do you have the terms of the order?
MR MAHER: Yes, the terms of the order reads, “The warrant for the arrest of the appellant is stayed, or further stayed, until the end of 6 December 2004” and that order was further extended until 9 December.
HIS HONOUR: So the fifth order you want would be something like this, would it: The warrant for the arrest of the applicant, which is lying in the Registry of the Court of Appeal of the Supreme Court of Queensland is stayed until the determination of these proceedings or further order?
MR MAHER: Thank you, your Honour, yes.
HIS HONOUR: Very well. No other order or direction is called for, then? I suppose there is one, actually. The hearing of the application for special leave to appeal is expedited. Very well, I will read out the orders, then.
I make the following orders:
1. William Montague Morris be admitted to bail in respect of his conviction on four counts of the dangerous operation of an aircraft in contravention of section 328A of the Criminal Code before the District Court at Brisbane on 6 April 2004.
2. He shall not without consent of the Director of Public Prosecutions leave the State of Queensland.
3. He shall reside at 5 Tamarind Place, Cedar Grove in the State of Queensland and should he change that place of residence he shall forthwith notify the Director of Prosecutions in writing as to his new address.
4. Unless he receives the consent of the Director of Prosecutions in writing to do otherwise, he continue to observe his present reporting conditions, which are to report to the officer in charge of the Jimboomba Police Station on each Monday, Wednesday and Friday (excluding public holidays) between the hours of 8 am and 4 pm.
5. The warrant for the arrest of William Montague Morris which is lying in the registry of the Court of Appeal of the Supreme Court of Queensland is stayed until the determination of these proceedings or further order.
6. The hearing of the applicant’s application for special leave to appeal is expedited.
I think there is nothing more then, gentlemen?
MR LOGAN: Nothing more from me, your Honour. Would your Honour please reserve any question as to costs and certify for counsel?
HIS HONOUR: Yes. I am not sure there is any question as to costs but I make a seventh order:
7. I reserve costs.
8. I certify that this was an appropriate matter for the attendance of counsel in Chambers.
Thank you very much, gentlemen for your attendance. The Court will now adjourn.
AT 4.57 PM THE MATTER WAS ADJOURNED
0
3
0