R v Collins No. Sccrm-01-308

[2002] SASC 2

R v COLLINS

[2002] SASC 2

BAIL APPLICATION

1. Gray J                  This is an application for bail pending an application for special leave to the High Court.

   Background

2. Robert Wayne Collins has a lengthy history of dishonesty offences, which dates back to 1973.   He has been imprisoned almost continuously since 1994.  The offence to which this application relates was the first involving drugs. 

3. On 26 May 2000 Mr Collins was convicted of being knowingly concerned in the importation of cannabis, contrary to section 233B of the Customs Act 1901 (Cth). The offence was committed whilst Mr Collins was in custody. He appealed against his conviction. No complaint was made with respect to sentence.

4. On 30 October 2000, following a grant of leave to appeal to the Court of Criminal Appeal, Mr Collins made application for bail before a single judge of this court.  In support of his application he said:

   “Mr Collins:      My application is to apply for simple bail to keep my security rating, as I’ve set out in my affidavit before the court; just to keep my security rating down to what it has been.  I’ve been in prison too long, virtually since 199 –

   His Honour:                Explain to me why it is that your security rating would be affected?

   Mr Collins:Because of the current matter with the cannabis.  My security rating was put up to [intermediate] and I was brought back from the Adelaide Pre-release Centre to Yatala.  If I was given simple bail, I could be moved back to Adelaide Pre-release Centre and continue with my rehabilitation and resocialisation.

   His Honour:                How long are you to remain in gaol on the other matters?

   Mr Collins:        22 February 2002.

   His Honour:      If you were granted bail in respect of your present, the last conviction, you would remain in gaol but at the prerelease centre?

   Mr Collins:Yes, and continue with my resocialisation and education studies.”

5. The judge granted bail.   His ex tempore remarks included the following:

   “The applicant seeks bail simply so he may preserve his position within the Correctional Services system.  If he is granted bail in respect of the offence for which he was convicted in May 2000, he would be entitled to remain at the Adelaide Pre-release Centre.  Whilst at the Adelaide Pre-release Centre, he is able, from time to time, to be released for the purpose of assisting his mother who is 89 years of age and who resides at Lockleys.

   If bail is refused, it will mean that the applicant can no longer remain in the Adelaide Pre-release Centre, but must be returned to Yatala where he will remain until such time as the Court of Criminal Appeal reaches a decision in relation to his appeal.

   He has deposed, in his affidavit, to having an exceptional prison record with no reported instances.  He says he has an exceptional work record within the prison system assisting other prisoners with their many problems.  Whilst he is in the Adelaide Pre-release Centre, he will receive further education which will assist him, so he says, in his rehabilitation, if he is to be released, in connection with the sentence which he’s presently serving, in early 2002.

   Ordinarily a prisoner, once convicted, would not obtain bail pending an appeal. This, however, is, as I said in opening, a most unusual circumstance.  If I grant bail to Mr Collins, it will not mean that he will be released from prison; only that he will serve his time at the Adelaide Pre-release Centre rather than at Yatala.

   It seems to me that if Mr Collins is to be rehabilitated, it will be best that he pursue the present course of rehabilitation.  In those circumstances, even though it is unusual, I grant Mr Collins bail.[1]”

   [1]        Page 5, Transcript, 30 October 2000.

6. On 8 August 2001 the Court of Criminal Appeal dismissed Mr Collin’s appeal.  Mr Collins now seeks special leave to appeal to the High Court.

   The Applicant’s Case

7. In support of the present application for bail Mr Collins provided a further affidavit[2].  It outlined the events that have occurred since bail was granted:

   “The Department for Correctional Services (DCS) refused to take into consideration this bail agreement and it was stated that they did not have to take any notice of what the court say with respect to any bail agreement.

   On the 24 November 2000, I filed a judicial review, applying for a declaration the DCS acted wrongly and without good faith.

   The DCS settled this matter in August of 2001 and the Prisoner Assessment Committee (PAC) assessed me to be returned the Adelaide pre Release Centre (APC) in early August 2001. This transfer was to take place on 8 August 2001.

   On the 7 August 2001 the judgment from the Court of Criminal Appeal and handed down against me.

   The transfer to the cottage was cancelled.”

   [2]        Sworn 29 October 2001.

8. Mr Collins went on to identify what he claimed were exceptional circumstances justifying his present application:

   “The exceptional circumstances are:

   -I was housed at APC from December 1999 until I was brought back to Yatala Labour in May 2000 albeit His Honour Justice Olsson and the Crown agreed that I should remain at APC after I was found guilty. I understand that His Honour could only recommend I should remain at the APC.

   -Whilst at the APC I was able to attend my 90 year old frail Mother’s home at Lockleys and attend to her urgent maintain and other personal matters every Saturday for 20 hours.

   -My rehabilitation programs have been frustrated by the DCS not returning my computer which I have had in my possession since 1994.

   -The computers in the education centre do not have and will not run the programs I have purchased for my rehabilitation.

   -His Honour Justice Olsson stated during sentencing submissions on 7 July 2001 the non return of my computer on page 9 ‘It seems to me that this is an area in which I may properly have [regard] to your conduct in prison, and your attempts to further your capacity for gainful and lawful activity when you are released on [parole]. The making of a confiscation order would be both draconian and counter productive in terms or your potential rehabilitation. I exercise my discretion against making it.

   - I am also studying Bachelor of Theology subjects and I need to attend the Adelaide College of Divinity to assist me with these subjects … 

   -       I have an exceptional prison record with no reported instances.

   - I have an exceptional prison record within the prison system assisting other prisoners with their problems.

   - I have written training programs and tutored prisoners in skills of computer aided drafting and powder coating.  I am qualified to complete these tasks. I have obtained a Certificate IV Assessor and Workplace Trainer.

   - I have commenced but not completed a series of safety instruction for the engineer’s shop at Yatala Labour Prison YLP. I cannot complete this task because all the details are stored within my computer.

   - I need time to readjust myself back into the community but the DCS are frustrating my attempts.

   - I have been teaching myself Web page design and Multimedia presentation but I need to attend college to complete these studies ready for my release.  I have completed other educational studies.

   - I have completely addressed my past offending behaviour and I am in need of resocialisation with the community and my family.

   - My appeal to the High Court of Austral and a civil matter before the Court 948 of 2001 are all now frustrated. I do not have any access to research materials that are stored within my computer.

   - I am not asking to be released until the hearing of my High Court Appeal or the expiration of my sentence.

   - I ask the Honourable Court to order a simple bail agreement to assist in my resocialisation and attention to my legal matters both appeal to the High Court and civil matters, but importantly to be able to assist my frail Mother and my rehabilitation.”

   The Crown Case

9. The Crown opposed bail.  It was submitted that Mr Collins had no further appeal as of right. It was pointed out that his appeal had been unanimously rejected by the Court of Criminal Appeal and that he made no complaint about sentence. It was submitted that there were no exceptional circumstances which justified a grant of bail.  It was said that Mr Collins’ complaints about his treatment in prison should be addressed to the prison authorities and that these complaints were not relevant matters to advance in support of an application for bail. As a consequence bail should be refused and the sentence imposed served.

   The Nature of Bail

10. The concept of bail evolved to give effect to the presumption of innocence and the right to liberty:

    “When the administration of justice was in its infancy, arrest meant imprisonment without preliminary inquiry till the sheriff held his tourn at least, and, in more serious cases, till the arrival of the justices, which might be delayed for years, and it was therefore a matter of the utmost importance to be able to obtain a provisional release from custody…

    The sheriff was the local representative of the Crown, and in particular he was at the head of all the executive part of the administration of criminal justice. In that capacity he, as I have already shown, arrested and imprisoned suspected persons, and, if he thought proper, admitted them to bail. The discretionary power of the sheriff was ill defined, and led to great abuses, which were dealt with by the Statute of Westminster the First (3 Edw.1, c.12, AD 1275)[3].”

    More recently, bail has been defined as

    “[t]he right to be released from custody granted to a person charged with an offence, on the condition that he or she undertakes to return to the court at some specified time, and any other conditions that the court may impose[4].”

    [3]Stephen JF. A History of the Criminal Law of England. London: Macmillan & Co, 1883. Vol 1 at 233-234.

    [4]        Nugh P, Butt P (eds). Butterworths Australian Legal Dictionary. Sydney: Butterworths, 1997.

11. Bail is a mechanism by which the adverse consequences of delay before trial can be minimised.  Where appropriate, it is important for accused persons to be released from custody. A grant of bail places the accused in the care of a surety, as distinct from the custody provided by a prison or the police[5].

    [5]        Donovan B. The law of bail: practice, procedure and principles. Sydney: Legal Books, 1981.

12. Mr Collins is not currently applying for bail to obtain release from custody.  He seeks to “preserve his place” in the correctional system. The sentence imposed as a result of his recent conviction has meant that he has been unable to remain at the Pre-release Centre. At that Centre he enjoyed a low security rating allowing him flexibility and privileges. It is the recent conviction and sentence  that has led to a higher security rating.  Mr Collins contends that this is compromising his rehabilitation.

    The Bail Act

13. The Bail Act 1985 (SA) (“the Act”) has been described as a code for the provision of bail[6]. The terms of the Act do not expressly address bail pending special leave to the High Court. Section 4(1)(c) of the Act provides:

    “The following persons are eligible for release on bail under this Act:

    a person who has been convicted of, and sentenced for, an offence but has not exhausted all rights for appeal against the conviction or sentence, or to have it reviewed;”  

    I consider that the wording of section 4(1)(c) is wide enough to include a bail application pending an application for special leave to the High Court. Mr Collins has not “exhausted all rights of appeal” and he has not “exhausted all rights” to have his most recent conviction “reviewed”. If jurisdiction does not arise under the Act, I consider that the court retains an inherent jurisdiction to grant bail pending the hearing of a special leave application to the High Court.

    [6]        Panagiotidis v Jakacic (1985-1986) 41 SASR 591.

    Bail Pending Special Leave

14. Mr Collins no longer has any right of appeal.  His application for leave is yet to be determined.  The usual practice is to refuse bail pending the hearing of a special leave application when a person has been convicted, and the conviction has been confirmed on appeal. In exceptional circumstances, however, there may be a grant of bail. The High Court has identified that the question to be determined is whether exceptional circumstances exist[7]. 

    [7]Sinanovic  v The Queen(No 1) (2001) 179 ALR 520, Cabal v United Mexican States(No 2) (2001) 181 ALR 169, Marotta v The Queen (1999) 73 ALJR 265, Robinson v The Queen (1991) 65 ALJR 519, Parsons v The Queen (1998) 72 ALJR 1325, Chew  v The Queen[No 2] (1992) 66 ALJR 221, Caratti v The Queen (2001) 1 Leg Rep C1, Peters v The Queen (1997) 71 ALJR 309, Markovina v The Queen (1998) 72 ALJR 1522, Hayes v The Queen (1974) 48 ALJR 455, Kostikidis v The Queen (1996) 71 ALJR 79.

15. In Hayes v The Queen[8] Mason J said:

    “Bail will be granted pending the hearing of an appeal or an application for special leave to appeal from a sentence of imprisonment in an exceptional case only. This case is said to be exceptional because… If the applicant were to succeed in displacing the sentence imposed by the Court of Criminal Appeal and in restoring the order made by the trial judge the applicant would not be liable to imprisonment at all.

    For my part, I doubt whether this circumstance would induce me to grant bail. Bail is not granted in every case where an appeal, if successful, would result in the acquittal of the appellant or in his not serving a term of imprisonment.”

    [8] (1974) 48 ALJR 455 at 455.

16. In Chamberlain v R[9] [No 1] Brennan J said:

    “...in practice the grant of bail pending an application for special leave to appeal to this Court will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending. That is because the cases in which special leave to appeal is sought are usually cases in which an intermediate court of appeal has found neither an appealable error occasioning a substantial miscarriage of justice in the trial nor an error of law affecting the sentence.”

    [9] (1983-1984) 153 CLR 514 at 519.

17. In Sinanovic v The Queen (No 1)[10] Kirby J said:

    “This Court has adopted a test of even greater stringency when the application for bail is made before special leave has been granted. Bail is very rarely granted at that stage, although the power to grant it exists.”

    [10](2001) 179 ALR 520 at [11]. See also Caratti v The Queen (2001) 1 Leg Rep C1 and Peters v The Queen (1997) 71 ALJR 309 where bail was granted.

18. In United Mexican States v Cabal[11] the Full Court of the High Court has emphasised the stringency of the test.  There must be both a likelihood that the applicant will succeed on appeal and that all (or almost all) of the custodial sentence will have been served before the appeal is determined:

    “The history of decisions of this court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied.  First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed.  The grant of special leave will often – perhaps usually – indicate that are strong grounds for so concluding.  Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined.  Thus, in Marotta v R,[12] Callinan J granted bail after special leave had been granted.  His Honour thought that substantial parts of the custodial sentences were likely to have been served and possibly completed in one case by the time the court gave its decision on the appeal.  Furthermore, the grant of special leave indicated that the applicants had at least reasonable prospects of succeeding in their appeals.

    However, a very strong case is required for the grant of bail in a criminal case before the court has granted special leave to appeal.  As Dawson J pointed out in Peters v R:[13]

    [S]ince an application for special leave to appeal against conviction or sentence or both will ordinarily be made after an appellate court has considered the case and found no error, the occasions on which this Court will grant bail are rare indeed.

    Ordinarily, a person will be admitted to bail before the grant of special leave in a criminal case only where the court is satisfied there are very strong grounds for concluding that leave will be granted.  The applicant will also need to show that it is likely that the custodial sentence or the greater part of it will have expired before the application for leave is heard.  It is true that in Pelechowski v Registrar, Court of Appeal[14] bail was granted to a person convicted of contempt of court by the Court of Appeal even though the prospects of succeeding in the application were not regarded as high.  But that case had two special factors.  First, the whole or substantially most of the custodial sentence would have been served by the time the special leave application was determined.  Second, there had been no intermediate appellate review of the decision.  Thus, the case was not one where “an appellate court has considered the case and found no error”.

    When considering an application for bail pending special leave this Court should be guided by the same principles[15].

    [11] (2001) 183 ALR 645 at [41] – [43].

    [12] (1999) 160 ALR 525; 73 ALJR 265.

    [13] (1996) 71 ALJR 309 at 310.

    [14] (1988) 72 ALJR 711 at 712.

    [15]R v Velevski (unreported) [2000] NSWCCA 445 per Barr J at [21]. See also Sinanovic v The Queen (No  1) (2001) 179 ALR 520.

19. A bail application is an inappropriate forum from which to redress what is seen to be inappropriate treatment by prison authorities.  The fact that Mr Collins, if granted bail, may be treated more favourably in prison, is not in my view a relevant consideration.  The purpose of bail is to provide for release from custody.  Applications should not be used to circumvent prison regulations. Other avenues of redress are designed to provide a fair and equitable forum for complaints by prisoners.  Even if treatment within prison is a relevant matter, the withholding of privileges and the resultant consequential effect on rehabilitation in this case do not in my view give rise to exceptional circumstances warranting a grant of bail.

20. In my view the application must be refused for the following reasons:

    -       Mr Collins is not exercising a right of appeal, he is presently

    seeking special leave

    -       the intermediate court has found no error

    -       concerns and complaints advanced by Mr Collins do not give rise to exceptional circumstances.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1Page 5, Transcript, 30 October 2000.

    2Sworn 29 October 2001.

    3Stephen JF. A History of the Criminal Law of England. London: Macmillan & Co, 1883. Vol 1 at 233-234.

    4Nugh P, Butt P (eds). Butterworths Australian Legal Dictionary. Sydney: Butterworths, 1997.

    5Donovan B. The law of bail: practice, procedure and principles. Sydney: Legal Books, 1981.

    6Panagiotidis v Jakacic (1985-1986) 41 SASR 591.

    7Sinanovic  v The Queen(No 1) (2001) 179 ALR 520, Cabal v United Mexican States(No 2) (2001) 181 ALR 169, Marotta v The Queen (1999) 73 ALJR 265, Robinson v The Queen (1991) 65 ALJR 519, Parsons v The Queen (1998) 72 ALJR 1325, Chew  v The Queen[No 2] (1992) 66 ALJR 221, Caratti v The Queen (2001) 1 Leg Rep C1, Peters v The Queen (1997) 71 ALJR 309, Markovina v The Queen (1998) 72 ALJR 1522, Hayes v The Queen (1974) 48 ALJR 455, Kostikidis v The Queen (1996) 71 ALJR 79.

    8(1974) 48 ALJR 455 at 455.

    9(1983-1984) 153 CLR 514 at 519.

    10(2001) 179 ALR 520 at [11]. See also Caratti v The Queen (2001) 1 Leg Rep C1 and Peters v The Queen (1997) 71 ALJR 309 where bail was granted.

    11(2001) 183 ALR 645 at [41] – [43].

    12(1999) 160 ALR 525; 73 ALJR 265.

    131996) 71 ALJR 309 at 310.

    14(1988) 72 ALJR 711 at 712.

    15R v Velevski (unreported) [2000] NSWCCA 445 per Barr J at [21]. See also Sinanovic v The Queen (No  1) (2001) 179 ALR 520.