Robinson v The Queen

[1991] HCATrans 172

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl9 of 1991

B e t w e e n -

ROBERT RAYMOND LLOYD ROBINSON

Applicant

and

THE QUEEN

Respondent

Application for Bail

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 28 JUNE 1991, AT 9.33 AM

Copyright in the High Court of Australia

Robinson(2) 1 28/6/91

MR K. COPLEY, QC:  May it please Your Honour, I appear for

the applicant, with my learned friend,

MR K. HARDCASTLE. (instructed by R.F.G. Finlayson

& Associates)

MR P. RUTLEDGE:  May it please Your Honour, I appear for the

respondent, with my learned friend, MR D.C. BOYLE.

(instructed by the Director of Prosecutions)

HER HONOUR:  Yes, Mr Copley.

MR COPLEY: If Your Honour pleases, I read the summons filed

on 27 June 1991 and the affidavit of the applicant

filed on the same date.

HER HONOUR:  Yes. Now, you make take it that both documents

have been read, Mr Copley.

MR COPLEY:  Thank you, Your Honour. If Your Honour pleases,

overnight a further matter has occurred which is
considered to be relevant to advise Your Honour and
also to put before Your Honour as a matter of

special circumstances in this case. What has

occurred is not the subject of affidavit material

before Your Honour. An attempt is being made to

have such material prepared but because the

information only came to us before 9 o'clock this

morning we have not yet had time to get that done.

HER HONOUR: Well, is there any dispute about this material?

MR COPLEY:  No, there will not be. I have spoken to our

learned friends about the matter and, at the

moment, is content to place it before Your Honour

by way of submission.

HER HONOUR:  Yes.

MR COPLEY:  Thank you, Your Honour. Might I just then

outline this particular matter to Your Honour.	Does Your Honour have a copy of the Corrective	Services Act of Queensland? It is Act No 89
of 1988. We have a copy which we would ask to hand
up to Your Honour.

HER HONOUR:  Thank you.

MR COPLEY: It is the Act of 1988. There has been an

amendment to the Act but the amendment is not

material for present purposes, if Your Honour

pleases.

Mr Robinson has made application pursuant to

section 61 of the Corrective Services Act to be

granted leave of absence:

to engage in employment -

Robinson 2 24/6/91

this is pursuant to section 6l(l)(b).

As he was sentenced to a term of imprisonment

for six years, the Queensland Community

Corrections Board must make the decision. However,

the Brisbane Community Corrections Board is the first board to which the application is made by

Mr Robinson, and that was done and considered last

evening, and his application for release to work

has been approved by them and to be recommended to

the Queensland Board, and the Queensland Board will

meet on 19 July 1991 and it is expected that in

accordance with past decisions that the Queensland

Board will act upon the recommendation made by the

Brisbane Board.

That release would then occur on or about

20 or 21 July 1991. He would, if released to work,

be required to reside in Brisbane in the area

around Spring Hill, or there is another home at

Dutton Park, and that is likely to continue for a

period of between five to nine month's duration and

after that he might be allowed, or may well be

allowed, home detention which would, effectively,

let him go back to Charleville if that is where his

home would be, and it is on the material,

Your Honour. Your Honour, whilst he is on leave of

absence, under section 61, he is still considered

to be a serving prisoner.

That was a matter which, we considered, would

properly be placed before Your Honour to consider

along with the other material.

If Your Honour. pleases, the submissions which

we wish to place before Your Honour in this

application for bail brought in the inherent

jurisdiction of the Court are that Mr Robinson was

sentenced to a period of imprisonment for nine

years originally in April of 1989. His appeal

against sentence was allowed. His appeal against

conviction was refused and his sentence was reduced
to a period of six years.	It is agreed that he

would be eligible for release on parole after

serving one-half of that sentence and that release

would be in April 1992.

Mr Robinson brought an application for special

leave to appeal from the decision of the Court of

Criminal Appeal and his application for special leave was granted by the High Court on

24 June 1991 by Their Honours Justices Dawson,

Toohey and McHugh. A notice of appeal has been

heard and has been filed or lodged.

Your Honour, the position in relation to this

application is that he, in distinction to many

Robinson 3 24/6/91

other applicants for bail, has had his application

for special leave granted.

HER HONOUR:  Yes, this being simply the result of new

procedures that have been adopted by the Court.

MR COPLEY: That is so, and accordingly, when we look to the

various cases, there are dicta which assist, in our

submission, the applicant in his application.

May we refer Your Honour to Chamberlain v Reg

(No 1), (1983) 153 CLR 514. This was an

application pending the grant of special

leave. Special leave had not been granted. It was

before His Honour Justice Brennan and he dealt with

this application for bail and he noted the point,

at page 518 of the report about point 3 of the way

down the page, that there was at the time - there

is now, similarly - nothing in the rules as a

source of power to grant bail pending an

application for -

leave to appeal, and the subrule there relied upon
did not confer. That subrule, now, has been

repealed, of course.

His Honour, after referring to the

jurisdictional point at page 518 and Tait's case

for the inherent power upon which we rely, referred to Re Cooper's Application for Bail and a number of other cases where various words are used,

including:

"very exceptional", "exceptional",

"exceptional or unusual", or "special" -

must be the circumstances shown to grant an

application for bail pending the determination of

an appeal after conviction. In the cases in the

High Court, of course, one - we refer to, Cooper's

Application for Bail - - -

HER HONOUR:  But are the considerations different for bail

pending appeal in general terms?

MR COPLEY:  Your Honour, in general terms, no, but there is

this, that His Honour did refer to a Queensland

decision of Byrne at page 519. It is reported in

1937 QWN 30.	May I hand up a copy of that to
Your Honour.

HER HONOUR:  Thank you.

Robinson 4 24/6/91

MR COPLEY: Before I take you particularly to a passage in

Byrne's case, in Chamberlain, Justice Brennan referred, at page 519 about point 4:

However the test may be formulated, in

practice the grant of bail pending an

application for special leave to appeal to

this Court will be more restricted than the

grant of bail by courts exercising a general

statutory power where there is an actual

appeal pending.

Now, he drew the distinction between special leave

to appeal and where the appeal is actually pending

and also drew attention to a distinction, perhaps,

between the High Court and the intermediate, the

courts of criminal appeals of the States, and he

went on to state reasons for that. We do seek to

draw comfort from the fact that he draws a

distinction between before the special leave is

granted - or leave is granted, we would say, and

when you refer to the State courts, because it is

not special leave, and after that time.

He did refer to Byrne's case and, in Byrne's

case, Chief Justice Blair, in the Supreme Court of

Queensland, in an application for bail made by an

applicant before his appeal was brought on, and it

was an application to the Court of Criminal Appeal

under section 671G(2) of the Criminal Code for

bail, and it was for an application for leave to

appeal against conviction. Chief Justice Blair

referred to the fact that the court was of:

opinion that no exceptional or unusual
circumstances have been shown ..... warranting

the granting of bail.

A little further down - I will skip over passages

not relevant - His Honour said:

The applicant is in a different position from

a man who is awaiting trial, as a person in
that position can obtain bail. That is a well

recognized principle, a principle which seems
to be well accepted by the authorities that we

have heard. They were cases totally different
from that of a man who has been sentenced.

The Court of Criminal Appeal in those cases

only granted bail when it granted an

application for leave to appeal. The

applicant may proceed to the Court of Criminal

Appeal when he is granted leave to appeal.

The point that we draw attention to is that after

the leave has been granted and the man is

proceeding to appeal, bail then might be

Robinson 5 24/6/91

differently considered. This was a case that

Justice Brennan had before him which he

specifically referred to and it is a matter where

there is a different procedure now obtaining, but

that is a factor. We put it no higher than that.

HER HONOUR: That, though, was a statutory jurisdiction, was

it, Mr Copley?

MR COPLEY: Yes, it was. There is no statuto-ry

jurisdiction.

HER HONOUR:  Yes. In the inherent jurisdiction, the

consideration, one would have thought, would still

be largely the same, and that is that bail is

necessary to serve the ends of justice.

MR COPLEY:  Yes. And, we accordingly, have to show special

or particular circumstances, and that is a matter

which we must rely upon the affidavit material to

which I now wish to refer.

HER HONOUR:	Yes, but they are not circumstances that are exceptional or peculiar, are they, to - well, I am
sorry, I am not talking generally.  The
circumstances which must be exceptional or peculiar
are circumstances which actually bear on the
interests of justice?
MR COPLEY:	Yes, one of which has been if the period of imprisonment will have been served, or
substantially served, before the application is
heard - not judgment given - heard, so that you
would render nugatory or futile the appeal process,
but that may be placing it a little too high and a
little too much against us, but that has been acted
upon by this Court on a number of occasions. One
such case was a decision of Your Honour in Coulter
v Reg, (1987) 61 ALJR 537. May I hand up a copy of
that to Your Honour.
HER HONOUR:	Thank you.

MR COPLEY: This was an application for bail pending the

hearing of the application for special leave. The

relevant paragraph in Your Honour's judgement would

appear, in our submission, to be at page 538,

column 1, about letters F to G.	Your Honour said
in the passage commencing:

It is not disputed -

as to jurisdiction:

On that consideration, the time to which

regard should be had is the time at which the

application will be heard and not the time at

Robinson 6 24/6/91

which it may be expected to result in the

giving of judgment.

In the present case I am not persuaded

that a refusal of bail pending the special

leave application would render the application

substantially futile. On any view, there will

be a period of sentence then remaining to be

served. The case is thus different from ~hat

of Re Cooper's Application for Bail, where the

sentence in question was a sentence of two

months which might well have expired in its

entirety before the application was heard.

In this case we understand that the appeal may be heard at the end of August of this year and,

accordingly, the applicant's period of imprisonment

before he would be eligible for parole - one-half

of his sentence - would be April of next year and

there would be a substantial number of

months, eight months or so, remaining to be served.

However, Your Honour, there is another case to

which we wish to draw Your Honour's attention.	It
was not drawn to Your Honour's attention on the
face of the report in Coulter's case and that is
the matter of Storey v Lane, (1981) 147 CLR 549. May we hand up a copy of this to Your Honour.

HER HONOUR:	Thank you.
MR COPLEY:	Storey v Lane was the consideration of the

validity of section 61 of the Bankruptcy Act.	The
question arose because the applicant had been

sentenced - and I refer Your Honour to the judgment

of Chief Justice Gibbs at pages 552 to 553 of the

report where the material facts are set out, and if

I might briefly summarize the position for

Your Honour:  he had been sentenced to periods of

imprisonment for breach of provisions of the

Queensland Industrial Conciliation and Arbitration

Act, the effective period of imprisonment being
12 months.	He was taken into custody on
1 January 1981.	He sought - as he was a

bankrupt - to be released from prison pursuant to
the provisions of section 60 of the Bankruptcy

Act - which is set out at the bottom of

page 553 - because the amounts of money, the

subject of the order of the court, were debts that

were provable in the bankruptcy, and

notwithstanding that they were criminal proceedings

that were the cause of his going to gaol.

The question of the validity of section 60 was

raised by Justice Connolly in the Supreme Court in

Queensland and the matter was removed into the

High Court. The period of imprisonment of

Robinson 24/6/91

12 months - by the time it came to the High Court

on 13 February 1981, he had already served about

six weeks of the period and he was admitted to bail

in the inherent jurisdiction of the Court because,
by the time the appeal was likely to be heard in

the May-June period, he would have served a

substantial part, but there still would have been

an unexpired portion - not as much as you have

here. That case does not appear to have been

referred to in any of the cases to which we have

had reference. It is of assistance, in our

submission, Your Honour.

Further, in Coulter's case, there did not appear to be any exceptional or special

circumstances advanced other than that which

appeared on the face of the record. Special leave

had not been granted. Storey v Lane was not drawn

to Your Honour's attention.

Your Honour, as to exceptional circumstances

otherwise, the affidavit material refers to

personal or exceptional circumstances. I

acknowledge the force of what Your Honour has said

in relation to what is embraced by the concept but,

in our submission, it cannot ignore the

circumstances of the applicant himself and we would

so submit.

There is the question of a financial matter

for his - - -

HER HONOUR:	You do not go so far as to submit that the grant of special leave to appeal is, itself, an
exceptional circumstance, do you?
MR COPLEY:	We do submit that that, having been granted -

special leave having been granted - is a factor to

be taken into account. We do not go to discuss or

to seek to argue the merits of the grounds of

appeal. That is not a matter which, we submit, we

can properly do here. In other words, it could be

taken that we are asking for a provisional ruling,

as it were, as to the grounds. We have put that

completely on one side, but we do submit that

special leave, having been granted, is a factor to

be taken into account.

We further submit that the personal

circumstances of the applicant are to be considered

as a further factor and those circumstances might I

summarize for Your Honour, and these appear from

the affidavit material. He is a man with five

children. Their ages range from at least - a

daughter who is about school leaving age, referred

to in paragraph 8 of the affidavit, down to a young

boy at least seven years of age - and I do not have

Robinson 8 24/6/91

the ages of all the other children. The home was

destroyed by the floods in Charleville in April

1990.       The wife and the family still reside there.

They have been living in very difficult financial

circumstances. The applicant does have well-paid

employment available to him, I am instructed
immediately, and that employment is available to

him is a matter which is taken into account by the Community Corrections Board when they consider his

application for release as was done last evening.

He claims and, we submit, he is able to provide for

the needs of his family, including housing, and
they are unable to financially afford the housing

which he wishes to have for them. Extreme financial hardship is being suffered

by the family.	He also raises and, we submit, in
respect of these, the health of his family.	He has
a son, who in the material was aged seven.	He may

be eight years now - that is Luke - who is having

psychiatric problems related to the floods in

Charleville in his father's absence. Your Honour

will find that in paragraph 7 of the affidavit, and

exhibits A and B, being a report from the

psychiatrist and a report from the Charleville

Hospital's Board social worker, Miss Moffatt.

His daughter, who is apparently about school

leaving age, has de facto left school, that is, she

has ceased attending school. This is referred to

in paragraph 8. The applicant wishes to use his

parental influence to get her to go back to school

to finish - employment. She does have enough

difficulties at the start of adult life without

curtailing her employment.

There is referred to in paragraph 9 the number

of debts that have occurred in the family in recent

times - approximately half a dozen. These have

particular dramatic effect upon him and his wife.

His mother also has suffered a stroke.	She has
right-sided paralysis. He says there is no other

person to assist her and she would have to return

to Charleville. This is referred to in

paragraph 10 of his affidavit.

There is the further circumstance that I

opened before Your Honour as to the applicant's

leave of absence likely to be granted within a

month. Now, if he is granted bail, of course, the

question of his not remaining or being still a

person under sentence, is a matter which would, as

it were, suspend his sentence but that is a matter

that he has to face, and does face. He must

recognize that if his appeal is unsuccessful, his

return to imprisonment is a matter that he will

then have to face. How the Community Corrections

Robinson 9 24/6/91

Board will deal with it is a matter, in our

submission, for them, but it is a circumstance that
Your Honour could properly take into account.

We do submit, in respect of Chamberlain's case, that the penultimate paragraph of

Justice Brennan's judgment is not definitive, that

is, it is not the only consideration or test to be

applied. You see that from the face of

His Honour's words, where he says:

But there is another factor -

and it is a factor:

which militates against the granting of bail -

but it does not preclude or determine the grant of

bail, namely, the status of a person as a convicted

person. One might see, and judge why that

paragraph appears in His Honour's judgment, in it

may be directed to the submissions made by counsel

at page 515 of the report that:

The criminal process does not end on

conviction.

As it were, the verdict of the jury is but a step

in the process. We submit that that consideration

is a factor but not to be taken further, in other

words, not to be given undue weight.

Your Honour, in summary, may we submit we rely

upon the fact of special leaves having been

granted, the relatively short period of

imprisonment remaining to be served, and the period

which will run until the appeal is heard, the

personal circumstances of the applicant, and
particularly, the imminent release pursuant to

section 61 of the - - -

HER HONOURt Do you rely on the imminent release, or the

possibility of imminent release, as a special

circumstance?

MR COPLEY:  Yes, if Your Honour pleases, we do.

HER HONOUR:  How do you do that? I mean, on one view it

might tend against you.

MR COPLEY:  We recognize that. Our submission, on that

point is this: where a person has been sentenced

to imprisonment and is at the commencement or the

beginning of his period of imprisonment,

imprisonment being in part a punishment or a need

to protect the community, and that the person

should remain in custody as part of the vindication

Robinson 10 24/6/91

of the criminal law, and the punishment for the

commission of the offence, this man's position Ls

different in that he is at the end, not at the

beginning, of the sentence.

HER HONOUR:  Even if released to parole, he would, in a

sense, still be subject to a sentence, would he

not?

MR COPLEY:  He would still be subjected to a sentence, yes.

We are addressing the particular feature of danger to the community.

HER HONOUR:  Yes, I see, thank you. But, you do not rely on

that as a special circumstance invoking the

inherent jurisdiction, do you?

MR COPLEY:  No, we just submit that as a further factor that

Your Honour would take into account.	I am sorry, I
should have made that clear.

HER HONOUR:	Thank you.
MR COPLEY:	Your Honour, so far as the personal

circumstances of the applicant are concerned, they

are matters which may be considered to have, in

this case, a particular significance, particular,

in the sense, that if the special circumstances are

not to take into account the man's family and the

effect of the further imprisonment upon them, we

put completely to one side, as it were, the human

aspect of it.

HER HONOUR:  They may well be matters to be taken into

account if the jurisdiction is invoked, but I am

just wondering what it is that you say engages the

inherent jurisdiction in this case.

MR COPLEY:  Your Honour, perhaps the highest that we can

place that is the period - that a substantial part

of the period of imprisonment that he would serve

before he were eligible for parole would expire

before the appeal is heard. We acknowledge there

still will be a substantial part remaining, but if

Storey v Lane is considered, the period of

imprisonment which would remain to be served - this

factor may come down to merely a matter of months
rather than years and, in this case, it is a matter

of months.

HER HONOUR:	Yes, I understand that.
MR COPLEY:	Your Honour, those are our submissions.

HER HONOUR:	Thank you.	Yes, Mr Rutledge.
Robinson	11	24/6/91

MR RUTLEDGE:  Bail is opposed. Our basic submission is thac

no exceptional circumstances have been shown.

Reliance to engage the jurisdiction of the Court

seems to be based upon the proposition that special
leave has been granted. It is submitted, in that

case, that although special leave to appeal on one

ground has been granted, the merits of that ground

have not yet been determined and it could not be

said that the appeal is bound to succeed and that

the fact that special leave has been granted is not
a significant factor in deciding whether there are

exceptional circumstances.

The other major factor that appears to be

relied upon is the length of the term of

imprisonment. The realities of the situation are

that the applicant is serving a six-year term of

imprisonment of which he has served approximately

two years and two months, maybe a little

more, after sentence on 10 April 1989. He may be

eligible for release on parole on 10 April 1992,

but that is yet to be determined. So there is, in

fact, a substantial period of the sentence which he

is liable to serve.

The other important factor is that there is no

reason to believe that there will be undue delay in

the hearing of this appeal. I understand, from

what has been submitted this morning, that the

delay envisaged is in the order of two months if

the appeal is heard in August.

The other factors which go to the applicant's

personal and family circumstances and the
possibility that he·might be given work release, in

our submission, are not factors that go to the

issue as to whether exceptional circumstances do,

in fact, exist.

The position, in essence, in our submission,

is that the fact that special leave has been

granted does not affect the basic principle that

applies to bail pending appeal that exceptional

circumstances must be shown, and exceptional

circumstances, in our submission, simply have not
been shown to exist. That is the crux of our

submission.

HER HONOUR:  Thank you, Mr Rutledge. Anything in reply,

Mr Copley?

MR COPLEY:  We have nothing in reply, thank you,

Your Honour.

HER HONOUR:  Thank you. Gentlemen, I will not reserve my

decision on this matter. I will indicate now that

Robinson 12 24/6/91

I would not grant the application and I will give

my reasons briefly.

This is an application for bail pending

appeal, special leave to appeal to this Court

having been granted on Monday last, 24 June 1991.

It is likely that the appeal will be heard at the

end of August this year.

The applicant is presently serving a sentence

of six years which will expire in April 1994,

although it is possible, perhaps likely, that he

will be released to parole as early as 1992. It

also seems likely that he will be granted leave of

absence to undertake employment towards the end of

July, that is, within the following month.

The applicant and his family have been subject to personal hardship since, and, to some extent,

because of his imprisonment. The material

presented on behalf of the applicant indicates that

he is a person who would almost certainly answer

any bail which was granted to him.

The jurisdiction of this Court to grant bail

is non-statutory. It is part of the inherent

jurisdiction of this Court which exists to serve

the ends of justice and to perfect the

administration of justice. It was said in

Chamberlain v Reg (No 1), (1983) 153 CLR 514

at page 515 that:

"in practice the grant of bail pending an

application for special leave to appeal to

this Court will be more restricted than the

grant of bail by courts exercising a general

statutory power where there is an actual

appeal pending."

Since the introduction of new procedures with

respect to the grant of special leave to appeal in

criminal cases, it may be that the considerations

to be taken into account by this Court are not

quite as restricted as they were in the case of

applications pending the grant of special leave to

appeal. However, I do not understand it to have

been contended by, or on behalf of the applicant,

that the grant of special leave in itself is a

special circumstance and, if it had been so

contended, it would not, in my view, be such a
circumstance.

Because the jurisdiction which is invoked is that which is inherent and which exists to serve

the ends of justice and to perfect the
administration of justice, the circumstances which

might properly be described as exceptional and

Robinson 13 24/6/91

sufficiently exceptional as to justify the grant of

bail pending appeal must, in my view, relate to the
proceedings to be conducted and their relationship

with the sentence being served.

Indeed, it was on this consideration that the

application was substantially based, it being put that a substantial part of the sentence will have

been served, at the time the matter comes on for hearing and that, in general terms, it is likely

that but a small part of the custodial sentence

would then remain to be served before the applicant

was released to parole.

So much may be conceded but I do not think

that in itself constitutes exceptional

circumstances such as to invoke the inherent

jurisdiction of this Court.	As earlier indicated,
the matter is likely to be heard in August.	It is

likely, in any event, that the applicant will be

released to employment prior to that date. No

question arises as to the need for liberty pending

appeal so as to prepare the appeal and, on any

view, a substantial amount of the sentence would

remain to be served in custody or on parole, or
otherwise subject to the Corrective Services Act,
as the case may be at the time the matter came on

for hearing.

I would, therefore, dismiss the application.

MR COPLEY:  Your Honour, may I just draw to Your Honour's

attention a slip re a point? Your Honour

mentioned 1994. We would submit it was 1995.

HER HONOUR:  Thank you, 1995. It is probably in your

favour, but thank you.

AT 10.13 AM THE MATTER WAS ADJOURNED SINE DIE

Robinson 14 24/6/91