Roos v The Director of Public Prosecutions

[1994] HCATrans 431

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll6 of 1994

B e t w e e n -

SHANE ANTHONY ROOS

Applicant

and

THE DIRECTOR OF PUBLIC

PROSECUTIONS

First Respondent

THE DISTRICT COURT OF NEW SOUTH

WALES

Second Respondent

For judgment

TOOHEY J

(In Chambers)

Roos 26 12/8/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 AUGUST 1994, AT 9.30 AM

(Continued from 11/8/94)

Copyright in the High Court of Australia
MR w. DICKENS: If the Court pleases, I appear for the

applicant. (instructed by Legal Aid Commission of

New South Wales)

HIS HONOUR:  Yes, Mr Dickens, thank you. This is my

judgment on the application I heard yesterday.

The applicant seeks an order that he be

released on bail pending determination of his

application for special leave to appeal from a

judgment of the Court of Appeal given on 29 July
1994 and for an order staying the sentence imposed

on him pending that determination.

On 9 February 1993 the applicant was found

guilty in the Cobham Children's Court on a charge
of assaulting a young mentally disabled man and

otherwise ill treating him, thereby occasioning

actual bodily harm. On 3 May 1993 he was made

subject to a control order pursuant to
section 33(l)(g) of the Children (Criminal

Proceedings) Act 1987 (NSW). The applicant

appealed against his conviction and sentence. His
appeal was heard in the District Court on 9 March

1994.      On completion of the Crown case the

applicant, through counsel, withdrew his plea of

not guilty. Thereafter, the appeal proceeded as to

sentence only.

On consideration of the material before him,

some of which was not before the Children's Court,

Saunders D.C.J. said it was his intention to

increase the length of the sentence imposed by the

Children's Court. The applicant's counsel then

sought leave to withdraw the appeal. His Honour

refused the application and imposed a control order

for 11 months from 9 March 1994.

The relevant legislation in New South Wales

confers jurisdiction on the District Court to hear	and determine appeals from the Children's Court in
criminal matters. There is no other statutory
appeal from the Children's Court. However, the
applicant challenged the sentence imposed by the
District Court in proceedings for prerogative
relief.

The Court of Appeal unanimously rejected the

applicant's contention that he had been denied

procedural fairness by reason of the failure of

Judge Saunders to give him sufficient warning that

he was considering increasing the length of the

control order. Although the applicant wishes to

challenge this aspect of the judgment of the

Court of Appeal, I see no reason· to doubt the

correctness of the judgment of Handley J.A. which,

Roos 27 12/8/94

in this respect, was concurred in by the other

members of the Court.

The Court of Appeal did accept a further

argument of the applicant that Saunders D.C.J.

failed to apply section 5 of the Sentencing Act

1989 (NSW) which required His Honour to set

aminimum and additional term unless, pursuant to
section 6(3), he stated his reasons for his

decision to set a fixed term instead.

However, by majority the court considered that

the error did not constitute an excess of

jurisdiction and that accordingly, prerogative

relief should be refused. The applicant's summons

was therefore dismissed. Sheller J.A. who

dissented on this point would have granted
certiorari, quashed the control order and remitted

the proceedings to the District Court.

The applicant wishes to challenge this aspect

of the court's judgment on his application for	special leave to appeal. The proposition that
there was jurisdictional error is arguable but in
the context of an application for special leave to appeal, it is a relevant consideration that success
in the argument would result in the matter being
remitted to the District Court for reconsideration of the sentence in accordance with sections 5 and 6 of the Sentencing Act. As will appear, that is a course that may be open to the applicant at any event. The conviction itself is not challenged.

Faced with the decisions of this Court

emphasizing that its power to grant bail rests upon

its inherent power to preserve from futility the

exercise of the Court's jurisdiction to grant

special leave to appeal and to allow an appeal

thereafter, the applicant emphasized that if he is

not granted bail he is likely to have served the bulk of his sentence before any appeal is heard,

indeed, before his application for special leave is

heard.

In a number of decisions which it is

unnecessary to recount, this Court has enunciated

as a general principle that bail will not be
granted after conviction and pending appeal unless
exceptional circumstances are shown. True it is
that the principle has often been enunciated in the

context of jury verdicts; nevertheless, the

insistence of the Court that the jurisdiction be

not exercised simply to preserve the status quo is

apposite here.

In the present case, the application for

special leave has not been heard, a consideration

Roos 28 12/8/94

which itself is against the present application.

Importantly, there may be an avenue open to the

applicant to apply to the District Court to reopen

the proceedings pursuant to section 24 of the applicant argued that the provision is inapplicable and the applicant does not intend to invoke the

procedure. The respondent has written to the

applicant stating the intention of the office of

the Director of Public Prosecutions to make such an

application. Whether section 24 is available is

something I do not have to determine. The point is

that there is a procedure which, it is strongly

argued, is available to the applicant and which, if

successful, would resolve this matter in its
entirety. The applicant chooses not to take this

course, but it appears it will be taken by the

respondent. This is a consideration which tells

strongly against this present application.

It is common ground that a grant of bail by

the Court does not affect the running of the sentence imposed by the District Court, (see

Whan v Mcconaghy, (1984) 153 CLR 631). If bail is

granted the sentence is likely to expire, unserved,

if an appeal is unsuccessful and will largely have

run its course before the application for special

leave to appeal itself is heard. Counsel debated

whether, if the sentence was stayed, the Court

might reactivate the sentence if the applicant

fails in his application for special leave to

appeal or in an appeal.	Again, this is a matter I
do not have to decide.	It is enough to say that

doubts have been expressed as to whether the power exists where bail has been granted. (see Parker v

Director of Public Prosecutions, (1992) 28 NSWLR

282, at 298 to 299)

When all these considerations are placed on

the scales, the balance is heavily against the

exercise of the Court's extraordinary jurisdiction. The application is therefore refused. The

order of the Court is that the application be

dismissed. The Court will now adjourn.

AT 9.38 AM THE MATTER WAS ADJOURNED SINE DIE

Roos 29 12/8/94