Paddison v Commonwealth Director of Public Prosecutions

[2007] HCATrans 156

[2007] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B38 of 2006

B e t w e e n -

DENNIS PAUL PADDISON

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON TUESDAY, 24 APRIL 2007, AT 10.42 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the applicant.  (instructed by Ryan & Bosscher Lawyers)

MR D.N. ADSETT:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Cth))

KIRBY J:   Yes, Mr Byrne.  It does not have the hallmarks of a special leave matter, Mr Byrne; it is an interlocutory order to a criminal proceeding.  I realise liberty is at stake but it is not the sort of matter the Court normally gets involved in, discretionary matters of this kind.

MR BYRNE:   I accept that I would have to convince your Honours that it does raise a point of general importance and I can make my submissions, at least in short term.

KIRBY J:   Yes.

MR BYRNE:   May I say this, your Honours.  It is accepted that the applicant is charged with serious offences.  That was recognised before the learned primary judge, her Honour Justice Lyons, as were the common and accepted facts as to his stable employment, education, family background and unblemished history.  The structure of the Bail Act 1980 (Qld) is for persons in a position such as the applicant to have a prima facie entitlement to bail unless the court is satisfied that there is an unacceptable risk. The unacceptable risk argued both before the primary judge and the Court of Appeal by the respondent was an unacceptable risk of flight.

That position under the Bail Act (Qld) is not dissimilar to the position in Article 9 of the International Covenant on Civil and Political Rights whereby arbitrary detention is not to be regarded as the primary focus, rather, liberty structured by appropriate conditions is to be the preferred option.

Here, in the exercise of her Honour’s discretion, conditions were imposed and, your Honours, if I can take you just briefly to application book 5 and 6 you will see there that the conditions imposed were indeed stringent and far reaching.  They included twice daily reporting, residence at an address approved by the respondent, surrender of passport, et cetera.  I could remind your Honours too, as a matter of construction of the Bail Act (Qld) section 11, which is put in the outline, provides that conditions should not be “more onerous” than are necessary in a particular case.

The error, in my respectful submission, firstly by the Court of Appeal which is at application book 15, lines 15 to 40, is illusory given that her Honour the primary judge actually referred to all of those considerations, all of those factors, in the course of giving her reasons.  The words of Justice Sperling in Cain, which is contained in our material, ring loudly in this important area of imprisonment on accusation and they should, in my respectful submission, not resonate less where the person is a visitor to our nation pursuant to Article 26 of the Covenant to which we have referred.

The second error by the Court of Appeal was to regard the very factors which should have shown that the applicant was not a flight risk, namely, his stable life, his family, that he was the owner of real property, that he was the owner of his own business.  Those matters were regarded by the Court of Appeal as matters raising the risk to an unacceptable level.  In our submission, the learned primary judge was correct as relying upon those matters on the basis that they were factors in his favour, and the Court of Appeal erred in finding them to the contrary simply because his state of origin, namely, he was a resident of Canada rather than Australia. 

In my respectful submission, there is a point of principle as to bail so far as nationality is concerned and also a point of principle as to the construction of factors, whether they are positive or negative, so far as a person being granted bail where there is the real likelihood in a case such as this where there will be detention without testing of accusations for a long time.

KIRBY J:   I understand your submissions.  In fact, I think, speaking for myself, that Justice Lyons wrote a pretty well‑constructed judgment and the reasons are pretty good and I feel for her because she is in the position in this case that I was in in Cabal, having granted bail and then the Full Court took a different view.  Essentially, I think it was for the innominate class that House v The King refers to, that is to say that you may not be able to put your finger exactly on what the error is but, just looking at the whole matter, it is too risky and that appears to be what the Court of Appeal has said and this Court, emphasised in Cabal that the question of the possibility of flight where a person is before the Court is of very great importance.  That, essentially, seems to be what the Court of Appeal of Queensland said in this case.

MR BYRNE:   I take, of course, what your Honour Justice Kirby says to me and the force of it and I accept also that were this to fall in to that final category of House, my position would be all but untenable.  Hence, I have sought to identify – if I can take your Honours just quickly to page 15 of the application book where her Honour Justice Holmes, giving the effective judgment of the Court of Appeal, does not seek to rely on that category but, rather, seeks to rely on a category in House that her Honour has failed to take a material consideration into account and there, from lines 15 to 42, lists them. 

Our point simply is, her Honour, as your Honour Justice Kirby said, gave a well‑structured extempore judgment and had regard to all of those factors.  So the bases for interfering with the discretionary judgment were not properly before the Court of Appeal or found by the Court of Appeal.

KIRBY J:   Yes, thank you.  The Court does not need your assistance, Mr Adsett.

The applicant, a Canadian national, faces two serious charges of offences against the Criminal Code (Cth) of importing a controlled drug into Australia. After his arrest the applicant, a person with no previous convictions, was granted bail in the Supreme Court of Queensland by Justice Lyons. The Commonwealth Director of Public Prosecutions challenged the grant of bail and the Court of Appeal of Queensland upheld the appeal, set aside the bail orders and returned the applicant to custody to await his trial.

Although the applicant has made a number of effective criticisms of the Court of Appeal’s reasons for disturbing the discretionary conclusion of the primary judge, we are not ultimately persuaded that the application enjoys reasonable prospects of success, were special leave granted.  Where a foreign national is in custody as an incident to serious process before an Australian court and that person has no substantial links with this country that is always a most important consideration for any grant of bail:  see United Mexican States v Cabal and Others (2001) 209 CLR 165 at 189 [57].

Special leave in this matter must be refused.

The Court will now adjourn to hear in another place the applications for special leave in Melbourne.

AT 10.51 AM THE MATTER WAS CONCLUDED