Stefano Pelle v The Queen

[1983] FCA 222

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I N TEE FEDERAL COURT OF AUSTRALIA 1

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AUSTRALIAN CAPITAL TERRITORY

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) No. ACT G68 of 1 9 8 3

DISTRICT REGISTRY

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GENERAL DIVISION

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BETWEEN : STEFANO PELLE

A p p l i c a n t

- AND : THE QUEEN

R e s p o n d e n t

O R D E R

JUDGE MAKING ORDER: Neaves J

DATE OF ONIDER:	2 9 August 1983
ISTHERE MADE:	Canberra

THE COURT ORDERS THAT:

1. T h e appl ica t ion be dismissed.

I N THE FEDERAL COURT OF AUSTRALIA )

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-	AUSTRALIAN CAPITAL TERRITORY	i
) No. ACT G68 of 1983
DISTRICT REGISTRY	)
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GENERAL D I V I S I O N j

BETWEEN : STEFAIVO PELLE

Applicant

AND :

- THE QUEEN

Respondent

CORAM : Neaves J .

- DATE : 29 August 1983

REASONS FOR JUDGMENT

This i s an appl icat ion by Stefano Pel le

( " the appl icant" ) for ba i l pending the hear ing of an

appea l i n s t i t u t ed by him i n t h i s Court against his con-

v i c t i o n and sentence in the Supreme Court of the Australian

Cap i t a l Te r r i t o ry on a charge of conspiracy or , a l ternat ively,

pending the hearing of an applica.tion which he proposes to

make t o t h e High Court fo r t he i s sue o f writs of habeas

corpus, prohibi t ion and c e r t i o r a r i .

The appl icant was charged with an offence against

paragraph 86(1) (a) of the Crimes Act 1914 (Cwlth). It was

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.	alleged that he conspired with certain named persons and
with persons unknown t o commit an of fen re aga ins t a law
of the Commonwealth, namely sub-section 4 ( 3 ) of the Poisons
and Narcotic Drugs Ordinance 1978 of the Australian Capital

Territory. That sub-section provides that a person who has

a controlled substance.in his possession for the purpose of

supplying the substance to another person or to other persons

is guilty of an offence. A “controlled substance” is a

substance specified in Schedule 8 or Schedule 12 to the

Ordinance.

The trial was before a Judge and jury. The j u ry

convicted the applicant of the charge laid against him.

On 26 August 1983 the appiicant was sentenced to imprisonment

for a term of two years six months with a non parole period

of six months.

The applicant has appealed, as of right, to this

Court pursuant to sub-section 2 4 ( 1 ) of the Federal Court o f

Australia Act 1976 against his conviction and sentence. The

grounds of appeal against conviction relate, in the main,

to the admissibility of evidence and the sufficiency of

the directions given by the learned trial judge. In addition

to those grounds it is asserted that the indictment was bad

in law in that the offence charged is one not known to the

law. The applicant has also appealed against the severity

cf the sentence awarded to him.

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I was informed that the appl icant has instructed

his legal a d v i s e r s t o make app l i ca t ion to the High Court

fo r t he i s sue o f writs of habeas corpus, prohibition and

c e r t i o r a r i ix o r d e r t o have determined by that Court the

question whether the indictment disclosed an offence knotm

t o t h e law.

The power of a Judge G € t h i s Cour t t o en te r t a in

an appXca t ion fo r ba i l de r ives from the provisions of t h e

Federal Court of Australia Act 1976 and Order 52, sub-rule 35(3)

of the Fede ra l Court Rules. Sub-rule 35(3) provides that the

Court or a Judge may, upon such terms as it o r h e t h i n k s f i t ,

admit an appellant t o b a i l pending the hearing of his appeal

o r h i s app l i ca t ion fo r l eave to appea l .

I doubt whether i t i s open t o a Judge of this

Court t o e n t e r t a i n an app l i ca t ion fo r ba i l by a person con-

v ic ted of a cr iminal offence in the Supreme Court of the

Aus t ra l ian C a p i t a l Te r r i t o ry where the ground of the a p p l i -

ca t ion i s that proceedings are to be taken in the High Court

i n r e l a t i o n t o t h e v a l i d i t y of the indictment charging the

offence of which the applicant was convicted. It i s ,

however, unnecessary to express a d e f i n i t i v e view on t h a t

quest ion as the appl icant has , as I have said, appealed

a s o f r i gh t t o th i s Cour t and the matter which it i s pro-

posed to argue before the High Court forms a ground of the

appea l to th i s Cour t . The appl ica t ion for ba i l pending

the hear ing of the appea l to th i s Cour t i s c l ea r ly wi th in

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t h e C o u r t ’ s j u r i s d i c t i o n

There i s no doubt tha t the pr inc ip le which

governs the gran t ing of ba i l a f te r convic t ion and sentence

i s t h a t it will not be granted otherwise than in except ional

circumstances.

The a p p l i c a n t r e l i e s on h i s a f f i d a v i t sworn 26

August 1983. I n t h a t a f f i d a v i t he states tha t he i s 48

years of age, was born in Calabr ia , i s married and l ives

i n t h e A u s t r a l i a n C a p i t a l T e r r i t o r y w i t h h i s w i f e and h i s

f i ve ch i ld ren aged between 16 and 22 years . He a l so g ives

some information as t o t h e a s s e t s owned by h i s w i f e and

h imsel f in the Aus t ra l ian Capi ta l Ter r i to ry and the S ta te of

New South Wales. He f u r t h e r s t a t e s t h a t a l l h i s f a m i l y

connect ions are in the Austral ian Capi ta l Terr i tory	and	t h a t
he has surrendered his passport .

The main th rus t o f t he argument presented by

M r . Ki lduf f , counse l for the appl icant , was tha t t he app l i can t

had good p rospec t s o f be ing success fu l i n h i s argument t h a t

the indictment charged an offence which i s not knotm t o the

law. It -c7as submi t ted tha t , to f a l l within paragraph 86(1) (a)

o f the Crimes Act 1 9 1 4 , the conspiracy charged must be a

conspiracy to commit an act . Rel iance was placed on the

p r inc ip l e of the common l a w tha t c r imina l respons lb i l i ty

i s founded exclusively upon ac act or omission accompanied

by the re levant c r imina l in ten t and on d e c i s i o n s t o t h e

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effect that "having in possession" does not const i tute an

act o r omission but simply involves the a r r u s p d with

spec i f i ed facts or circumstances: see - R. v. Grant [l9751

2 N.Z.L.R. 165 a t pp. 168, 169.

O f t h e a u t h o r i t i e s r e l i e d upon by counsel f o r the

applicant, Beclwith v. The Queen (1976) 135 C.L.R. 569;

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1 2 A.L.R. 333 and - R . v. Grant, supra, concerned the question

whether an accused could properly be charged uith attempting

t o have in h is possess ion narcot ic goods . In both cases the

ques t ion was answered i n the nega t ive . The dec i s ion in

Beckwith v. The Queen turned on the cons t ruc t ion of sec t ions

233B and 237 of the Customs Act 1?01 and t h a t i n R . v. Grant -

on the cons t ruc t ion of sec t ion 72 of t h e Crimes Act 1961 of

New Zealand. The o t h e r a u t h o r i t i e s r e l i e d upon were - R. v.

Heath (1810) Russ and Ry 184; 168 E.R. 750 and Dugdale v. The _.

Queen (1853) 1 E & B435; 118 E.R. 499. Both concerned ths

appl ica t ion of	t h e common	law p r i n c i p l e t o	which	I have
r e fe r r ed .

I was informed tha t t he va l id i ty o f t he ind ic tmen t

was not challenged on t h e ground now advanced u n t i l a f t e r

t h e j u r y had returned a ve rd ic t of g u i l t y . The learned

t r i a l judge was then asked to reserve the quest ion for the

cons idera t ion of the High Court pursuant t o s e c t i o n 72 of the

Jud ic i a ry Act 1903 but he declined to do so.

I do not propose to express a view upon the argument

as to the va l id i ty o f t he ind ic tmen t . I doubt, however, whether

t h e a u t h o r i t i e s r e l i e d upon w i l l prove t o be of a s s i s t a n c e i n

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consider ing the proper meaning and e f f e c t of paragraph

8 6 ( l ) ( a ) of t h e Crimes Act 1 9 1 4 . Suf f ice it. L u bay Tor

present purposes that the prospects of the appl icant

succeeding in his appeal on t h a t ground are not such as

to const i tute "except ional c i rcumstances" warrant ing the

release of the appl icant on b a i l . I n t h i s c o n n e c t i o n I

of

note f rom the rep~r t jBeckxr i th v. The Queen i n t h e A u s t r a l i a n

Law Repor t s t ha t i n tha t ca se the High Court refused an

app l i ca t ion fo r r e i ease on b a i l pending the hearing of

argumenr. upon the question whether the indictment on which

the appel lant had been convicted disclosed an offence. That

circumstance must, however, be read i n t h e l i g h t o f t h e

comment made by Brennan J. i n Chamberlain v. The Queen (1983)

57 A.L.J.R. 356 that the grant of bai l pending an appl ica t ion

f o r s p e c i a l l e a v e t o appeal to the High Court will be more

r e s t r i c t e d t h a n t h e g r a n t o f b a i l by cour t s exerc is ing a

gene ra l s t a tu to ry	power	where	the re	i s an actual appeal
pending.

Some reference was made in the course of argument

to the l eng th o f t ime which w i l l e lapse before the appeal to

t h i s Court can be heard as just i fying the release of the

appl icant on b a i l . A s i t t i n g of the Full Court of this Court

i s appointed t o commence in Canberra on 1 November 1983 and

I see no reason why, i f the necessary pre l iminary s teps a re

taken with due expedition, the appeal should not be heard

a t t h o s s s i t t i n g s . Having r ega rd to the se r ious na tu re of

t he o f f ence fo r which the applicant has been convicted, I

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do not regard the period which 1 s l i ke ly to e l apse be fo re

the appeal can come on for hea r ing a s be ing su f f i c i en t t o

consti tute "exceptional circumstances"	as	r e f e r r e d t o	i n
t h e a u t h o r i t i e s .

In my opinion exceptional circumstances have n o t

been made out and I , therefore . dismiss the appl ica t ion .

I c e r t i f y t h a t t h i s and t h e s ix ( 6 )

preceding pages are a t r u e copy of

Reasons f o r Judgment herein of the

Honourable M r . J u s t i c e Neaves.

O - h - ,

29 August 1983.

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