Suresh v The Queen

[1997] HCATrans 281

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone]        

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 39 of 1997

KUNNAKATIL JOHN SURESH

and

THE QUEEN

PERTH

10.04 AM, MONDAY, 6 OCTOBER 1997

HIS HONOUR:   Mr Hockton?

MR D.J. HOCKTON:   I appear on behalf of the applicant, Mr Suresh.

HIS HONOUR:   Yes, thank you.  Ms Sweeney?

MS T.D. SWEENEY:   I appear on behalf of the respondent.

HIS HONOUR:   Thank you.  Yes, Mr Hockton?

MR HOCKTON:   Your Honour, this is an application for bail pending the determination - well, the hearing of an appeal to be heard at the High Court in Canberra on 13 November of this year.  Your Honour, I wonder if you have had an opportunity to peruse the affidavit ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have.

MR HOCKTON:   Mr Suresh was sentenced for a number of offences of a sexual nature.  He is not eligible for parole without first having completed the Sex Offenders Treatment Program.  A prerequisite of attendance on that program whilst a serving prisoner is an admission of guilt.  Mr Suresh does not admit his guilt, therefore is not eligible for attendance on the Sexual Offenders Treatment Program and therefore is not eligible for parole.  Mr Suresh was convicted on 3 February 1994 and would have become eligible for parole on 3 February of this year. 

He will certainly not be eligible for release other than by parole prior to the hearing of the appeal.  Now we recognise, your Honour, that there is a relatively short space of time between now and the hearing of the appeal ‑ ‑ ‑ 

HIS HONOUR:   It is a very short space of time, it is just over a month.

MR HOCKTON:   That is right, approximately 5 weeks.  I have received instructions from Mr Suresh that he wishes to be present at his appeal if he were to be granted bail.  I am not sure as to how he would arrange that, but those are my instructions that he does wish to be present at the appeal, and ‑ ‑ ‑ 

HIS HONOUR:   Well, are you advancing that as a reason for the granting of bail?

MR HOCKTON:   Well, that ‑ ‑ ‑ 

HIS HONOUR:   It is a very dubious one, Mr Hockton.

MR HOCKTON:   It is borderline, and that alone would certainly be insufficient, I would say, for the granting of bail.

HIS HONOUR:   Well, I mean if it was sufficient every time there was an application for special leave to appeal and special leave were granted, it would be a basis for granting bail so the prisoner could attend ‑ ‑ ‑ 

MR HOCKTON:   Yes.

HIS HONOUR:   ‑ ‑ ‑ though represented by counsel, and in this case the hearing is to take place in Canberra, is it not?

MR HOCKTON:   Indeed, and it creates an additional difficulty, but the main basis of the ‑ ‑ ‑ 

HIS HONOUR:   Well, let us just be clear about this.  I mean, is that being advanced as a basis for bail, because ‑ ‑ ‑ 

MR HOCKTON:   It is being advanced as one of two, it is one of two limbs of our seeking bail.

HIS HONOUR:   Well, let me say immediately that it seems to me to be completely without foundation.  Now what is the ground as it appears from the papers?

MR HOCKTON:   Well, the grounds from the papers are the grounds that Mr Suresh is not eligible for parole.  If his appeal is successful, then he is serving additional time over and above the parole period, and that parole period being a specific ‑ ‑ ‑ 

HIS HONOUR:   Well, is that right?  I mean, when you say "parole period", in most cases of course the parole and non-parole periods are fixed by the court, but as I understand it - at least as appears from the papers - it would seem that at some undefined time he is able to embark upon this program. 

MR HOCKTON:   Indeed; and the program is meant to commence immediately upon imprisonment, your Honour, and it is only upon the completion of that course that a prisoner sentenced for an offence of this nature becomes eligible for parole.

HIS HONOUR:   But you mean eligible for the parole which is - or the parole period that has been otherwise determined by the court?

MR HOCKTON:   Yes, or the - to be eligible for release on parole of any sort, in effect, whether that is parole period as established by the sentencing judge or whether by the provisions of the Sentencing Act.
HIS HONOUR:   But these applications are very unusual and it is even more unusual for them to be granted.

MR HOCKTON:   Yes, we recognise that, your Honour.  If we were merely operating on a single limb, whether the time period and the continuation of the period of imprisonment over and above the earliest eligibility for release date, or alternatively on merely wishing to be in attendance at the appeal in order to give counsel instructions, then we would not have brought such an action or suggested to our client that an application of this nature be brought, but the two together does make the matter somewhat different.

Counsel appearing on the appeal was the counsel who represented the appellant and the applicant today on his appeal to the Court of Criminal Appeal of Western Australia.  He was not trial counsel, and indeed has only recently become involved in the appeal to the High Court.  All of the paperwork with ‑ ‑ ‑ 

HIS HONOUR:   Well, when was special leave granted in this matter?

MR HOCKTON:   Special leave was granted - the notice of appeal was on 3 September ‑ ‑ ‑ 

HIS HONOUR:   No, not speaking of the notice of the appeal, I am speaking of the granting of special leave to appeal.

MR HOCKTON:   If you will bear with me a moment, your Honour.

HIS HONOUR:   It appears from the notice of appeal, 15 August?

MS SWEENEY:   15 September, I believe.

HIS HONOUR:   Well, the draft notice of appeal, paragraph 2, specifies 15 August.

MS SWEENEY:   Actually you are quite right, I am misreading it, your Honour.  Yes, 15 August was the order.

HIS HONOUR:   Yes.  Well, that is the answer to that question.

MR HOCKTON:   Yes.  And your Honour, all of the preparation has been undertaken by the applicant themselves, the appellant.  It is only since the granting of leave that counsel has been instructed and Legal Aid have extended aid to cover the costs of that appeal.  So it is not a case where there is very close connection between the counsel appearing at each stage through the process, it is a case where Mr Suresh has done some considerable work in the getting up of his appeal and wishes to see the appeal through to fruition.

HIS HONOUR:   Well, that may well be, Mr Hockton.  As I said before, it seems to me to be a quite insubstantial basis for the granting of bail at this stage.

MR HOCKTON:   Yes.  Well, those are our ‑ ‑ ‑ 

HIS HONOUR:   Or indeed at any stage.

MR HOCKTON:   Yes.  Well, we submit that that factor, taken into account together with the factor of the sentence and the fact that he is a serving prisoner beyond his earliest release date, the two factors taken together bring this within the special and indeed exceptional circumstances.  It would certainly be unusual for someone to be appealing to the court over and beyond the eligibility for release on parole date, certainly having served some 3 years in prison.  Those are my submissions, your Honour.

HIS HONOUR:   Yes, thank you, Mr Hockton.  Ms Sweeney?

MS SWEENEY:   If it please your Honour, the Crown's respectful submission is to oppose my friend's application.  There is only some short time before this matter will be heard, and the situation in this State, your Honour, is that the sentencing judge does not actually impose a minimum sentence, he orders a prisoner to be eligible for parole or he does not make that order, and if the prisoner is eligible for parole, that period determines itself under the Sentencing Act.  The Parole Board is clearly treating the applicant as it should, as a convicted prisoner at this stage, and is legitimately concerned for the community's safety, and it is the Crown's submission that the status quo should be preserved at this stage, that there are no exceptional circumstances which have arisen.

Certainly in the Crown's submission, the desire of an applicant potentially to be present at an appeal would not constitute an exceptional circumstance, and this appeal, as I understand it, raises a single ground, it is not contended that should the appeal be decided in favour of the applicant that his conviction would be quashed, that there would be a need for a retrial, so in those circumstances, your Honour, it is the Crown's submission that the matter should be left as is until the appeal can be heard.  If the appeal is heard and exceptional circumstances arise out of that, then it could be brought on again before the court.

HIS HONOUR:   Yes.  Thank you, Ms Sweeney.  Anything in reply, Mr Hockton?

MR HOCKTON:   No, your Honour.

HIS HONOUR:   This court has said on many occasions that its power to grant bail pending the hearing of an appeal will not be exercised unless exceptional circumstances are shown; only rarely has the power been exercised.  There are no exceptional circumstances prevailing in this case.  The applicant's eligibility for parole apparently depends on him completing a program which he has declined to undertake for reasons which are understandable in the circumstances.  Nevertheless the appeal has been listed for hearing on 13 November, little more than a month away.

It is true that the outcome of the appeal may not be known that day, but that can hardly constitute exceptional circumstances; that is the usual situation.  So far as the further argument advanced by the appellant is concerned, namely that he wishes to be present at the hearing of the appeal, even though that appeal is to be heard in Canberra and he is represented by counsel, affords no basis whatsoever for the granting of bail.  In those circumstances the application must be refused.  Thank you.  The court will adjourn.

AT 10.16 AM THE MATTER WAS ADJOURNED
INDEFINITELY