R v Baker

[2000] SASC 281

R v BAKER
[2000] SASC 281

Criminal: 
Application for Bail

1................ Gray J The applicant seeks bail pending the hearing of an appeal against conviction and sentence.  Immediately prior to ruling on this application I granted the applicant leave to appeal against conviction and sentence.

1. The applicant was convicted by a jury of providing a benefit to a witness in judicial proceedings, contrary to s.244(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced by Judge Vanstone on 21 July 2000. Her Honour imposed a sentence of two years and three months imprisonment, fixed a nonparole period of one year and declined to suspend the sentence.

2. S.10(2) of the Bail Act 1935 (SA) provides:

   "Where the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail."

3. Cox J in Beshara & Kleut v Paphitis[1] considered the construction of s.10(2) and whether there was a presumption in favour or against bail being granted. His honour considered there to be no presumption in favour of a grant of bail as in the case of an application for bail before conviction. Such an application is governed by s.10(1). The different language of sub-s.2 makes it plain that there is no presumption in favour of the applicant following conviction.

   [1] (1987) 136 LSJS 16

4. Cox J found no need to resolve the question of any possible presumption strictly so-called against the applicant. His Honour said:

   "A convicted person who is seeking bail pending his appeal has the task of satisfying the bail authority that his is a proper case for the grant of bail. In considering that application, all the general matters that were referred to by the learned Chief Justice in Giordano, some of them important matters of policy, will have to be taken into account, as well as those matters that may be urged in a particular defendant’s favour. It is certainly not correct, in my opinion, that the only consideration that matters, when an application is being made for bail pending an appeal, is whether the defendant will be present when his appeal is heard.

   Nor is the Court restricted to the other factors that are set out in s.10(1) of the Act. The careful differentiation of language that Parliament has made in fashioning sub-ss. (1) and (2) of s.10 makes that clear."

5. These remarks of Cox J were approved by Legoe J in R v Amuso[2].

   [2] (1987) 137 LSJS 258 at 260

6. The Act confers a judicial discretion.  That discretion is not to be fettered by adjectives such as "special" or "exceptional".  It is necessary for the applicant to establish appropriate grounds for the exercise of discretion in his favour.  In my view there is no presumption for or against a grant of bail following conviction.

7. In Rv Flanigan[3] Debelle J emphasised the unfettered nature of discretion. He said :

   "To assert that an unfettered discretion is consistent with the proposition that bail will only be granted in exceptional circumstances is, with respect, not correct. The very conclusion that bail will only be granted in exceptional circumstances is, in fact, to fetter the exercise of the discretion. Had it been the intention of Parliament to restrict the exercise of the discretion in some way, it would have expressed s.10(2) in quite different terms. Certainly, it would not have invested the court with an unfettered discretion. The discretion is, of course, to be exercised judicially, having regard to all relevant factors."

   [3]      Judgment No S5937 delivered 25 November 1996

8. The applicant submits that there are a number of factors, which, taken cumulatively, justify an exercise of discretion in his favour.  The first is a challenge to the conviction and penalty on what is said to be substantial grounds.  His age (57 years), good character and lack of prior convictions were also emphasised, as was his long and distinguished record of community service in the Whyalla area.  His ill health, in particular his history of spinal disorder, cancer treatment and mild stroke were identified, as was the fact that he is not a bail risk (this was not disputed by the DPP).

9. Detailed submissions have been made by both counsel in regard to the suggested errors of the learned trial judge. It is not appropriate to express any view in regard to the strength or weaknesses of the grounds of appeal. It cannot be said that the appeal is without prospects.  It is to be noted that the DPP conceded that there should be a grant of leave on certain grounds.

10. In my view there should be a grant of bail.  In granting bail I have had  regard to the cumulative effect of the particular circumstances of this matter, including the applicant's age, health, good character, prior good record and general antecedents.  In addition in my view, there is some prospect of the appeal succeeding.

11. I will hear counsel as to the conditions of bail.

JUDGMENT CITATIONS
LISTED IN ORDER AS THEY APPEAR IN JUDGMENT

(1987) 136 LSJS 16

1. (1987) 137 LSJS 258 at 260

2. Judgment No S5937 delivered 25 November 1996