R v McKelliff No. Sccrm-03-222

[2003] SASC 357

R v  McKELLIFF

[2003] SASC 357

Criminal

1. GRAY J:  This is an application for bail following conviction and pending appeal.

2. Section 10(2) of the Bail Act 1985 (SA) provides that where an applicant has been convicted of the offence in respect of which he or she has been taken into custody, the presumption in favour of bail no longer applies and the bail authority has an unfettered discretion as to whether the applicant should be released on bail[1]. It is necessary for the applicant in the present case to establish a basis for the exercise of the discretion in his favour. A number of decisions have considered s10(2) and have recognised that the discretion is unfettered[2].

   [1] Section 10(2) - 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.

   [2]  R v Blayney [2002] SASC 184, Beshara & Kleut v Paphitis (1987) 136 LSJS 16; R v Amuso (1987) 137 LSJS 258; R v Baker [2000] SASC 281

3. The applicant has filed an affidavit and submissions have been made by his counsel in support of the application for bail. Matters emphasised included the fact that the applicant would have had work, that there were guarantors available and that the applicant had a need to be on bail so that he would be better able to arrange for the financing of his legal representation on the appeal. It was suggested that he would need some months to make those arrangements.  Counsel advised that the applicant would undertake to have no association with nightclubs having regard to the sentencing judge’s conclusion that he had been involved in commercial drug dealing.

4. In Ex parte Mahr[3], Thomas J considered an application for bail pending the hearing of an appeal following conviction and an order for imprisonment. A number of concerns that arise in an application for bail following conviction were identified.  Thomas J noted that a grant of bail would make the conviction appear contingent until confirmed, that it placed a court in an invidious position of having to return to prison a person whose circumstances may have changed dramatically during a period of liberty on bail, that it undermined the judicial system in having a recently sentenced man walk free, and that it undermined the public interest in having a convicted person serve their sentence as soon as practicable.

   [3] [1986] 1 Qd R 303

5. In Blayney I observed that the possibility of home detention with electronic monitoring militated against the suggestion that a person convicted of an offence but granted bail pending appeal was “walking free”.

6. In this matter there is a need to weigh all of the above considerations.  Regard must be had to the serious nature of the offending and it is of relevance to note that the sentencing judge accepted the submission of the Crown that the applicant had been involved in a commercial operation and that the applicant’s purpose was one of profit. This is an important consideration that militates strongly against bail in the present case.  It is likely that the appeal in this matter can be heard promptly.  Any delay before the hearing of the appeal should be minimal.

7. Having regard to the submissions put to me by counsel and all of the above considerations, the application is refused.

   JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

   1Section 10(2) - 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.

   2R v Blayney [2002] SASC 184, Beshara & Kleut v Paphitis (1987) 136 LSJS 16; R v Amuso (1987) 137 LSJS 258; R v Baker [2000] SASC 281

   3      Ex parte Mahr [1986] 1 Qd R 303