Re Egglestone
[2014] VSC 666
•22 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0201
IN THE MATTER of an application for bail
by TARA EGGLESTONE
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JUDGE: | BEACH JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 December 2014 | |
DATE OF JUDGMENT: | 22 December 2014 | |
CASE MAY BE CITED AS: | Re Egglestone | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 666 | |
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CRIMINAL LAW – Bail – Application for bail following conviction – Application for bail after appeal from Magistrates’ Court to County Court heard and determined – Application for bail pending hearing of application for judicial review – Judicial review application out of time.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Nida | – |
| For the Crown | Mr MD Thompson | Mr C Hyland, Solicitor for Public Prosecutions |
HIS HONOUR:
On 30 July 2014, the applicant pleaded guilty in the Magistrates’ Court and was sentenced in respect of 26 driving-related offences. The applicant was sentenced to a term of imprisonment of four months as part of an aggregate sentence in respect of a number of these charges and convicted and fined a total of $600 in respect of the remaining offences. The applicant then appealed to the County Court against the sentence imposed in the Magistrates’ Court. On 9 September 2014, the applicant was again convicted of all offences and was again given an aggregate sentence of four months’ imprisonment and fined $600.
The offending for which the applicant was sentenced occurred between May 2011 and February 2014. Ten of the offences were for driving whilst disqualified or driving while authorisation was suspended, and four of the offences were for failing to answer bail. Further, the applicant, who was 24 years of age at the time of sentencing, did not fall to be sentenced as a first offender.
Since being sentenced in the County Court, the applicant has been in custody serving the term of imprisonment imposed upon her. She is due for release in early January 2015 (some two to three weeks from today).
On 5 December 2014, the applicant filed an application for bail in this Court. The applicant having exhausted her rights of appeal, there was, at that time, no basis for the application for bail.
However, on 11 December 2014, the applicant commenced judicial review proceedings under O 56 of the Supreme Court (General Civil Procedure) Rules 2005, seeking an order quashing the convictions and sentences imposed on the applicant in the County Court on 9 September 2014.[1] Insofar as the applicant seeks to quash her convictions (or any of them), it should be noted that the applicant pleaded guilty to all charges in the Magistrates’ Court, and the appeal in the County Court was only an appeal against sentence. In the circumstances it seems hard to conceive how the applicant might succeed in having any of her convictions set aside in the judicial review proceeding.
[1] S CI 2014 06598.
In rolled-up grounds, said to support the relief the applicant seeks in the judicial review proceeding, the applicant variously makes complaint that she was denied procedural fairness and/or the court refused to exercise jurisdiction and/or there was an error of law on the face of the record and/or there was a denial of natural justice. In these rolled-up grounds, specific complaint is made that the court misapprehended the applicant’s moral culpability in respect of some of the offences and/or failed to give any or any sufficient consideration to the applicant’s mental health and/or the impact of any custodial sentence on the applicant and/or the applicant’s age and/or the evidence said to have been tendered before the judge. Additionally, complaint appears to be made that the judge who heard the appeal ‘fail[ed] to extend mercy to [the applicant] by reason of the mental circumstances and/or family circumstances of [the applicant] even if those circumstances fell short of exceptional circumstances’. Finally, there appears to be a complaint that the judge ‘fail[ed] to acknowledge and/or classify the circumstances in the case before him as occasioning exceptional hardship’ to the applicant’s children.
A first directions hearing is scheduled in the judicial review proceeding, before an Associate Judge, on 23 February 2015. On 15 December 2014, the applicant filed an affidavit in support of her application for judicial review (‘the 15 December affidavit’). The 15 December affidavit is a somewhat tendentious document that makes assertions at a fairly high level of generality. Much of the material in this affidavit does not appear to have any great relevance to the relief sought by the applicant in the judicial review proceeding. Indeed, some of this material appears to be directed merely at the issue of whether the applicant should be granted bail (and more particularly, as if that issue was being considered at a time before the applicant had in fact been convicted).
This is the hearing of the applicant’s application for bail filed on 5 December. The application for bail is predicated upon what the applicant says are her prospects of success in obtaining an order in the judicial review proceeding overturning her convictions and/or quashing the sentence imposed in the County Court.
In support of her application for bail, the applicant has filed an affidavit, sworn by her on 3 December 2014. I interpolate that the 15 December affidavit appears to be a cut and paste of the 3 December affidavit. In the 3 December affidavit, the applicant asserts that she seeks bail on an urgent basis because of a deteriorating mental condition and the fact that she is being bullied by some prisoners on a daily basis. The affidavit refers to the applicant’s personal circumstances, including her age, the ages of her children and certain medical matters. Additionally, the applicant deposes to the County Court proceeding being conducted by a lawyer (not counsel who appears on this application) contrary to the applicant’s instructions.
In both of her affidavits, the applicant asserts that she gave instructions to her lawyer in the County Court that she had a defence to one of the driving without a licence charges and one of the driving whilst not authorised charges. It is of course to be remembered that there were ten of these charges, all of which the applicant had, at least, pleaded guilty to in the Magistrates’ Court. That said, the applicant deposes to no other facts which might suggest that she has or had a defence to the remaining 24 charges.
In the light of the applicant’s affidavits, I called for, and have now read, the transcript of the hearing before the County Court. Contrary to the applicant’s submissions, nothing in that transcript suggests that the applicant was denied procedural fairness or natural justice. While, as is the nature of things in such proceedings, the reasons of the judge for imposing the same sentence as was imposed in the Magistrates’ Court are brief,[2] nothing about those reasons suggests to me that the applicant has any realistic prospects of establishing an entitlement to any of the relief she seeks in the judicial review proceeding.
[2] See generally, Ta v Thompson [2013] VSCA 344.
In asserting that she is entitled to relief in the judicial review proceeding, the applicant makes complaint about the failure of the County Court judge in his reasons to set out all of the relevant background and submissions relied upon by her in support of a non-custodial disposition. From this it is contended that the judge failed to take these matters into account. I reject this submission. As has been said many times before, a judge is not required to set out every fact or argument relied upon by a losing party. To suggest that a judge has not considered a party’s case is a serious charge, which should not be accepted unless the record or evidence persuasively suggests that the judge failed to discharge his or her paramount judicial duty.[3]
[3] See Whisprun v Dixon (2003) 77 ALJR 1598, 1610 [62]-[63] (Gleeson CJ, McHugh and Gummow JJ).
The applicant’s application for bail faces significant hurdles. First, apart from the applicant’s untested and high level nature of the assertions made about the conduct of her County Court appeal, there is, as I have said, no material before this Court that might enable the Court to conclude that the applicant has any real prospects of ultimately overturning any of her convictions (let alone all of them), or quashing the sentence imposed upon her. Further, there is no material from which this Court could conclude that even if, in what appears to be the most unlikely event, the convictions were overturned and/or the sentence was quashed, the applicant would, in any remitted hearing, have any reasonable prospects of escaping conviction and/or a similar term of imprisonment to that already twice imposed.
The next problem for the applicant is that her Judicial Review proceeding was issued beyond the 60 day time limited specified in r 56.02(1). In order to obtain an extension of time, the applicant must show special circumstances within the meaning of r 56.02(3). Again, the material relied upon in this application does not enable the Court to form any favourable view as to the applicant’s likelihood of establishing special circumstances so as to enliven the Court’s discretion to extend time for the issuing of the judicial review proceeding. At best it might be said (generously) for the applicant that her prospects of success in obtaining an extensions time are speculative.
Finally, it is well established that bail is only granted in exceptional circumstances after conviction from which there is no right of appeal. It is sufficient to say for the purposes of this application that nothing in the material relied upon by the applicant comes close to establishing the exceptional circumstances required to be shown before a grant of bail could be contemplated in this case. While is some cases the fact that an applicant’s sentence might be wholly served before judicial review proceedings are heard might be a basis for granting bail pending the hearing and determination of the review proceeding, this is not such a case. The applicant’s lack of any real prospects of success in the judicial review proceeding, the applicant’s delay in commencing proceedings and the applicant’s relatively poor history so far as bail compliance is concerned all tell against a grant of bail.
There being no basis upon which bail can or should be granted in this case, the application for bail will be refused.
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