Putland v The Queen
[2003] HCATrans 307
[2003] HCATrans 307
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D4 of 2003
B e t w e e n -
ROBERT JOHN PUTLAND
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 11.55 AM
Copyright in the High Court of Australia
MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Northern Territory Legal Aid Commission)
MR S.W. TILMOUTH, QC: I appear for the respondent with my learned friend, MR G.C. FISHER, if the Court pleases. (instructed by Commonwealth Director of Public Prosecutions)
KIRBY J: Yes, Mr Grace.
MR GRACE: Could I inform the Court that the applicant appears in person today.
KIRBY J: Mr Robert Putland, you might stand up, if you would? Mr Putland, you are present today pursuant to the order that was made last week requiring you to be here today. You might come a bit closer so that you are nearer to Mr Grace. We put this matter on earlier so that you can be dealt with one way or the other. Sit down.
Mr Grace, just before you start, Justice Gummow reminded me, and I had forgotten, that there was a case recently in which we granted special leave in the Perth list, which raised a matter that had some apparent association with the way one constructs a sentence. What was the name of that case?
MR GRACE: Johnson.
KIRBY J: Do you feel that that has any connection with the point that is being raised in this case?
MR GRACE: Yes, it does.
KIRBY J: Johnson, I assume, is going to be heard in Perth?
MR GRACE: Yes, it is going to be heard in Perth at the Perth sittings.
KIRBY J: You are going to be over in Perth to argue it?
MR GRACE: Yes.
KIRBY J: Are you going to Perth for any reason, Mr Tilmouth, or do you find the prospect of Perth in the autumn any attraction?
MR TILMOUTH: As to the latter, not on any account, if the Court pleases.
KIRBY J: It is in the spring, actually.
MR TILMOUTH: As to the former, if the Court pleases, my hands would be entirely in those of the Director whom I represent, and he might ‑ ‑ ‑
KIRBY J: He does not want to go anywhere?
MR TILMOUTH: I do not know that, your Honour. He might have a penchant for Perth. I must say, I am not aware of the Johnson matter.
KIRBY J: No. I sat in the special leave, I think, and I had forgotten it, so you cannot be blamed. You were not even there.
MR TILMOUTH: No.
KIRBY J: However, Justice Gummow’s memory was much stronger than mine, in this respect. Perhaps you might just sit down for a moment.
MR TILMOUTH: If the court pleases.
KIRBY J: You might just develop your argument, Mr Grace. We have read the written submissions. The point that interested us was the diversity point, that there appeared to be emerging different approaches to this question in different jurisdictions of Australia. That would be conventionally a special leave point, if otherwise the case warranted it.
MR GRACE: Yes. That divergence point is a product of the differing State or Territory legislative provisions. It is only in the Northern Territory ‑ ‑ ‑
HAYNE J: Is it, or is it a product of differing constructions of 4K?
MR GRACE: It is perhaps both, your Honour.
HAYNE J: Because is not step 1 in the process to look at 4K and decide whether 4K has operation in relation to indictable offences, or is that to begin the problem at the wrong end?
MR GRACE: I would suggest the latter, your Honour. The cases of Jackson and Bibaoui and the judgment in the court below all reached the conclusion that 4K(4) only applied to summary offences. The issue in Jackson in the court below was whether the State or Territory sentencing power to impose an aggregate sentence for sentences of imprisonment on indictment is picked up by section 68(1) of the Judiciary Act.
The argument for the applicant is that it is incapable of being picked up, and that is principally because of the interpretation that the applicant contends for in respect of section 67(1), because this a power, not a procedure. Secondly, and perhaps more importantly, that Part 1B evinces an intention to cover the field in respect of the sentencing of federal offenders for offences against federal laws on indictment.
That is made clear, it is submitted, by provisions such as 16A and 16B, which are the two sections that your Honour may recall were discussed in that special leave application of Johnson, on Friday last. If I could turn to the particular provisions, themselves, your Honours ‑ ‑ ‑
HAYNE J: Before you get into the 16s, can I just detain you at 4K(3), which seems to be the start point. The argument that it does not apply to proceedings on indictment is founded, is it, on the collocation of “same information, complaint or summons” necessarily excluding proceedings for indictable offences?
MR GRACE: Yes.
HAYNE J: The name of the process by which indictable offences are commenced varies from State to State. I think I am right in saying, in this State, such proceedings are commenced on information, are they not?
MR GRACE: Yes, they can be commenced on information or indictment, as I understand it.
HAYNE J: Yes.
MR GRACE: The same applies in the Australian Capital Territory.
HAYNE J: But Bibaoui [1997] 2 VR 600 concluded, did it not, that 4K(3) and (4) could not be engaged in respect of indictable offences because the initiating process mentioned was apt to refer only to summary process.
MR GRACE: Yes, and also because section 4A of the Crimes Act defines:
indictment includes an information and a presentment.
But there is no definition of the reverse, that is, information. There is no definition of information as including indictment. The interpretation therefore given by the courts both in Jackson and Bibaoui in Victoria was that that clearly evinced legislative intention that section 4K(3) only apply to courts of summary jurisdiction.
HAYNE J: Which is an add way to construct a piece of legislation, is it not? To provide in 4K(1) and (2) provisions which deal with all kinds of criminal offences against the law of the Commonwealth, and yet in (3) and (4) to make provisions that are applicable according to the process that is engaged in the particular case.
MR GRACE: Yes. The reason may be the piecemeal approach that was adopted to the introduction of 4K(3) and (4), because it came into the Crimes Act from the Acts Interpretation Act (Cth) in about 1984 and then we had a later passing of Part 1B in 1989. There seems to have been little consideration given to the juxtaposition of 4K(3) and (4) within ‑ ‑ ‑
HAYNE J: But it suggests that, if leave were to be granted, it would be necessary to have quite some detail of the legislative history of these provisions and the way in which they were constructed.
MR GRACE: Yes.
KIRBY J: That is the strength of the case. The weakness of the case is the point that was raised by the judge in the Northern Territory, which is that, though the points you seek to put before this Court are arguable, they lead nowhere in this case, because the custodial sentence actually to be served by your client was relatively short; the offences were, on the face of things, not without significance, and there may be a different structure to the final sentence but that the net custodial part of the sentence would not be very different, if different at all, from the sentence that was imposed by the trial judge.
What is your answer to that, apart from the general answer that everybody is entitled to have the sentence constructed according to law? That is a given, but it is relevant to the grant of special leave that the application is going to lead somewhere, in effect.
MR GRACE: There are two general points I want to make and then I will go into the particular. The general points are these, that if there was no power for the Supreme Court of the Northern Territory to impose an aggregate sentence, that ought to be the end of the matter, in terms of that consideration, because the court was simply without jurisdiction to do so, and, as your Honour quite rightly says, the applicant is entitled to be sentenced in accordance with law. The second point, and perhaps equally as important, is this, that this issue has potential ramifications all across Australia. One ‑ ‑ ‑
KIRBY J: That may be so, but we have to look on the applicant who seeks special leave. Normally, you would know, and I have to tell you, that in a sentencing matter, first of all, the Court is rather disinclined to deal with sentencing questions – not so much here, I think, because this is a federal statutory provision that has to be construed – but normally one looks to whether it will end up having any impact on the sentence of the applicant. That is what I have a doubt about, like the judge in the Northern Territory.
MR GRACE: Yes. Could I then deal with a particular. The applicant was sentenced in August 2001. If special leave were to be granted and the appeal allowed and the applicant sent back for re‑sentencing, then he would not be re‑sentenced until some time between two and three years after the date of the original sentence.
During that period of time, if there was evidence presented to the court that the applicant had furthered his rehabilitation; if there was evidence presented to the court that the applicant’s medical condition had deteriorated; if there were further personal matters pertaining to the applicant presented to the court of a mitigatory nature; if the applicant continued, as he had between the time of commission of these offences ‑ which was quite some years ago now – until the date of sentence to be living a law‑abiding life; then that would be very relevant to any re‑sentencing exercise. It may well be that notwithstanding that the same minimum term – if I could use that phrase, although it was a recognisance release order imposed of 12 months – that the same order may be imposed, it may well be that the rest of the sentence, the custodial part, would be suspended.
HAYNE J: Can I just understand, has he actually served any time yet?
MR GRACE: Yes.
HAYNE J: How much?
MR GRACE: He has served six months and four days.
KIRBY J: So he is halfway through the custodial part.
MR GRACE: He is halfway through, yes. So he has been in gaol. He has now presented himself here today, of course.
KIRBY J: I was told last week that he had a job in the Adelaide area.
MR GRACE: Yes, he is a truck driver, and he lives in the Adelaide area. He may be such a person that a sentencing judge, upon a re‑sentencing exercise, would take the view that justice could be best served by suspending the remainder of any custodial part of the sentence.
KIRBY J: All right. I think you have developed that sufficiently for present purposes. Is there anything else you want to say?
MR GRACE: Not at this stage, your Honour.
KIRBY J: Yes. Well, Mr Tilmouth, what is the attitude of the Crown?
MR TILMOUTH: Your Honours, the point, as I understand it, now being raised about the starting point, in effect, being section 4K and the Bibaoui construction was not the basis upon which this matter was put in the courts below.
HAYNE J: Do you accept it is the proper starting point?
MR TILMOUTH: Section 4K has to come into it, but the argument for the applicant in the courts below was that Bibaoui was correct. By the way, our position is there is no relevant difference between the relevant definitions of information and indictment, et cetera, as between Victoria and the Northern Territory, at least. That was correct, therefore you read section 4K in Part 1B as, in effect, covering the field and, better put, displaying an intention in the part of the Commonwealth that the laws that allowed an aggregate sentence were not to be picked up through section 68 or, indeed, section 79.
That is not the argument that was put in the courts below. The argument in the court below was based on Bibaoui. The difficulty, in our submission, as well, is, of course, that Bibaoui has been construed and has been applied since, and if not before, as limited to summary offences. The Court of Criminal Appeal here in South Australia in Jackson assumed Bibaoui was correct and dealt with the matter on that basis to hold that our section 18A, which is equivalent to section 52 of the Northern Territory Act, was picked up by section 68.
In our submission, there is no difficulty with, in appropriate cases, these aggregate provisions – which apply in the Northern Territory, South Australia and Tasmania, I think – in Commonwealth matters. They are just another small piece in the spectrum of the sentence that the court can impose. In my submission, there is no difficulty of any constitutional or other kind with a provision like that. As this Court recently pointed out in the Gee and Thaller Case where ‑ ‑ ‑
KIRBY J: Which one?
MR TILMOUTH: Gee and Thaller – the one that was argued in Adelaide about the right of the Commonwealth Director to appeal against an interrogatory preliminary hearing.
KIRBY J: Yes. I think you were in that, were you not?
MR TILMOUTH: Yes, I was, for the other party – the losing party.
KIRBY J: Why do you point to Mr Grace when you say that?
MR TILMOUTH: I am pointing to my left, your Honour, not meaning to mean Mr Grace, at all. I put my hand away. Your Honours, the Court pointed out there that even though the effect might be discriminatory ‑ your Honours will remember it was a most unusual, indeed, unique provision – it was picked up, because that is the nature of the system that the Judiciary Act imposes.
HAYNE J: Can I understand what the position of the Director is? The Director supports the sentence imposed on Mr Putland, is that right?
MR TILMOUTH: Yes.
HAYNE J: So it says that there was power to impose an aggregate sentence.
MR TILMOUTH: Yes.
HAYNE J: Where does the Director say that power came from?
MR TILMOUTH: It had to be picked up through the Judiciary Act, if the Court pleases, section 52 of the Sentencing Act (NT).
HAYNE J: So the Director does not contend that 4K authorised it?
MR TILMOUTH: No. The Director accepts the construction of 4K by the Victorian Court of Criminal Appeal in Bibaoui and, as I have pointed out, so did the applicant when this matter was argued in the court below. That is the necessary consequence, in my submission, of the regime – the expedient that the Commonwealth has adopted of taking the State courts as it finds them. Could I add this, too, if the Court pleases, more on the discretionary basis, the effect of these provisions can ‑ ‑ ‑
KIRBY J: Can I just ask you to pause there. If one had one’s own doubts about the correctness of the view of the Victorian Court of Appeal, then the issue is not without importance, because it involves the interpretation of section 4K and its application throughout the Commonwealth.
MR TILMOUTH: I agree with that entirely, if the Court pleases.
KIRBY J: I am not expressing any concluded opinion, but I think there is a real question.
MR TILMOUTH: Yes. That may be accepted on the assumption that your Honour puts to me. I think it is fair to add, if the Court pleases, that in Jackson, although Justice Perry, with whom Justice Nyland agreed – they assumed Bibaoui was correct and one may read in Jackson that perhaps Justice Perry was not necessarily happy with that, at least so far as South Australia was concerned. My instructions are firmly – and I did raise this issue, I might add, yesterday, if the Court pleases – the specific issue of section 4K – my instructions are to support the construction of the Victorian Court of Criminal Appeal. I did raise that matter yesterday, specifically.
HAYNE J: That is an unusual outcome, that is all I will say. That is an unusual outcome for the Commonwealth Director to be contending that 4K does not deal entirely with sentencing, in this respect, for Commonwealth offences, but it is a matter for the Director.
MR TILMOUTH: That was my instruction, if the Court pleases.
HAYNE J: Yes, I understand that.
MR TILMOUTH: The specific point was adverted to and the strong instruction I had was to support the Victorian Court of Criminal Appeal, and therefore that it is limited to summary matters. There is, of course, one important difference, however, before the 4K regime, insofar as it allows an aggregation of sentences, and, indeed, some specific Commonwealth legislation such as the Social Security Act, and so on – there are a number of specific pieces. They all enable the aggregation of sentences only for offences under those provisions.
Now, the difference between section 52 in the Northern Territory and section 18A of the South Australian provision – and I forget the number of the Tasmanian provision, but the situation is the same, I think – is they enable an aggregation of sentences not just being for offences against the same provision. Of course, what your Honours see here is exactly that. You have two counts against the Crimes Act and you have four, I think, against – two each of separate provisions of the Bankruptcy Act. Of course, 4K would only have allowed the aggregate sentences with respect to each of the three sets of two – the offence against the same provision. So one must bear in mind, of course, when we are talking ‑ ‑ ‑
HAYNE J: No, 4K is engaged if:
founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
MR TILMOUTH: That is joinder, your Honour.
HAYNE J: Yes, and 4K(4) is dependent on 4K(3).
MR TILMOUTH: Yes, and that says:
offences against the same provision of a law of the Commonwealth.
Section 4K(3), your Honours. So the way that has been read in practice is ‑ let us take social security, for an example – you could only charge the same offence under the Social Security Act, or, related to this particular matter, the only joinder – assuming for the moment that it was not limited to summary offences – would be a joinder of counts 1 and 2 under section 29D of the Crimes Act – possibly count 3, which is 29D, but also section 5, a question might arise there – but it would not have authorised a joinder with the bankruptcy offences in count 4 and count 5. Indeed, it would only have authorised separately the joinder of counts 4 and 5 on the one indictment or information, but not count 6, because count 6 is against a different provision, albeit of the same Act.
So we are not talking entirely the same field, as it were. The joinder might be wide, but the type of sentence that can be aggregated is rather limited and it is certainly not as wide as section 52 or the South Australian provision. They are different in that respect, if the Court ‑ ‑ ‑
KIRBY J: That is the Northern Territory provision?
MR TILMOUTH: Section 52 of the Sentencing Act, may it please your Honour.
KIRBY J: Yes.
MR TILMOUTH: It enables the aggregate sentences across different Acts and across different sections of the same Act.
KIRBY J: One reason for preferring the approach in section 4K is that it does have the tendency or effect of ensuring that punishment for offences against the law of the Commonwealth is uniform throughout the Commonwealth. On the face of things, that is a starting point with which one would normally assume one starts, in relation to punishment for the offences of the one polity.
That would be a reason why, in matters of procedure, you might pick the innovations of State courts – which is an issue that arose in the South Australian case that you were in and referred to – and why one would, notwithstanding that line of authority, pick up the common sentencing regime set out in the Crimes Act for the punishment of federal offenders.
MR TILMOUTH: Yes. There are arguments, with respect, both ways, but I understand what your Honour puts to me.
KIRBY J: If there are arguments both ways, then it is not an unimportant point, is it?
MR TILMOUTH: With respect, it goes back to whether or not, with respect, the current construction of section 4K is correct. Our submission firmly is that it is. May I add this as well, your Honours. In my friend’s papers, and I notice from what the Court of Criminal Appeal of the Northern Territory said, one criticism that was made was, “The problem with aggregate sentences is the offender does not know what was allocated to the individual offences”.
I should tell the Court that certainly the way that the South Australian provision operates in practice is that judges are required by several Court of Criminal Appeal decisions here to nominate what sentence they would impose on the individual offence, first of all, then they consider, amongst other things, whether they should be cumulative or concurrent, and then they consider the totality principle. It is only when all of those are brought together, as it were, that the aggregate sentence comes in, but the way that aggregate sentence is constructed exposes the reasoning process, including what the culpability is as it is reflected in terms of years or months.
We do not accept that criticism either that one of the problems that this aggregate sentencing might allow is to mask, rather than reveal, the whole sentencing process. That is partly what founded the decision of the Court of Criminal Appeal in Victoria, that kind of factor. It does not exist, at least, in this State and, as I understand it, in the Northern Territory, although I notice Justice Bailey in this case did not allocate – in the four years with the one year release, he did not allocate any specific part of that to any specific offence. I have to acknowledge that.
The case, by the way, that I have just referred to in particular is the case of Major (1998) 70 SASR 488, and that has been consistently applied. Finally, could I add this, may it please the Court, on the merits and whether this is a suitable vehicle. Part of the aggregate sentence regime, in our submission, can be, and certainly was, in this case, quite beneficial to the applicant.
Ordinarily, a non‑parole period or an early release has a percentage or a fraction of a head sentence. It is usually much higher than a quarter, as it was here, according to ordinary sentencing principle. I am not making a point about that as such, but the effect of the aggregate in this case, and very often, in my submission, is, as it were, to compress the overall sentencing into perhaps what might be regarded as a lesser sentence, if one toted up, offence by offence, the criminality in any given case.
The great benefit, of course, of the aggregate mechanism is that, although there are separate offences over a period of time, it enables the Court to properly acknowledge, without intricacies of concurrency and accumulation, that although they were separate offences they also formed part of the same continuing transaction. In my submission, it does not necessarily follow at all that because there is a question about whether these provisions are picked up by the Commonwealth that that is necessarily a good thing, so far as people like the applicant is concerned.
Indeed, our submission is it would be unfortunate if this option was not available to sentencing judges exercising federal jurisdiction for Commonwealth offences. If the Court pleases.
KIRBY J: That is an argument on the other side, but the argument that I mentioned remains, does it not, and that may be a reason for making a clearer federal provision. It just does seem an odd idea that people are sentenced in different parts of the country in a different way for a federal offence.
MR TILMOUTH: That is true, but that is what the Court said ‑ ‑ ‑
KIRBY J: There are many strange results of our federation, including the different conditions of gaols in different parts of the Commonwealth and different rules relating to release and parole and so on.
MR TILMOUTH: Yes. Of course, that is acknowledged, may it please your Honour, but the Court has said that is the way it works, in Gee and Thaller. Of course, this problem was raised in Leeth, and as a result of Leeth in Part 1B where these provisions about fixing non‑parole periods and the like – even though picking up the State regimes, which were very dissimilar and effected very different and rather marked differences. People could be sentenced for the same offence with the same culpability and get out of gaol in one jurisdiction a lot earlier than another. So the Commonwealth actually closed that in Part 1B to that extent, at least.
But in this case, your Honours, one should not fear, in my submission, that this works a discrimination or is an unfortunate matter because, as I have endeavoured to point out, it is a provision which would be, in the main, in its operation capable of being far more beneficial to sentenced persons than the other way around.
KIRBY J: I understand that, but then that discriminates against prisoners in other jurisdictions in Australia who do not pick up the particular provisions of the Sentencing Act.
MR TILMOUTH: That is true, I suppose, but ‑ ‑ ‑
KIRBY J: Your point is that that is not something that this present applicant can be heard to argue about, because he got the benefit of it.
MR TILMOUTH: Yes, he did.
KIRBY J: Yes. We understand that.
MR TILMOUTH: May it please the Court.
KIRBY J: Thank you. Have you anything in reply, Mr Grace?
MR GRACE: Yes. Your Honours, the paradox in this case is this, that if section 4K(4) applies, then what occurred in the lower courts in this matter was in error, because, under the provisions of 4K(4), as Mr Tilmouth has indicated, you could not join for sentencing purposes or aggregation purposes these offences, because they are under different provisions of the laws of the Commonwealth. That is the first matter.
KIRBY J: But, as Mr Tilmouth points out, that might not be to the ultimate advantage of people in the position of your client.
MR GRACE: That may be so, but it is a question of power.
KIRBY J: Presumably, if he were re‑sentenced, there would be some principle that the court would not ordinarily sentence him to a higher custodial sentence that he had been sentenced under the original sentence. That normally would be observed.
MR GRACE: Yes, that would be. The second point I want to raise is what your Honour Justice Hayne, together with Justices McHugh and Callinan, said at paragraph 45 in Pearce (1998) 194 CLR 610. There it was said:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
Then at paragraph 48:
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
Those are the general propositions at common law and they have a close parallel with what we say is the correct interpretation of the provisions in Part 1B, particularly section 16A and 16B, which both evince an intention, together with other sections, of particular sentences or individual sentences being imposed in respect of each offence that the offender is convicted of.
Could I just mention one matter, by clarification? It is the ACT which has the similar provision, not Tasmania. Tasmania did have a similar provision, but it was repealed in 1988. So the only three jurisdictions in Australia that have that provision, which is expressed in different terms to section 4K(4), are the Northern Territory, South Australia and the ACT.
KIRBY J: How would you express the point of similarity between this case and Johnson?
MR GRACE: Because of what is said to be the interpretation that should be given to section 16A and section 16B. Your Honour may recall that in Johnson the member of the court requested prior to the hearing of the application – two days prior – further submissions on the impact of such provisions.
KIRBY J: I think they dealt with it without any reference whatsoever to federal law, as if the State law applied of its own force.
MR GRACE: Yes, and that had to do with issues of concurrence and cumulation.
KIRBY J: What I am asking about is, if we were minded to grant special leave, is it going to be sensible to list it, if we can, back to back with Johnson, if that is possible in the state of the Perth list. I just do not know what that list currently includes.
MR GRACE: Yes. There would be utility in that, in my submission.
KIRBY J: Yes, very well. That is not a matter we can order now. We will simply, if we grant special leave, indicate that that should be taken into account by the Chief Justice and the Registrar.
MR GRACE: Yes.
KIRBY J: There will be a grant of special leave in this application. The Court will give consideration to whether the matter should be listed possibly in the Perth sittings in October 2003 to be heard following the hearing in Johnson v The Queen. The parties will be notified as to whether that can be done. Now, a question arises as to the bail of the applicant.
MR GRACE: Yes.
KIRBY J: The applicant has presented today. I think you made the point in the application for bail last week, or for a stay of the order of the Court of Criminal Appeal in the Northern Territory, that unless he were granted bail the appeal would be rendered futile. That position is now, in a sense, enhanced by the grant of special leave. Do you ask for bail on behalf of the applicant?
MR GRACE: Yes, I do.
KIRBY J: What is your position on that, Mr Tilmouth? Do you need to get instructions on the matter?
MR TILMOUTH: Yes, I do.
KIRBY J: Could I ask you both – this is not a matter that need detain the Full Court – I can deal with this later in the day, if need be – to have a discussion between yourselves for you, Mr Tilmouth, to get instructions and if there is agreement that the applicant should have bail, pending the hearing and determination of the appeal by the Court, that there be a document prepared which sets out any conditions for bail. I am mindful of the fact that the applicant did not answer to his bail in strict accordance with it, and we would want to avoid any future repetition of that sort of conduct. The matter can be mentioned before me later in the day, if you can agree to it.
MR TILMOUTH: If the Court pleases. We are obliged.
HAYNE J: There is a form of order for bail to be found in a recent decision of the Court, I believe.
MR TILMOUTH: I am obliged to your Honour, thank you.
KIRBY J: In the meantime, is there any objection on the part of the Crown to our allowing Mr Putland to go at liberty on his undertaking to present himself to the Court, say, at 3 o’clock this afternoon, or 2 o’clock, 2.15?
MR TILMOUTH: At 2.15, I think, if the Court pleases.
KIRBY J: Yes. If you can get instructions and have some conditions for bail by 2.15, then we can make orders at that stage. Speaking for myself, if it is of any guidance, I would be minded, in the light of the developments, to grant bail to Mr Putland, on proper conditions.
MR TILMOUTH: If the Court pleases.
KIRBY J: Mr Putland, you can go at liberty until 2.15, but you must return here at 2.15. Do you understand that?
MR PUTLAND: Yes, your Honour.
KIRBY J: You can go and have some lunch and come back here at 2.15. You have been granted special leave to appeal in your case and it will be heard soon and we will make orders as to your bail at 2.15 or thereafter, so you come back at that time. Mr Grace will explain it to you. We will adjourn until 2.15.
AT 12.32 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
KIRBY J: Mr Grace, Justice Gummow has agreed that this should be dealt with out of order now. You have handed up some terms of a proposed order for bail, which I understand are acceptable to Mr Tilmouth for the Commonwealth, is that right?
MR GRACE: That is so, your Honour.
KIRBY J: The only small alteration that I would make is in condition No 3. It says that the sum of $5,000 be forfeited to the “Commonwealth Crown” – I think it is just to the “Commonwealth”, not to the “Commonwealth Crown”.
MR GRACE: Yes.
KIRBY J: So I will delete “Crown”, but otherwise those orders for bail will be made. Have you gone through those orders with your client, so that he understands them?
MR GRACE: Yes, I have, your Honour, in detail.
KIRBY J: And he is agreeable to entering upon bail before the Sheriff of the Supreme Court of this State on the conditions which are set out in that document?
MR GRACE: Yes, he is, your Honour.
KIRBY J: Very well. The Court will, as earlier announced, grant special leave in this matter. It will inform the parties in due course whether it is possible to list the matter with the case of Johnson v The Queen in Perth, or otherwise direct the hearing of the matter. The applicant – now appellant ‑ will be admitted to bail by me on the conditions that are set out in the document that has been handed to the Court, both pages of which I initial, deleting one stated provision in paragraph 3. Otherwise, they will be the conditions of the bail of Mr Putland.
MR GRACE: Thank you, your Honour.
KIRBY J: He will enter that bail before the Sheriff this afternoon, before he departs the precincts of the Court.
MR GRACE: Yes, he will.
KIRBY J: Very well. I will hand the document back to the Registrar.
AT 2.19 PM THE MATTER WAS CONCLUDED
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