Re Walters
[2001] QSC 330
•7 September 2001
SUPREME COURT OF QUEENSLAND
CITATION: Walters, Re [2001] QSC 330 PARTIES: DARRELL CHRISTOPHER WALTERS
(applicant)FILE NO/S: S 7643 of 2001 DIVISION: Trial Division PROCEEDING: Application for bail ORIGINATING COURT: Brisbane
DELIVERED ON: 7 September 2001 DELIVERED AT: Brisbane HEARING DATE: 5 September 2001 JUDGE: Holmes J ORDER: The application for bail is dismissed. CATCHWORDS: COURTS – JURISDICTION
CRIMINAL LAW – BAIL
Application for bail – whether Supreme Court has jurisdiction where applicant arraigned and plea entered in District Court – whether “a proceeding wherein a person is to be sentenced” is met for the purposes of s10(2) Bail Act 1980 where only arraignment has occurred – whether alloctus signals commencement of sentencing proceedings.R v Wren [2000] 1 Qd R 577
Downes Transport Pty Ltd v Kropp [1959] Qd R 402
R v Shillingsworth [1985] 1 Qd R 537Bail Act 1980
COUNSEL: Mr J C Davis (solicitor) for the applicant Mr A Dara for the respondent SOLICITORS: Ryan & Bosscher for the applicant Director of Public Prosecutions (Qld) for the respondent
Background
The applicant seeks bail in respect of four charges of possession of a dangerous drug, one charge of production of a dangerous drug, one charge of possession of property suspected of being stolen, one charge of possession of a utensil, six counts of unlawful possession of a motor vehicle with circumstances of aggravation, and four counts of fraud with a circumstance of aggravation.
In respect of the vehicle and fraud charges it is alleged that the applicant sold or attempted to sell a number of motor vehicles on which the original VIN plates had been removed and replaced with plates from wrecks. The two fraud charges relate to the obtaining of money from purchasers of vehicles. It is said that when the police searched the applicant’s shed, they found engine number stamps, grinding tools, a number of VIN plates and a wreck which had its plates removed.
The applicant pleaded guilty to those charges at committal on 16 September 1999. He was committed for sentence to the Southport District Court sittings commencing on 22 November 1999 and was given bail. On 2 February 2001 police searched the applicant’s premises. As a result of what was found, he was served with a notice to appear in respect of charges of possession of cannabis, MDMA, methyl amphetamine, precursor chemicals, and a utensil, and production of methyl amphetamine. The quantities of the dangerous drugs allegedly found do not appear to have been large: 4 grams of cannabis, 6 tablets containing MDMA, and 2 grams of methyl amphetamine. The quantities of precursor chemicals are not specified. It appears that he was granted bail on those charges.
The material does not show what occurred in the District Court in the period after the applicant’s committal for sentence there. The applicant's solicitor, Mr Pickett, says in his affidavit that on 28 May 2001 a warrant issued for the applicant’s arrest due to the fact that he had failed to appear for sentence in the District Court at Southport. According to the affidavits of the applicant and Mr Pickett, they discussed matters the day after the warrant issued. The applicant (who, it seems, was in Melbourne at that time) indicated that he would return as soon as possible to Queensland. It was left on the basis that he would contact Mr Pickett’s office to arrange his surrender on the warrant and the re-listing of the matter for sentence. In his affidavit the applicant explains that he understood the date in question to be a call-over appearance which he was not required to attend. He says that he came back to Queensland intending to “do something” about the warrant; but he does not indicate that he in fact did anything.
According to a QP9 put in evidence by the Crown, the applicant was located at the Brisbane Domestic Airport on 11 July 2001. He was found in possession of a brown powder which the QP9 asserts, he identified as his “whizz”, obtained prior to travelling to Melbourne. It is alleged that he took part in a record of interview in which he agreed with the accounts of the events as alleged in the QP9. As a result of the events at the airport the accused was charged with possession of the dangerous drug, methylamphetamine.
On 13 July 2001, the applicant was taken before the District Court at Southport. A “Verdict and Judgment Record” put in evidence by the Crown shows that a plea of guilty to the possession of motor vehicle and fraud counts was entered, and the accused was remanded in custody. The presiding judge was his Honour Judge McLauchlan QC. There is no indication as to whether the allocutus was administered at that stage, nor whether the applicant applied for bail.
Jurisdiction
The Crown contends that s 10(3) of the Bail Act 1980 prevents this Court from entertaining the application for bail. Section 10 of the Bail Act reads as follows:
“10 (1) The Supreme Court or a judge thereof may, subject to this Act, grant bail to a person held in custody on a charge of an offence, or in connection with a criminal proceeding, or enlarge, vary or revoke bail granted to a person in or in connection with a criminal proceeding whether or not the person has appeared before the Supreme Court in or in connection therewith.
(2) Notwithstanding that a person has been given in charge to the jury in connection with the person’s trial commenced in the Supreme Court or the District Court the trial judge may in the trial judge’s discretion exercise the powers conferred on a court by section 8(1) to grant bail to that person or to enlarge, vary or revoke bail already granted to the person.
(3) A decision as to bail made in accordance with subsection (2) by a trial judge shall be final and, notwithstanding this Act, a defendant in respect of whom such decision has been made shall not have the right to make a further application for bail in relation to the custody in which the defendant is then held.”
The effect of s 10(3) was considered by the Court of Appeal in R v Wren [2000] 1 Qd R 577. In that case the appellant had pleaded guilty to two counts before a District Court Judge. The allocutus had been administered and the sentencing procedure commenced when the sentencing judge decided that it was appropriate to adjourn to obtain a further psychiatric report. He remanded the appellant in custody, refusing an application for bail. On application to this Court for bail, White J held that there was no jurisdiction to entertain the application because of the effect of s 10. That conclusion was upheld by the court on appeal. The provision was, the Court of Appeal said, not limited in its compass to applications for bail in jury trials, by virtue of the definition of “trial” in s 6 of the Act:
“‘Trial’ means a proceeding wherein a person is charged with offence on indictment and includes a proceeding wherein a person is to be sentenced”.
At the conclusion of its judgment the court observed that
“section 10(2) is a legislative recognition of the desirability or orderly trials unimpeded by interlocutory appeals once proceeding commence before a trial judge” (at page 579).
One possible view is that a sentencing proceedings does not commence until the allocutus is administered. That would be consistent with what was said by his Honour Williams J (as he then was) in R v Shillingsworth [1985] 1 Qd R 537 at 543;
“…the accused person stands before the court to be sentenced once the court has accepted the guilty verdict or plea by administering the allocutus”.
In the present case, of course, there is no suggestion that the allocutus was administered. That may, however, be too narrow a view for the purposes of the Bail Act.
It follows from the definition of “trial” in s 6 that s 10(2) is to be read as conferring on a judge who has embarked upon “a proceeding wherein a person is to be sentenced” the power to grant bail, which is made exclusive by subsection (3). “Proceeding” is not defined in the Bail Act. In the absence of any assistance from the statute itself or from authority as to when “a proceeding wherein a person is to be sentenced” may be said to commence, I can only attempt to construe s 10 and the definition of “trial” in s 6, so far as it is relevant, in accordance with first principles.
There are a number of matters which point to a conclusion that the expression “a proceeding wherein a person is to be sentenced” should not be construed as being met for the purposes of s10(2) when nothing more than an arraignment has occurred. Firstly, the Bail Act is remedial legislation. Insofar as there are alternative meanings available, that which advances the purposes of the Act in ensuring the entitlement of the individual to seek release from custody should be advanced. Secondly, the jurisdiction of the court is not to be regarded as ousted except by clear words:
“The fundamental rule is that words purporting to take away the authority of the court to determine legal rights must be construed strictly” Downes Transport Pty Ltd v Kropp [1959] Qd R 402 at 409.
Thirdly, accepting that the purpose of s 10(2) is, as the Court of Appeal observed in Wren, the achievement of “orderly trials unimpeded by interlocutory appeals once proceedings commence” there seems no impediment to the achievement of that aim in the construction I propose. In this circumstance, nothing more has happened than arraignment; so that there are no actual sentencing proceedings on foot to be disturbed. It is difficult to see what disruption can occur by maintenance of the broader jurisdiction to grant bail.
Indeed, in practical terms the consequence of a construction of “a proceeding where a person is to be sentenced” which was met merely by arraignment, would have most inconvenient consequences. The present case affords an example. The District Court judge before whom the applicant was brought in Southport was, in fact, a visiting judge and, having remanded the applicant, was most unlikely to have anything further to do with him by way of sentence. On the construction contended for by the Crown, no application for bail could be made in the Southport
jurisdiction, notwithstanding that was where the indictment was presented, but would have to be brought in the Brisbane jurisdiction, before the judge before whom the matter had been mentioned.
Finally, having regard to the ordinary and natural meaning of the words, it is a strained construction indeed which regards a judge who, in the course of conducting a series of criminal mentions has an accused arraigned in order to get his plea on the record, with no expectation or likelihood of finally dealing with the matter, as having embarked on a “proceeding wherein a person is to be sentenced”.
I conclude, therefore, that s10(2) has no application here. Jurisdiction exists in this court to hear the bail application in respect of all charges, notwithstanding the fact of the accused’s plea in the District Court to some of them.
However, having found that the court has the power to grant bail in such a case, I do not think in the present instance that it should be exercised in favour of the applicant. He applicant advances in support of his case the offer of a surety of $5,000, and the opportunity of employment as a brick layer. He is prepared to undergo counselling and treatment from a psychotherapist. His mother is prepared to have him reside at her address. But he is in a show cause situation in relation to the drug charges, since it is alleged that they were committed while he was on bail. He has a previous conviction of two counts of possession of dangerous drugs, specified in schedule 2 and 3, in this Court on 24 September 1999 for which he received a sentence of imprisonment of two years six months, suspended after three months with an operational period of two years and six months. The commission of the drug-related offences of February 2001 and July 2001, if established, would constitute breaches of that suspended sentence.
There has already, of course, been the breach by the applicant of his obligations under his bail in his failure to appear for sentence. Even accepting that was inadvertent, it seems most improbable, from the account of the accused’s location at the airport, that he had any intention to surrender himself or appear. His affidavit indicates that the earliest sentence listing he can achieve in the District Court is 29 October 2001. However, it seems to me extremely probable that he will, given the background of the District Court offences, receive a substantial term of imprisonment, so that there can be no argument even if the sentence were to take place later in the year, that the time spent on remand is likely to be excessive proportionate to any likely sentence.
Accordingly I conclude that the applicant has not shown cause why his detention in custody is not justified within the meaning of s 16(3) of the Bail Act. There is, in any event, in my view, an unacceptable risk that the defendant, if released, would fail to appear and surrender into custody. The application for bail is dismissed.
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