Rizeq v The State of Western Australia

[2016] HCATrans 274

[2016] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P55 of 2016

B e t w e e n -

JOHN RIZEQ

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON TUESDAY, 15 NOVEMBER 2016, AT 11.48 AM

Copyright in the High Court of Australia

MR M.D. HOWARD, SC:   May it please the Court, with my learned friend, MS R.R. JOSEPH, I appear for the applicant.  (instructed by Minter Ellison Lawyers)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MS R. YOUNG for the respondent.  (instructed by State Solicitor (WA))

HIS HONOUR:   Thank you, Mr Howard.

MR HOWARD:   Your Honour, can I identify the papers which the Court should have.  There is a summons filed 1 November 2016.

HIS HONOUR:   Yes, thank you.

MR HOWARD:   There is an affidavit of the applicant, John Rizeq, which was filed on 9 November 2016.

HIS HONOUR:   I have that, thank you.

MR HOWARD:   That, your Honour, replaced a faxed copy.  The affidavit was made on 27 October.

HIS HONOUR:   Yes, thank you.

MR HOWARD:   There are short submissions filed on 1 November 2016 and by the ordinary orders of the Court we filed submissions in the substantive appeal last Friday and asked the Registry by correspondence to have those before your Honour this morning.  Lastly, your Honour, there is a form of orders which was sent to the Registry last night which has been agreed between the parties in the event that the Court is minded to grant bail.

HIS HONOUR:   Yes, thank you.  I have all of those documents, Mr Howard, thank you very much.

MR HOWARD:   May it please the Court.  Your Honour, the test for the grant of bail has been set down in the Mexico v Cabal matter at paragraph 40 and the applicant is required to show exceptional circumstances.  The Court in that case went on at paragraph 41 to say that ordinarily there would be a grant of bail only if two conditions were met.  The first was that there were strong grounds for concluding that the appeal would be allowed, and secondly, that the sentence would be substantially served by the time that the appeal was heard and determined.

As we have acknowledged in our written submissions, your Honour, we do not meet that second condition in that, as we apprehended, it is likely the matter will be heard in the first quarter of next year, and even if the Court were to take a considerable period of time to resolve the appeal from there, the applicant would not have served substantially his sentence.  So we accept that we do not meet the second condition which has been set down as being required ordinarily to be satisfied.

What we seek to persuade your Honour of is that there are strong prospects of success in the appeal which coupled with the personal circumstances of the applicant satisfy the exceptional circumstances test set down in the Cabal Case. 

In order to seek to persuade your Honour of that, I take your Honour to the substantive submissions which we have filed last Friday and can I say that in the authorities, as your Honour will be aware, there are statements to the effect that ordinarily a grant of special leave may indicate that there are prospects on the appeal because of the – I think his Honour Justice Callinan referred to it as the rarity of the grant. 

What is put against us, of course, is that special leave was granted not on the basis of the strength of the case but on the novelty of the question, and I am conscious that my learned friend, the Solicitor, seeks to refer to passages in the special leave application.  It is sometimes, with respect, difficult to clearly understand concluded judgments and our submission about trying to infer a lot from exchanges in a special leave application might be more problematic, with respect.

What we say, your Honour, is that – and perhaps I can take you to page 5 of the substantive submissions starting at paragraph 28.  At paragraph 28, and we set it out in a number of subparagraphs, we set out the overview of the appellant’s argument.  What we say is that although no case has applied the principles that we rely on to a factual situation such as this, each of the principles or each of the propositions which we rely on in our argument has been established by a number of clear statements in this Court.

So the proposition that we would make to your Honour, or the contention we would make, is that if the appellant’s conviction is to be upheld by this Court, then the state of the law will have to change, and it will have to change in a number of different respects.  So, if one were to assume that there is no change to the law that we say has been established over a long time in this Court, then the conviction will be overturned as the appellant was not lawfully convicted.

The propositions, as I say, are set out in overview at paragraph 28 of the substantive submissions.  Presently, the first proposition, your Honour, is that the matter was in federal jurisdiction.  That, as your Honour will be aware from the citation at paragraph 34 to the Momcilovic Case, is something recently – relatively recently established by this Court, and so that would need to be overturned, as it were.

Secondly, there is a question then of how does the State Misuse of Drugs Act come to be applied in federal jurisdiction?  As your Honour will be aware, we contend, based on the authorities which are long established and consistently applied, that no State Act can apply of its own force in federal jurisdiction.  There is a question, of course, about how the content of a State law may apply but our proposition, as your Honour will be aware, which we have set out in paragraph 46 and following – I am sorry, paragraph 34 and following – is that the State Misuse of Drugs Act could not apply of its own force.

Now, to our knowledge, the only counter to that has been the suggestion which was floated by his Honour the Chief Justice in Momcilovic, but his Honour was very clear to make – made it plain that the matter had not been argued in Momcilovic and it was a question for another day.  We say that if one takes that obiter to one side – puts it to one side, then the authorities we cite in paragraph 34 of our substantive submissions establish that the State law cannot have direct application, as it were, to a matter in federal jurisdiction.

We identify the reason for that in the submissions starting at paragraph 36, and we refer to a number of cases in there which is that it is a matter for the Commonwealth Parliament – the Constitution and the Commonwealth Parliament – to regulate how the judicial power of the Commonwealth is to be exercised.

When one understands the cases, in our submission, that extends to – if I can step back for a moment, even if one takes section 79 as merely being a choice of law type provision, which is the way his Honour Chief Justice Dixon deals with it in some of the earlier cases to which we refer – that directs a State court exercising federal jurisdiction the substantive body of law which it must apply, and the substantive body of law which it must apply includes the State Misuse of Drugs Act. 

Your Honour, with her Honour Justice Gordon, dealt with this in the Alqudsi matter, and we have referred to that at the end of paragraph 36 of the substantive submissions and in footnote 28 we have identified the relevant paragraphs within that decision where your Honours dealt with what we say, with respect, is a well‑established proposition as to why it is that State laws do not apply of their own force in federal jurisdiction.

The next step is that if the State law does not apply of its own force, is applied via a law of the Commonwealth, in this case, in our submission, section 79 of the Judiciary Act, and that is the proposition which is at paragraph 28, point 4 in overview and which we deal with in paragraph 54 and following of the submissions, and what we do in paragraph 54, your Honour, is refer to, again, cases decided in this Court for the proposition that if a State law is made applicable via a federal law, such as section 79 of the Judiciary Act, then it operates as a federal law.

We have cited passages in paragraph 54 at footnotes 43 and 44, and the matter, in our submission, your Honour, was confirmed – if that is the right word – as recently as the decision in Mok which was decided obviously earlier this year by the Court. 

If those propositions be right, then the State law applied by a federal law operates as a federal law and in those circumstances there is a direct analogy to be drawn with the provisions of the Commonwealth Places Act and the Service and Execution of Process Act, and we refer to that in paragraph 58 of our written submissions. 

That analogy leads, in our submission, to the proposition, or to the conclusion, which we set out in paragraph 61 of the submissions, that as per decisions of this Court in Pinkstone, which dealt with the Commonwealth Places legislation and Mok, which dealt with the Service and Execution of Process Act, the mechanism of section 79 has created a new federal offence or a surrogate federal offence, as it is variously described, and that, we say, creates an offence against the law of the Commonwealth which tracks the operation of section 80 of the Constitution. This may be the least controversial of the propositions but if section 80 of the Constitution is attracted then there needed to be a unanimous verdict rather than a majority verdict.

It is for those reasons, your Honour, that we say the strength of the appeal – and I accept that what I anticipate the learned Solicitor will say is that it is a novel question and certainly it is novel insofar as it has not been applied to facts such as these in this Court previously, but each of the propositions rests, as we say, on well‑established authority in this Court, so that if the conviction is to be upheld it will require new law to be made in the appeal, and in those circumstances properly can be described as having strong prospects when the conviction to be upheld requires new law to be made.

I said, your Honour, we relied on two factors which was also in addition to what we say is the strength of the prospects, the personal circumstances of the applicant.  Your Honour will have seen those set out in

the affidavit of the applicant and it is certainly the case - the way it was dealt with, for example, by his Honour Justice Callinan in Marotta is that one looks at all of the circumstances together rather than isolating out one or another to decide whether there are the requisite exceptional circumstances. 

We have sought to set those out in the written submissions with references back to the affidavit as to why we say the personal circumstances of the applicant with the strength of the appeal do constitute or do establish exceptional circumstances in this case.  Unless I can assist your Honour at this particular point in time, they are the submissions for the applicant.

HIS HONOUR:   Thank you very much, Mr Howard.

MR HOWARD:   May it please the Court.

HIS HONOUR:   Mr Quinlan.

MR QUINLAN:   May it please, your Honour.  In relation to the papers that your Honour should have before you I trust, there is an outline of submissions that was filed on 10 November from the respondent.

HIS HONOUR:   Yes, thank you.

MR QUINLAN:   There is an affidavit of Lindsay Makinson Fox, the prosecutor with conduct of the file setting out certain formal matters, also sworn on 9 November.  Does your Honour have that?

HIS HONOUR:   I do, thank you.

MR QUINLAN:   In addition we had asked that because we are at something of a disadvantage in relation to the issues likely to arise in the appeal, not having yet filed our submissions in the substantive appeal, ask that your Honour have available the application book in relation to the special leave application in P39/2015.  Does your Honour have that?

HIS HONOUR:   I have that also, thank you.

MR QUINLAN:   If your Honour pleases.  Your Honour, of course, as is set out in our submissions, the respondent opposes bail as this not being an exceptional case.  The sentence for the offences for which the appellant was convicted have some just two months shy of seven years left to serve.  If he is granted parole, in the event that he was granted parole, he would still have two months shy of five years left to serve.

That not only is a significant matter in terms of the fact that it clearly demonstrates that the appellant does not satisfy one of the two conditions identified by the Full Court in United Mexican States v Cabal as being ordinarily required, but it also is an indication of – and it is important, in our submission, that the length of that sentence be taken into account because obviously there will be degrees of substantial service that may be taken into account for the purposes of that requirement in Cabal and, in our submission, it is the case that the very substantial part is still yet to be served.

In relation to the offences, they are of course serious drug offences of possessing methamphetamine and ecstasy with intent to sell or supply, in relation to which – and this goes to the important part of the exceptional circumstances requirement identified in Cabal that the grant of bail on appeal involves a serious interference with the administration of criminal justice – the Court of Appeal in this case concluded in relation to a ground of appeal that the conviction was unsafe and satisfactory that, having considered all of the material including the covert communications, that they had no doubt about the correctness of the verdict, and significantly an appeal ground sought to reagitate that issue was a matter in relation to which special leave was not granted, so that the only ground of appeal is the constitutional one.

That, in our respectful submission, is the starting point and the context within which to consider this question of exceptional circumstances.  The fact that, in our respectful submission, it is clear that the second of the two conditions identified by the Court in Cabal is not satisfied and the degree to which it is not satisfied means that in order to demonstrate exceptional circumstances justifying the grant of bail, the other matters sought to be relied upon would need to be exceptional indeed – perhaps in the same sense as identified by the Court concerning the grant of bail pending a special leave application where the Court identifies in that case, because there is yet to be a grant of special leave, the prospects of success would need to be not simply strong, as is identified in the normal conditions, but very strong.

In our respectful submission, in circumstances in which that second condition as to the term of the custodial sentence is not satisfied, it is necessary for the other matters, including the strengths of the prospect of the success, to heavily outweigh the failure to satisfy that first condition.  In our submission, it cannot be said that the prospects of success in this case are very strong, or strong, in my respectful submission. 

My learned friend accepts that it is a novel proposition in the sense that it has never been decided before or thought before – and I will say something about the thought before in a moment – it has never been decided before that by dint of being an interstate resident at the time of being indicted, a person liable to conviction for an offence against a law of the State, by dint of the invocation of jurisdiction in relation to an interstate resident, the State law is converted into an offence against a law of the Commonwealth applying, in effect, retrospectively to the circumstances existing at the time of the commission of the offence.

That is the outcome for which the appellants contend, and as your Honour would appreciate, in our respectful submission, it is an entirely different situation to a Commonwealth provision which in terms seeks to create an offence applicable at the time of the commission of the offence by a law of the Commonwealth which incorporates by reference its content to come from State laws, for example, the Commonwealth Places example or the SEPA example. 

In those cases, the Commonwealth offence is always acting and existing because it has been made as a substantive offence by reference to a Commonwealth head of power or either service and execution of process or Commonwealth Places, whereas in this case, what is suggested is that an offence which was not operative as a Commonwealth offence at the time of the commission of the offence was somehow converted into an offence against the law of the Commonwealth within the meaning of section 80 of the Constitution such that the provisions of that term applied.

Now, that is not only novel but it takes and stretches, with respect, some of the propositions that are relied upon by our learned friends as being established in this Court, that is, the proposition that is put that State laws cannot apply in federal jurisdiction, which is said to be an established proposition, relies upon passages from judgments which are in a different context and which in each circumstance are speaking about particular kinds of State laws and examples of that can be seen in the application book and in our submissions in response to the special leave application, if your Honour has that book, at page 171 of the book which is part of our submissions in response. 

HIS HONOUR:   Yes.

MR QUINLAN:   Your Honour will see one of the decisions that is expressly relied upon by our learned friends is the decision of his Honour Justice Kitto in Pedersen v Young.  We have referred to that in paragraph 26 because what was said in that case by his Honour Justice Kitto was that it is obvious that the Queensland enactment could not of its own force limit the time within which an action may be commenced in this Court – it being a limitation period – but it does not stand for the proposition that all State laws relevant to the rights of parties could not so apply, as is evidenced by his Honour recognising in the paragraph that we have immediately below extracted, that:

Queensland laws must be treated as binding in this Court, as federal law if not by their own force -

Then – over the page – Solomons v District Court of New South Wales, another authority relied upon by our friends, the passage is:

State laws upon which s79 operates do not thereby apply of their own force in the exercise of federal jurisdiction.

As his Honour the Chief Justice pointed out in the special leave application, that passage begs the question which laws does it operate upon?  Our submissions are that the laws it operates upon are the laws in relation to jurisdiction – that is, the authority to adjudicate.  That is supported, in our respectful submission, by the other authorities which we have extracted passages from.  For example, if your Honour goes to page 169 of the special leave application book, paragraph 17, where the plurality’s confirmation in Fencott v Muller that:

“The existence of federal jurisdiction depends upon the grant of the authority to adjudicate rather than upon the law to be applied or the subject of adjudication.”–

Then in the next paragraph:

“[T]he right to invoke the jurisdiction is essentially an auxiliary or facultative one in the sense that the jurisdiction . . . confers upon the Court to hear and determine the designated matters in accordance with the independently existing substantive law.”

So there are, if one takes particular passages, depending upon their context, can be an attempt to extrapolate the outcome which is suggested by our learned friends, but it is not the case, in our respectful submission, that it is necessary for any new law to be made in order for this appeal to be dismissed. Rather, we say that what is necessary is that the appellants need to make good the proposition – the new proposition that section 79 is in fact an offence‑creating provision that creates the offences in the way in which is suggested.

Now, we have referred to passages of the special leave application and it is not that we seek to draw as with some looking glass great meaning from exchanges, save to recognise that the special leave application makes clear that at the outset it was accepted that this was, being a constitutional point, a point of general importance and one in relation to which there was not a clear expression by the court one way or the other.

Now, that does not place it in the strong category.  What it does, in our respectful submission, is identify that.  As with all cases which invoke questions of constitutional limitation, they will be matters of general importance and in that context, your Honour, in Cabal itself the Full Court consisting of Chief Justice Gleeson, Justices McHugh and Gummow at page 174 in paragraph 16, noted the fact in that case concerning whether or not some implication could be drawn as to the strength of the case from it being referred to the Full Court, their Honours said in the middle of that paragraph:

A constitutional challenge to legislation is always a matter of public importance.

In our respectful submission, that sentence would apply with equal force to the constitutional issues raised in this case.  Then their Honours go on:

If it has even reasonable prospects of success, special leave to appeal will be granted – almost as of course.

What that suggests, and it is borne out in this case, in our respectful submission, is that the constitutional significance of the point will mean that the threshold for arguability or the strength of the case will be lower in order to justify the grant of special leave.  Those are the submissions we would make in relation to the strength of the case. 

The other points that are raised in relation to the appellant’s personal circumstances would, in our respectful submission, be matters which would apply, in essence, to any matter – criminal matter in relation to which there was a bail application and, for that reason alone, could not be described as exceptional or out of the ordinary, save for the point raised by our learned friends that it raises an important constitutional principle.

But, as we have said, that has two effects.  One is it demonstrates that it cannot be assumed that the case will necessarily be strong from the grant of leave and also – and this draws on a point made by his Honour Justice Kirby in the Pinkstone applications – that it is not an appeal which amounts to an assertion of innocence and, indeed, the application for special leave in relation to the unsafe and unsatisfactory aspect of the matter was refused. 

In relation to the time until the hearing, in our submission, as your Honour will have seen, the communications that we have had from the Registry is that this appeal is likely to be heard in the first sittings of 2017,

which would be the sittings commencing I think on 30 January, and it is clear that with our submissions being due at the end of this month or early next month that the case will be ready to be heard with the expedition that no doubt it will be treated.  Those are our submission, your Honour.

HIS HONOUR:   Mr Solicitor, just one thing, if I may.

MR QUINLAN:   Yes.

HIS HONOUR:   Presumably, if the appeal were successful, the convictions would be quashed and it would be ordered that there be a new trial had.  Should one proceed upon the assumption that he would likely be put up again for trial?

MR QUINLAN:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Howard, any reply?

MR HOWARD:   Two short matters, your Honour.  In relation to the point that your Honour just ventilated with the learned Solicitor, we note that at the first trial that the applicant had been granted bail in the lead up to that trial and indeed throughout the trial itself and there is no reason, we would say, to suspect that even if the appellant were to be put up again that he would not be granted bail again. 

Secondly, what my learned friend sought to do was to confine section 79 of the Judiciary Act to particular types of State law which he said went to the authority to adjudicate. What I say in response to draw the Court’s attention to paragraph 50 of our substantive submissions in this Court, which is that we say again it is well established that section 79 is not so limited to merely procedural types of law. It is applicable to both procedural and substantive and the authority to adjudicate to which my friend refers must include, in our submission, a direction by the Commonwealth Parliament to the State court as to which law it is to apply.

It is that mechanism, without wishing to repeat the submissions made before, but it is that mechanism by which the State law comes to operate in federal jurisdiction, and then one goes to the authorities I have already referred the Court to to the effect that if a State law operates via a Commonwealth law, then it is operating as a Commonwealth law on the matters to which it applies.  It is that mechanism which I identified in the submissions earlier and which we identify in the substantive submissions on which we rely for the creation of the new federal offence or the surrogate federal offence.  May it please the Court.

HIS HONOUR:   Yes, thank you.

Following a trial in the District Court of Western Australia, the appellant, John Rizeq, was convicted by a majority verdict of one count of possession of a prohibited drug (MDMA) with intent to sell or supply and one count of possession of a prohibited drug (methylamphetamine) with intent to sell or supply, and sentenced therefore to a total term of 10 years’ imprisonment, effective from 5 September 2013, with eligibility for parole not until 4 September 2021. 

On 24 August 2015, his appeal against conviction to the Court of Appeal of the Supreme Court of Western Australia was dismissed. On 7 October 2016, he was granted special leave to appeal to this Court on the sole ground that “the Court of Appeal erred in holding that s 114(2) of the Criminal Procedure Act 2004 (WA) applied and allowed the appellant to be convicted by a majority verdict of offences against the Misuse of Drugs Act 1981 (WA) when the District Court of Western Australia was exercising federal” – I interpolate, diversity – “jurisdiction. Whereas the Court of Appeal should have held that s 114(2) of the Criminal Procedure Act had no application to the appellant’s trial as s 80 of the Constitution provides otherwise and required the appellant to be convicted by unanimous verdict”.

By summons dated 1 November 2016, the appellant now seeks bail pending the hearing and determination of his appeal.  His grounds of application are:

1.That there are strong grounds for concluding that his appeal will succeed;

2.That he has already served three years and approximately one month of his sentence;

3.That he was granted bail pending his trial, which he answered, and there is no reason to suppose that he would abscond or offend if granted bail pending appeal;

4.That his incarceration is exacerbated by the fact that most of his immediate family reside in New South Wales, thus limiting their ability to visit him in gaol, his parents are elderly, his father suffers from multiple health problems, and the appellant has three young children aged between three and eight years of age.

The Crown opposes the grant of bail. It contends that it is by no means apparent that the appeal is likely to succeed. In the Crown’s submission, it can be seen from the transcript of the special leave hearing that special leave was granted pre‑eminently because of what was considered to be the general importance of the issue of whether s 80 of the Constitution applies to a criminal trial in a State court exercising federal diversity jurisdiction in relation to State offences; and that, so far from there being strong prospects of the appellant succeeding in the appeal, there are indications in the authorities including Momcilovic v The Queen (2011) 245 CLR 1 which render it likely that the appeal will fail.

The Crown further contends that it is to be assumed that the appeal will be heard and determined well before the appellant has served even the non‑parole period of his sentence and that, although imprisonment has an adverse impact on the appellant’s family, that effect falls well short of the exceptional circumstances required for the grant of bail.

The grant of bail is of course discretionary but bail pending appeal to this Court will not ordinarily be granted in the absence of exceptional circumstances and usually, therefore, only if the applicant for bail demonstrates both that there are strong grounds for concluding that the appeal will be allowed and that the sentence, or at least the non‑parole period of the sentence, will have been substantially served before the appeal is heard and determined:  see Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 519 and United Mexican States v Cabal (2001) 209 CLR 165 at 181 ‑ 182 in [39] – [43].

As at present advised, I am not persuaded that there are necessarily strong grounds for concluding that the appeal will be allowed.  Novel though the issue may be, there is not a little in this Court’s decision in Momcilovic that suggests that the appellant’s argument might be rejected.  Of course that does not mean that the appeal may not succeed.  At this stage I have not heard full argument on the point, albeit that I have had the benefit of considerable argument with reference to the submissions which it is proposed will be submitted to the Full Court on the appeal.  But without the benefit of full argument it is impossible to reach a concluded view about it one way or the other.

That means that, as matters stand, my necessarily preliminary and tentative perception is one that falls short of a level of satisfaction that it is likely that a majority of the Court will be persuaded that the appellant’s point is compelling. 

Further, as the Crown anticipated, the appeal is likely to be heard and determined well before the appellant has substantially completed even the non‑parole period of his sentence.  It is expected that the matter will be listed for hearing early in the New Year and thus, other things being equal, should have been determined by about the middle of next year.

I accept that if the appellant were granted bail he would be unlikely to abscond.  The relatively minor nature of his criminal antecedents, his family and business circumstances, and his observance of bail conditions pending trial, suggests that he would answer bail if it were granted.  For that reason it is, in one sense, regrettable that if the appeal succeeds the appellant will have been caused to remain in prison for the time that it takes to reach that result.  But, as against that, the appellant has been convicted of serious drug offences by a majority verdict of 11 jurors, and the Court of Appeal has unanimously affirmed the convictions after rejecting all of the appellant’s substantive grounds of appeal, as well as the point on which special leave has been granted.

Consequently, it may be assumed that if the appeal to this Court succeeds and the convictions are quashed, the appellant will be put up again for trial on the same charges and, in that event, it may be supposed, it is not unlikely that he might be reconvicted by a unanimous verdict of a jury of 12.

The appellant’s family circumstances are evidently very difficult and they warrant one’s sympathy.  But since I am not satisfied at this stage that the appeal is likely to succeed, or even that it may be properly said that there are strong prospects of success, the ordinary rules as to hardship must apply.  Despite the difficulties outlined in the appellant’s affidavit in support of the application, I am not persuaded that his family difficulties are sufficiently exceptional to warrant the grant of bail, either standing alone or in conjunction with what are said to be the prospects of success of the appeal.

It was contended on behalf of the appellant that because he was granted bail pending trial, and taking into account the other considerations in favour of bail already mentioned, the circumstances here are sufficiently akin to those in Marotta v The Queen (1999) 73 ALJR 265 to warrant the grant of bail. I reject that argument. Marotta turned on its own facts, not the least of which was that it was apparent there that if the appeal succeeded the appellants had been wrongly convicted and should be discharged.  It was in those circumstances that his Honour Justice Callinan remarked that there is “no public benefit or interest in the incarceration of people who might turn out to have been wrongly convicted according to law”. 

By contrast, here, assuming the appeal were successful, as I have said it is to be assumed that the appellant will be put up again for trial and, if so, it is not improbable that he would then be reconvicted by a unanimous verdict of a jury of 12.

In the result the application for bail is dismissed.

Are there any further orders sought, gentlemen?

MR QUINLAN:   No, your Honour, no order for costs is sought.

HIS HONOUR:   Thank you.  Adjourn sine die.

AT 12.39 PM THE MATTER WAS ADJOURNED