R v PETER DANIELS CLARKE II [2001] ACTSC 39 (7 May 2001)
CATCHWORDS
CRIMINAL LAW – bail – review of bail decisions – balancing process between risk of flight and need for applicant to be at liberty to instruct legal advisers – onus on Crown to prove likelihood of flight – bail granted.
Bail Act1992 ss 3, 8, 9, 10, 12, 19, 22, 33, 43, 45
Clarke v R [2000] FCA 518
Dunstan v DPP (ACT) (1999) 92 FCR 168
Niemann v Electronic Industries Ltd [1978] VR 431
Johnsen v Dunstan (1999) 150 FLR 158
No. SCC 146 of 1999
Judges: Higgins, Crispin & Ryan JJ
Supreme Court of the ACT
Date: 7 May 2001
IN THE SUPREME COURT OF THE )
) No. SCC 146 of 1999
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
PETER DANIELS CLARKE II
REASONS FOR RULING
Judges: Higgins, Crispin & Ryan JJ
Date: 7 May 2001
Place: Canberra
The applicant, Peter Daniels Clarke II, was on 8 July 1997 charged with a number of offences under the Corporations Law. In essence, he was alleged to have abused his position as a director of Burns Philp Trustee Company (Canberra) Ltd (“Burns Philp”) so as to defraud clients of that Company of a large sum of money, in excess of $4,000,000.
He was apprehended in the United States of America in August 1997 pursuant to a warrant alleging the above offences and to a request to the US government for extradition. The maximum penalty for each of those offences is 10 years imprisonment.
The applicant was held in custody pending completion of those proceedings. He was extradited in March 1998. He was refused bail in the Canberra Magistrates Court. The applicant was, on 14 September 1998, granted bail by this Court. As at 24 September 1998, when Miles CJ refused an application for a temporary stay of proceedings, he had not obtained the necessary sureties to meet the conditions imposed.
Shortly thereafter, however, such sureties were provided and the applicant was then conditionally at liberty.
Bail continued thereafter, with some variations to the conditions thereof, until 2 March 2000.
Prior to that date, on 27 January 2000, the applicant had, following negotiations with the Crown, been charged on a fresh indictment containing five counts alleging fraudulent conduct contrary to the Corporations Law. The maximum penalty for each of those offences is 5 years imprisonment. The sums involved, however, still exceeded $4,000,000. On 27 January 2000, the applicant was arraigned on that indictment before Gallop J, and entered pleas of guilty to the five counts contained therein.
Although an agreed statement of facts had yet to be settled, his Honour promptly accepted those pleas and recorded convictions thereon. At that stage a solicitor, Mr Theakston of Saunders & Company Solicitors, appeared for the applicant. Mr Theakston raised no objection to the course his Honour took. The matter was then adjourned to 2 March 2000 for the sentencing proceedings to continue.
Mr Theakston advised the Court that…
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