Pelechowski v Registrar Court of Appeal

[1998] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S62 of 1998

B e t w e e n -

KARL PELECHOWSKI

Applicant

and

THE REGISTRAR, COURT OF APPEAL

Respondent

Application for bail

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 OCTOBER 1998, AT 4.32 PM

Copyright in the High Court of Australia

MR A.J. McQUILLEN:   May it please the Court, I appear for the applicant. (instructed by Greg Walsh & Co)

MR P. MENZIES, QC:   If your Honour please, I appear with my learned friend, MR R.P.L. LANCASTER, for the respondent. (instructed by the Crown Solicitor for New South Wales)

HIS HONOUR:   (not recorded)  Canberra to hear his case, but no doubt the order is framed in that way for the reason that there may be difficulty once he moves outside the jurisdiction of New South Wales.  Do you accept that?

MR McQUILLEN:   Yes.  That is the only reason I thought that that order was made; it was not debated or argued and that was an order that was made by Chief Justice Brennan, but I only surmise that, your Honour.

HIS HONOUR:   Yes.  Now, if you just give me a moment I will just draft something in relation to (e).

MR McQUILLEN:   Yes.

HIS HONOUR:   One of the difficulties, Mr McQuillen, with (e) is that it requires the appellant to surrender himself to the sheriff on the date of hearing, which may not serve a useful purpose, because the Court is almost certain to reserve, I would have thought, so that is a matter that has got to be dealt with.

MR McQUILLEN:   Well, that was by way of a notice also.

HIS HONOUR:   Yes.

MR McQUILLEN:   So that, notice was given and notice can be given again, I suppose.

HIS HONOUR:   Well, except it only gives notice of the hearing.

MR McQUILLEN:   Yes, of the hearing.

HIS HONOUR:   Yes.

MR McQUILLEN:   And then, at the hearing, when that is concluded, the Court will then consider its position and then either decide to issue another notice or whatever.

HIS HONOUR:    Yes.  What do you say about that order, Mr Menzies?

MR MENZIES:   Well, your Honour, he does not have to be required to come here for the hearing.

HIS HONOUR:   No.

MR MENZIES:   He can choose to come or not so that the appropriate order would be to – I suppose on the date upon which the appeal is decided.

HIS HONOUR:   That tells him nothing.  He does not know when the appeal will be decided.

MR MENZIES:   Yes.

HIS HONOUR:   Mr McQuillen, it may be inconvenient, but I think it appropriate that he surrender himself again to the sheriff on the next hearing date subject to any order that this Court might make.

MR McQUILLEN:   Yes, your Honour.

HIS HONOUR:   In fact, instead of him surrendering himself at 10 o’clock, perhaps it might be 4.15 or something.

MR McQUILLEN:   Yes.

HIS HONOUR:   And then that would enable this Court on the hearing to make a further  ‑ ‑ ‑

MR McQUILLEN:   On or before 4.15.

HIS HONOUR:   Yes, at 4.15, and then on the further hearing of the case, this Court can then make an order extending the bail again if necessary, pending the handing down of judgment.

MR McQUILLEN:   Yes.

HIS HONOUR:   But theoretically it is possible that the judgment could be given on the next hearing date.

MR McQUILLEN:   I see.

HIS HONOUR:   What do you say about that, Mr Menzies?

MR MENZIES:   I think that would be appropriate, your Honour.  The only alternative would be to surrender himself when required so to do, so that if that would mean nil inconvenience to him, he would just have to turn up ‑ ‑ ‑

HIS HONOUR:   I know, but it is very vague and requires further communication.

MR MENZIES:   Yes.

HIS HONOUR:   I think I would prefer to make a fixed date.

MR MENZIES:   Yes.  Can I just mention another matter?

HIS HONOUR:   Yes.

MR MENZIES:   In as much as it may be that he has simply chosen not to turn up today, for whatever reason, perhaps he should be required to attend, as Mr Justice Kirby suggested ‑ ‑ ‑

HIS HONOUR:   We do not know that.  If necessary, you can take out some sort of motion to revoke the bail, if you think that is appropriate.

MR MENZIES:   Yes.

HIS HONOUR:   Or, if there has been some breach of bail conditions, to deal with it in some other way.

MR MENZIES:   Yes.

HIS HONOUR:   If you just give me a moment.  Before making a formal order, what I propose to do is to extend the appellant’s bail, in accordance with condition 2, as set out at pages 449 to 450 of the appeal book, subject to the following order:  that on a date to be fixed by notice to the applicant in writing by the Deputy Registrar of this Court as the date upon which the further hearing of the appeal will take place, he surrender himself to the Sheriff of the Supreme Court of New South Wales in Sydney at 4.15 pm on that day to serve any sentence, or any balance of his sentence then remaining unserved, in accordance with the fixed term of imprisonment, and so on.  Do you have any problem with that?

MR MENZIES:   I do not think so.  We have the dates, your Honour.  Perhaps 10 November could be in the order, rather than ‑ ‑ ‑

HIS HONOUR:   10 November, yes, very well. 

The order I make is:

I extend bail in this matter on the conditions set out in order 2 at pages 449 and 450 of the appeal book, subject to the following further order.  That is, that on 10 November, a date which is to be notified to the applicant in writing by the Registrar of this Court, being the date on which the further hearing of the appeal will be heard, the applicant surrender himself to the Sheriff of the Supreme Court of New South Wales in Sydney at 4.15pm on that day to serve any sentence, or any balance of his sentence, then remaining unserved, in accordance with the fixed term of imprisonment imposed by the New South Wales Court of Appeal, subject to such further order, if any, as the High Court may make. 

Is there anything further?

MR MENZIES:   No, your Honour.

MR McQUILLEN:   No, your Honour.

HIS HONOUR:   Adjourn the proceedings.

AT 4.44 PM THE MATTER WAS ADJOURNED