Schreuder, Rolf John v Australian Securities Commission

[1998] TASSC 150

150/1998

PARTIES:  SCHREUDER, Rolf John
  v
  AUSTRALIAN SECURITIES COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LCA 26/1998
DELIVERED:  4 December 1998
HEARING DATE/S:  1 December 1998
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Bail - Grounds for granting or refusing - After conviction - Special or exceptional circumstances - Generally - Application for bail in unexceptional circumstances.

Justices Act 1959 (Tas), s109(1)(d).
Brown v R [1979] Tas SR 304; Johnson v R, unreported, 7 July 1967, followed.
Giordano v R (1981 - 1983) 6 A Crim R 397; Cameron v Millard (1978) 19 SASR 161; Chamberlain v R (1983) 46 ALR 608; McLeod v Fauser (1986) 42 SASR 356, referred to.
Aust Dig Criminal Law [646].

REPRESENTATION:

Counsel:
           Appellant:  S J Cooper
           Respondent:  I M Arendt
Solicitors:
           Appellant:  Ogilvie McKenna

Respondent:  Commonwealth Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  150/1998
Number of pages:  3

Serial No 150/1998

File No LCA 26/1998

ROLF JOHN SCHREUDER v AUSTRALIAN SECURITIES COMMISSION

REASONS FOR JUDGMENT  SLICER J

4 December 1998

The applicant seeks an order granting him bail pending the determination of his appeal against conviction and penalty imposed for breaches of the Companies (Tasmania) Code 1981.  On 29 July 1998, the applicant was sentenced in the Court of Petty Sessions to a term of imprisonment for a period of three years, nine months of which were suspended, following his conviction for thirteen offences against the Code.  On 29 July 1998, he sought review on the grounds:

"1That the conviction was unsafe and unsatisfactory in all the circumstances.

2That the learned magistrate erred in fact and law in imposing a sentence which was, in all the circumstances, manifestly excessive."

The application for bail is made pursuant to the Justices Act 1959, s109(1)(d), which provides:

"On the application of a person who has filed or been served with a notice to review, a judge may …

(d)      admit the applicant for the review to bail –

in his discretion and on such terms as to costs and otherwise as he thinks fit."

An application for bail made to the learned magistrate was refused on 29 July 1998.  The motion to review was due to be heard during the November sittings of this Court, but for reasons beyond the control of the parties, the matter cannot be heard until February 1999.  The applicant has deposed:

1. That he is a resident of Victoria and is married with three children, the last of whom was born on 3 November 1998.

1. That the proceedings (including investigation) had lasted for eight years and been the subject of three hearings in the Court of Petty Sessions, and two appeals to the Supreme Court.  During this time the applicant had always made answer to his bail.

There was nothing exceptional in the material placed before the Court in support of the application.  As Cosgrove J said in Brown v R [1979] Tas SR 304 at 305:

"At the outset Mr McDermott sought to persuade me that an applicant for bail, who has been convicted and sentenced, is not to be treated any differently from an applicant for bail who is awaiting trial.  He said that it is not correct in Tasmania that bail pending appeal is granted only in exceptional circumstances …

I reject this submission."

In taking this approach, he approved of the comments of Gibson J in Johnson v R, unreported, 7 July 1967, where he said at 1:

"It is firmly established on the cases that there must be exceptional circumstances to warrant the granting of bail after conviction."

The applicant contends that the test of exceptional circumstances has no application to appeals from the court of summary jurisdiction.  That contention accords with the approach taken by Mitchell J in Cameron v Millard (1978) 19 SASR 161, when she stated at 163:

"I believe that the rule that bail will be granted after conviction only in exceptional circumstances has not been applied to applications under section 168 of the Justices Act, 1921, as amended."

Mitchell J approved of a note made in Summary Procedure of Justices 3^rd ed (1957), that:

"If the appellant's sentence will expire before the appeal is disposed of it would appear that he should not be refused bail."

That approach was followed in McLeod v Fauser (1986) 42 SASR 356.

Accepting that a less stringent approach might be taken in cases involving review of summary convictions, its basis is one based more on pragmatism and jurisdiction rather than principle.  In many instances the sentence imposed by a summary court is comparatively short.  Appellate review necessarily involves some delay and there is a risk that the sentence would be served before the determination of the appeal.  As Mitchell J observed in Cameron (supra) at 164:

"It may be asked why there should be a different rule in relation to appeals from courts of summary jurisdiction and appeals after trials by jury.  Certainly in earlier days sentences imposed by courts of summary jurisdiction were likely to be much shorter than those imposed in this Court, and by and large that is still the case.  Offences dealt with in courts of summary jurisdiction are less heinous than those entrusted to either the District Criminal Court or the Supreme Court.  In the case of a short sentence it is otiose to give a right of appeal, if the sentence is to be wholly served or if a great part of the sentence is to be served before the appeal can be heard."

In some circumstances, the disparity between the nature of the offence and the statutory penalty discloses error and the grant of bail might operate to prevent obvious injustice.  As King CJ said in Giordano v R (1981 - 1983) 6 A Crim R 397 at 399:

"It is unnecessary, and would be unwise, to attempt to compile a list of circumstances which would be regarded as exceptional.  The totality of the circumstances must be looked at.  Some relevant factors are indicated by the cases.  Reference has been made in the cases to the prospects of the success of the appeal.  I do not think, however, that the court which considers the application for bail can be expected to assess the prospects of success of the appeal, unless those prospects are obvious.  There are cases, I suppose, in which a perusal of the grounds of appeal and a merely superficial appraisal of the case indicate that the appeal has little prospect of success (Ryan [1930] SASR 125). In some cases there is a ground of appeal which has an obvious prospect of success, McMenamin [1917] VLR 552. The prospect of undue delay, not caused by the appellant, in the appeal coming on for hearing is undoubtedly a factor (Carbone (1976) 14 SASR 176, at p178). An important factor is the duration of the term of imprisonment which has been imposed, especially if it is so short that the term may expire before the appeal is determined (Cooper [1961] ALR 584). No one factor can be regarded as decisive. The court hearing the application must consider all the circumstances in order to determine whether they can be regarded in the aggregate as exceptional."

In part, a grant of bail might serve to preserve jurisdiction.  Brennan J regarded that as the significant factor in his consideration of a bail application in Chamberlain v R (1983) 46 ALR 608, when he said at 609:

"The power of this Court to grant bail rests upon the 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."

He regarded the test in Australia as being that applicable "in exceptional, special or unusual circumstances".

Those pragmatic considerations ought not obscure the central proposition that a person convicted and subjected to a significant sentence of imprisonment ought not ordinarily be afforded bail pending review.  For the purpose of this application, it is accepted that there exists an arguable basis for review.  But the sentence of three years, even with nine months suspended, represents a significant sanction.  The delay between sentence and review does not represent a significant portion of that sentence.  No exceptional circumstances have been shown.  Even if a test of ordinary circumstances, in the sense of pragmatic reasoning, had been applied, the position would remain the same.  In any event, a test of ordinary circumstances does not elevate the position of an unsuccessful defendant to that of entitlement to bail pending review.

In the circumstances of this case, on either test, the application ought not succeed and is refused.