STEVEN WAYNE HILLIER

[2007] ACTCA 9

IN THE MATTER OF AN APPLICATION FOR BAIL BY

STEVEN WAYNE HILLIER [2007] ACTCA 9 (13 April 2007)

BAIL – Bail pending appeal – prisoner convicted and sentenced for murder – successful appeal to Court of Appeal – set aside by High Court – Appeal to be reheard – no special circumstances.

Bail Act 1992, s 9E

R v Hilton (1987) 7 NSWLR 745

EX TEMPORE JUDGMENT

No. ACTCA 42 - 2004
No SCC 37 of 2004 

Judge:     Connolly J
Supreme Court of the ACT

Date:      13 April 2007

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 42 - 2004
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 37 of 2004
  )
COURT OF APPEAL  )

IN THE MATTER OF AN APPLICATION FOR BAIL BY STEVEN WAYNE HILLIER

ORDER

Judge:  Connolly J
Date:  13 April 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for bail be refused.

THE COURT RECOMMENDS THAT:

1. The prisoner remain in custody in the Belconnen Remand Centre pending his appeal.

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 42 - 2004
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 37 of 2004
  )
COURT OF APPEAL  )

IN THE MATTER OF AN APPLICATION FOR BAIL BY STEVEN WAYNE HILLIER

Judge:  Connolly J
Date:  13 April 2007
Place:  Canberra

REASONS FOR DECISION

CONNOLLY J:

1. This is an application for bail by Steven Wayne Hillier.  On 26 November 2004 Mr Hillier was found guilty by a jury in the ACT Supreme Court of the charge of murder relating to the death of his former spouse, who died on 2 October 2002.  Mr Hillier had been charged with that offence in June of 2003 and, although initially refused bail by a magistrate, as one would expect where a charge of murder is proffered, by the end of June of that year bail was granted by a judge of the ACT Supreme Court, and it is uncontradicted that Mr Hillier complied fully with his bail conditions throughout that period. 

1. Following the finding of guilt by the jury bail was revoked.  In March 2005 Mr Hillier was sentenced to a head sentence of 18 years imprisonment, to be eligible for parole on 2 March 2018.

1. An appeal was brought before this Court, and in December 2005 the Court upheld the appeal and set aside the conviction.  It followed that Mr Hillier was immediately released.  The Crown indicated shortly after that decision that it would seek special leave in the High Court to challenge the Court’s decision, and it did so.  That appeal was heard late last year.  On 22 March of this year the High Court published its decision, which had the effect of setting aside the decision of this Court and ordering that the appeal be re-heard in a different constituted Court of Appeal.

1. Mr Hillier forthwith surrendered himself to police custody and has been in custody since that point.

1. On ordinary bail criteria it is clear that Mr Hillier has always complied with bail conditions, and indeed brought himself to the authority’s attention and surrendered his liberty following the High Court decision and would, on ordinary bail criteria, have a very strong claim for bail.

1. However, the common law and now statute has always drawn a sharp distinction between grants of bail for a person charged with an offence and grants of bail for a person convicted of an offence.  

1. The position, it seems to me, is best summarised in the decision of Street CJ, in the New South Wales Court of Criminal Appeal in the matter of R v Hilton (1987) NSWLR 745. That was a case that occurred after the enactment of the New South Wales Bail Act, which was silent on the question of bail following a conviction. And the Court came to the conclusion, the inevitable conclusion, that Parliament had intended to enact a code, and Parliament, in that form of Bail Act, had not incorporated the common law’s exceptional circumstances test for bail pending appeal, and therefore the application fell to be considered according to the provisions of the statute.

1. The case was remarkable in that the Chief Justice and Hunt J very strongly recommended to Parliament that the Bail Act be amended to include, or to re-incorporate the common law test. That seems to have been done in New South Wales, and clearly is the case in the Australian Capital Territory.

1. Section 9E of the Bail Act 1992 provides that “if a person has been convicted of an offence by a court and sentenced to a period of imprisonment for that offence” which, it is common ground, is Mr Hiller’s circumstances, “the court must not grant bail to the person unless satisfied that special exceptional circumstances exist to favour them the grant of bail”.  In Hilton’s case, Street CJ said that there was a wealth of authority in support of the common law principle. The common law principle being that a person who seeks bail pending an appeal from a conviction or sentence must establish special or exceptional circumstances. His Honour said at 746:

There is a wealth of authority in support of this common law principle proceeding, as it does, upon the basis that the presumption of innocence applicable to unconvicted persons can no longer be advanced by a convicted person when considering a bail application.  As was pointed out by Brennan J, in Chamberlain v The Queen (No 1) (1983) 153 CLR 514at 519-520:

... To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted ...  In a serious case, where the prisoner’s custodial sentence depends upon a jury’s verdict, ... an application for bail before the verdict is set aside is in substance, an application to suspend the effect of the verdict.  To grant bail in such a case is to whittle away the finality of the jury’s finding and to treat the verdict merely as a step in the process of appeal.  A central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation of by an appellate court.

1. Street CJ then referred to decisions of Courts of Appeal in other States reinforcing that principle.  He said (at 746):

The considerations underlying the common law rule were recently restated by King CJ in R v Giordano (1982) 31 SASR 241 at 242; 6 A Crim R 397 at 398-399:

... Before and during trial, the primary, although not the only, consideration is whether the applicant will appear when required to do so.  This consideration has only a minor bearing on the grant of bail after conviction.  Obviously bail after conviction would not be granted unless the circumstances were such as would have indicated bail before and during trial.   After conviction, however, other cogent factors also come into consideration.  ... There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal.  An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed.  It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal.

1. That criteria, I would depose, is more relevant to an appeal on sentence.  I am currently dealing with a situation where Mr Hillier has an appeal against conviction.  However, King CJ continued in the remarks that were quoted with approval by Street CJ in Hilton, by saying at 747:

There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice.   Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself.   Appeals would be launched irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.

1. It seems to me that those common law principles are those that are now enshrined in s 19 of the Bail Act. The special or exceptional circumstances which are urged here relate to Mr Hillier’s health. And there is evidence that Mr Hillier has health difficulties. However, those health difficulties are those that apply to many persons serving terms of imprisonment, and the Corrections Health Service here, or in New South Wales, is entirely appropriate to deal with those circumstances.

1. It has always been the case that added to the special or exceptional circumstance that is relevant to a conviction appeal, is the prospects of success of the appeal.  Ms Walker has taken me to the remarks of Callinan J in the High Court appeal where his Honour would have in effect upheld the appeal and remitted the matter for retrial.  Those issues will, no doubt, be agitated in the Court of Appeal.   But it is a fact that it was only Callinan J who took that view on a bench of five Judges.  Gleeson CJ expressly took a different view, and the other three judges in the majority did not address that.  Their order was not to remit the matter for retrial, rather to remit it for the rehearing of the appeal, thus reinstating the original conviction.

1. It seems to me that this is not a situation where a court can say, at this intermediate stage, that there are strong prospects of success.  It is not a situation with a glaring and obvious piece of evidence that either was in and should not have been, or should have been but was not in evidence.  It is not a situation of fresh evidence matter, where there is some compelling DNA material or other identification material that could be borne in mind.

1. It is an appeal which is, in the normal run of appeals, a situation where there is a range of circumstances which, taken together, it will be urged, ought persuade the Court of Appeal applying the appropriate test as laid down by the High Court here.  Or, I should say, it is restated by the High Court in the Hillier decision, would compel the Court of Appeal to form a view that the jury ought not to have convicted and set aside the conviction.  

1. Those arguments will be developed in great detail, no doubt, both by counsel for Mr Hillier and counsel for the Crown at the appeal.  But it seems to me that at this stage there is nothing in the material that will be going before the Court of Appeal that puts it in any situation other than any other conviction appeal on that ground where the counsel for the convicted person and the convicted person point to a range of factors which, taken together, they say will persuade a court of appeal to intervene to set aside a jury decision.  That is the situation in every appeal brought against every serious conviction, one could say, throughout Australia. 

1. I see from figures published just recently, that over 100 convictions for murder occur in superior courts across Australia within a 12 month period.  The reality is that in many, if not most, cases appeals are launched, and the ground of appeal is very commonly the ground that will be urged here, or at least was urged before in which the Court of Appeal, by a majority, found in favour, and that is that a reasonable jury ought not to have convicted.  That is not, it seems to me, a basis for a grant of bail.   The reality is that the practice around Australia is that, properly, in accordance with the Statute and Common Law, bail in cases where there has been conviction by a jury, particularly in the serious cases, is rarely granted indeed.

1. Delay was counted as a factor.  Delay is certainly a very significant factor where appeal is against sentence, and where the situation can frequently occur in less serious matters, that the period of imprisonment will be wholly or substantially served before the appeal could be dealt with.  This is an appeal against conviction rather than sentence, and the non-parole period is a very long period indeed.  

1. This Court was in a position to offer dates for the re-hearing of the appeal in May, although they were, quite properly, not able to be taken up by counsel for Mr Hillier or counsel for the Crown.  And the understanding that Ms Walker put before me this morning, which is the understanding the Court has, is that dates are being arranged in August that would be mutually convenient to the senior counsel briefed in the appeal.  The senior counsel briefed in the High Court appeal will be available on some mutually convenient dates in August, and the Court will be arranging its sittings to ensure the matter is allocated a date in August to allow the matter to proceed.  So delay, it seems to me, is not a special exceptional circumstance in this case.  Indeed on the contrary, given the nature of the matter, the court is taking steps to ensure that it will be heard as promptly as possible.

1. It is an unusual set of circumstances in the sense that Mr Hillier had his conviction set aside by the Court of Appeal and was at liberty for some 15 months before the High Court revoked that decision and the Court made it clear that that is itself an unusual set of circumstances.  However, the Court, in making the orders that it did, made no comment or observation in relation to Mr Hillier’s liberty pending the retrial for the rehearing of appeal.  And it seems to me that the unusual nature of the successful Crown appeal against a conviction in the Court of Appeal is not of itself a ground for the further grant of bail.

1. Taking into account all the matters that have emerged before me, I am not satisfied that Mr Hillier is able to get over the very substantial hurdle that has been placed by the Parliament reflecting the long common law tradition in the face of a person who has been convicted of a serious offence by a jury.  The reasons set down by Brennan J as he then was, and Street CJ in the cases that I have referred to, is at the centre of the criminal justice system.  

1. A verdict of guilty by a jury is a very solemn matter, and while the Court of Criminal Appeal exists properly to review such a matter, it is a very difficult task indeed to persuade a court that bail would be granted following a jury conviction on a charge of murder.   

1. In considering the argument based on the likelihood of the success of the appeal, I make it clear that I express no view as to the likelihood one way or the other.  Those arguments will need to be dealt with in a full and proper course at the appropriate time, and full and careful consideration given to every point. 

1. I am simply stating today that it is not a case, it seems to me, where it could be said that there is that very strong or overwhelming prospect of success that would justify the grant of bail in the circumstances where a jury has convicted a person of murder and a court has imposed the appropriate significant level of sentence that would be expected for such an offence.  The application, therefore, is denied on the basis that special or exceptional circumstances are not made out.  And I do not need to hear further on the general bail application.

1. I should say that in the course of his submissions counsel for the Crown indicated that it was his expectation that Mr Hillier would remain in the Australian Capital Territory in the remand centre.  That would not be the norm.  The norm would be that persons serve their term of imprisonment in the New South Wales prison system and would be brought to Canberra shortly before appeal.  In these circumstances, however, next week there will be definite dates in August for the hearing of the appeal.

1. Mr Hillier has indicated in the affidavit that was before me that he does wish to further carefully and comprehensively instruct his counsel in relation to the appeal, particularly given the remarks of Callinan J.  There is now a ground of appeal that will need to be very carefully addressed that was not a central ground in the matter that was previously heard before the Court of Appeal.  And he would be seriously disadvantaged if he was not able to have the sort of regular contact with his counsel and his solicitor.  That would be the situation if he was removed to New South Wales.  

1. The Australian Capital Territory does not yet have a permanent prison, and it follows that persons who have been convicted and sentenced to a term of imprisonment will generally be serving that sentence in the New South Wales system, and would not necessarily be brought to Canberra even for the hearing of their appeal.  

1. This is a case, however, given the unusual way that it has progressed through the system and given the fact that the Court of Appeal has previously upheld the appeal that been reversed by the High Court, given the fact that issues have emerged, at least in one Justice’s decision, that will require further careful consideration by Mr Hillier’s legal team, and given that Ms Walker has indicated that Mr Hillier has - while probably not being committed today to indicating what those initial grounds are - is giving instruction on a preliminary basis of other possible grounds for appeal, it seems to me that the interests of justice will very much be served by Mr Hillier remaining in the Australian Capital Territory, where he is able to confer closely and in a detailed manner with his legal advisers, and also where access to his children would be easier, but that is not a compelling matter.  It obviously is to Mr Hillier, but it is not a compelling matter for my recommendation.  My recommendation is based on the fact that justice will be better served if Mr Hillier can have as full as possible access while in custody to his legal team, and that can only occur if he remains in the Australian Capital Territory. 

1. I note that it is not a matter that I can give a clear order on.  I have indicated that view, and if there was a different view to be taken administratively it may be a case that the court would make binding orders, but I am sure that those will be taken into account.

1. So the application today is refused.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date:      13 April 2007

Counsel for the applicant:  Ms L Walker
Solicitor for the applicant:  Nelson & Co Solicitors
Counsel for the respondent:  Mr J Lawton
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  13 April 2007
Date of decision:  13 April 2007