R v Collins No. Sccrm-01-308 - [2002] SASC 2

R v COLLINS
[2002] SASC 2
BAIL APPLICATION

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] SASC 2
Decision Date: 18 January 2002

CaseChat Overview and Summary

The case before the court involves Mr. Collins, who is seeking special leave to appeal against a decision of an intermediate court. The intermediate court had made findings that there was no error in its decision. Mr. Collins is not appealing the decision but is seeking special leave to appeal. The legal issues before the court were whether the intermediate court had erred in its findings and whether Mr. Collins had demonstrated exceptional circumstances that warranted special leave to appeal. The court held that the intermediate court had not erred in its findings and that Mr. Collins had not demonstrated any exceptional circumstances that warranted special leave to appeal. The court therefore refused Mr. Collins' application for special leave to appeal. The court's decision was based on the principle that special leave to appeal should only be granted in exceptional circumstances and that the intermediate court's findings should be given deference unless there is clear evidence of error. The court found that there was no such evidence in this case. The court's decision was final and binding, and Mr. Collins was not granted special leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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