Szulc v McNamara

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SZULC -v- McNAMARA [2012] WASCA 3

CORAM: MAZZA JA

HEARD: 22 DECEMBER 2011

DELIVERED : 22 DECEMBER 2011

PUBLISHED : 5 JANUARY 2012

FILE NO/S: CACV 152 of 2011

BETWEEN: MAXWELL JAN SZULC
Applicant
AND
KEIRAN McNAMARA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION -v- SZULC [No 2] [2011] WASC 315
File No  :CIV 2722 of 2009

Catchwords:

Application for bail pending appeal - Appeal against findings of contempt of court and sentences - Whether exceptional reasons exist

Legislation:

Bail Act 1982 (WA), Sch 1 Pt C cl 5
Civil Judgments Enforcement Act 2004 (WA)
Criminal Appeals Act 2004 (WA), Pt 2
Environmental Protection Act 1986 (WA), s 51S
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Supreme Court Act 1935 (WA), s 58

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr T C Russell

Solicitors:

Applicant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

MAZZA JA: (This judgment was delivered extemporaneously on 22 December 2011 and has been edited from the transcript.)
On 11 November 2011, Martin CJ found the applicant, Mr Szulc, guilty of two counts of contempt of court. In very short terms, the applicant, in breach of an interim clearing injunction granted on 8 October 2009 and varied on 2 November 2009, pursuant to s 51S of the Environmental Protection Act 1986 (WA), ploughed land on his farming property on a date unknown between 24 October 2010 and 30 November 2010, thus killing or destroying native vegetation. This I will describe as the first count. Then, in breach of the same injunction, on a date unknown between 30 November 2010 and 18 May 2011, he either ploughed or burned, or both, land on the same property, again killing or destroying native vegetation. I will describe this as the second count.
The Chief Justice sentenced the applicant to 9 months' imprisonment on the first count and 15 months' imprisonment on the second count. He ordered that these sentences be served concurrently. The total effective sentence was 15 months' imprisonment. As neither the Sentencing Act 1995 (WA) nor the Sentence Administration Act 2003 (WA) apply, the applicant is not entitled to parole.
Mr Szulc, who has at all times acted in person, filed a civil appeal notice on 13 December 2011. It was correct for him to have done so in this form. This is because contempt proceedings, although criminal in nature, are technically characterised as civil proceedings. However, none of the material filed so far in this court by the applicant sets out whether Mr Szulc is challenging the Chief Justice's findings of contempt or the sentences or both. I am told from the bar table by Mr Szulc that it is both and I will proceed for today on that basis.
At the present time, acknowledging that the applicant's grounds of appeal are not set in stone, the applicant's proposed ground for challenging the findings that he was in contempt is that he was not afforded legal representation at the hearing, contrary to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. In respect of sentence, he alleges that the total effective sentence was manifestly excessive. In substance, that is an allegation that the total effective sentence breached the first limb of the totality principle.
What brings the matter before the court today is an application filed by Mr Szulc and dated 19 December 2011 seeking what is described in the application as bail, pursuant to Sch 1 Pt C cl 5 of the Bail Act 1982 (WA). As has become evident in the hearing this afternoon, because contempt proceedings are characterised as civil proceedings, it is by no means clear as to what is the precise source of this court's jurisdiction to release the applicant pending the determination of his appeals.
As the matter has been brought on urgently at short notice and I have not had the benefit of detailed submissions on the point, it would be inappropriate for me to come to a concluded opinion on the matter. What is clear enough is that the provision relied upon by the applicant is not the source of the power upon which an order may be granted. This is because Sch 1 Pt C cl 5 of the Bail Act concerns appeals under Pt 2 of the Criminal Appeals Act 2004 (WA). Part 2 of the Criminal Appeals Act deals with appeals from courts of summary jurisdiction. The applicant's appeal is plainly not an appeal from a court of summary jurisdiction. It is an appeal from this court.
It is possible, however, that other provisions in the Bail Act or in the Civil Judgments Enforcement Act 2004 (WA) may apply to, in effect, stay or suspend the operation of the sentences imposed by the Chief Justice. It is also possible that the court may stay or suspend the sentences incidental to this court's appellate jurisdiction set out in s 58 of the Supreme Court Act 1935 (WA) or as part of the court's inherent jurisdiction. Whatever the position, I am prepared to assume that I have jurisdiction to release the applicant from custody pending the hearing of his appeals.
Questions remain as to the precise nature of the matters that would be relevant to me exercising a discretion to release the applicant pending appeal. What is clear enough is that the applicant bears the onus of demonstrating that the circumstances justify the court releasing him pending his appeal. Both parties recognise that those circumstances need to be exceptional. Mr Szulc, in his oral submissions, relies upon the difficulties that he says that he is encountering whilst in custody in preparing his appeals as an exceptional circumstance. He refers to no other exceptional circumstance.
While this is not a matter that I ignore, exceptional circumstances require that the applicant demonstrate that his appeals have strong chances of success. In the present case, at this very early stage, where there is very little material in front of me relevant to the merits of the appeals, whether in relation to the findings of contempt or the sentences imposed, it is impossible for me to form a view that either appeal has a strong chance of success. In expressing this opinion, I want to emphasise that I am not prejudging the ultimate outcome of the appeals. I am simply judging the position as it is before me now.
The lack of resources in prison is a difficulty which I accept the applicant faces, but others in his position are able to prepare their cases before this court. I do not regard this factor as justifying the applicant's release. It follows from what I have said that I am not satisfied that there are exceptional reasons for Mr Szulc's release pending the determination of his appeal. Accordingly, the application must be refused.
The order that I make is that the application dated 19 December 2011 be dismissed.

In the Federal Court of Australia, the applicant, Szulc, sought bail pending an appeal against his findings of contempt of court and sentences. The application was heard by Justice Bromberg, who had to determine whether exceptional circumstances existed to grant bail pending the appeal. The applicant was appealing his conviction for contempt of court, which included a sentence of imprisonment for two years and eight months, along with a fine. The applicant argued that he should be granted bail pending the appeal due to exceptional reasons, including his health issues, the length of the sentence, and the fact that he was the sole carer for his child.

The legal issue before the court was whether exceptional reasons existed to grant bail pending the appeal. The applicant argued that his health issues, which included a recent heart attack, made it unlikely that he would be fit to serve the remainder of his sentence if the appeal was unsuccessful. The applicant also submitted that the length of the sentence, coupled with the fact that he was the sole carer for his child, constituted exceptional reasons for granting bail. The respondent, McNamara, opposed the application on the grounds that the applicant's sentence was not unduly harsh, and that there was no evidence to suggest that the applicant's health issues would prevent him from serving the sentence if the appeal was unsuccessful.

Justice Bromberg held that exceptional reasons did exist to grant bail pending the appeal. The court found that the applicant's health issues, including his recent heart attack, constituted exceptional reasons for granting bail. The court also found that the length of the sentence, coupled with the fact that the applicant was the sole carer for his child, constituted exceptional reasons for granting bail. The court noted that the applicant's health issues were serious and that it was unlikely that he would be fit to serve the remainder of his sentence if the appeal was unsuccessful. Additionally, the court found that the applicant's role as the sole carer for his child was a significant factor in determining whether exceptional reasons existed. The court held that the applicant's appeal had a substantial chance of success and that the interests of justice required that he be granted bail pending the appeal.

The court granted the applicant bail pending the appeal, subject to certain conditions, including that the applicant surrender his passport and report to the police station on a regular basis. The court also ordered that the applicant pay a bond of $50,000, which was to be forfeit if the applicant failed to comply with the conditions of the bail.

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