Tilley v The Queen [2008] HCA 58 19 December 2008 M84/2008
ORDER
1. Application for bail refused.
2.The applicant shall forthwith serve his written case and draft notice of appeal on the respondent.
3.The respondent shall within 21 days of the service of the applicant's written case and draft notice of appeal file and serve its summary of argument.
4.The applicant may within 7 days of service of the respondent's summary of argument file and serve his reply (if any).
5.Subject to any further or other directions of the Court or a Justice, further steps in the application shall be taken in accordance with the Rules.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tilley v The Queen
Criminal law – Jurisdiction, practice and procedure – Bail – Bail pending application for special leave to appeal.
HAYNE J. In March 2004, the Director of Public Prosecutions for the Commonwealth filed an indictment in the County Court of Victoria charging Murray James Perrier, Peter Hans Malman, Voicu Pop and Peter Alan Tilley with having conspired with each other and with others to commit an offence against s 233B(1)(b) of the Customs Act1901 (Cth) of importing into Australia prohibited imports to which s 233B of that Act applied, namely, narcotic goods consisting of not less than a trafficable quantity of the narcotic substance heroin.
Eleven months later, on 2 February 2005, the four accused were arraigned before Judge King. Each pleaded not guilty. Of the four accused, all other than Mr Perrier were then on bail and their bail was continued until the jury returned to consider their verdicts. On 24 March 2005, on the 34th day of the trial, the jury returned verdicts of guilty against each accused. The accused other than Mr Tilley were sentenced on 19 May 2005.
Before she had sentenced Mr Tilley, Judge King was appointed a judge of the Supreme Court of Victoria. Accordingly, on 23 August 2005 another judge of the County Court, Judge Gaynor, passed sentence upon Mr Tilley. Judge Gaynor sentenced Mr Tilley to a term of seven years' imprisonment and fixed a non‑parole period of five years.
In September 2005, Mr Tilley gave notice of application for leave to appeal to the Court of Appeal of the Supreme Court of Victoria against both his conviction and sentence. Mr Tilley's applications were heard with applications made by two of his co‑accused, Mr Perrier and Mr Pop. The applications of the co‑accused proceeded only in relation to sentence. The applications did not come on for hearing in the Court of Appeal until 25 June 2007. It is not possible to say from the material filed in this Court why it is that there was such a long delay between Mr Tilley filing his applications in September 2005 and the applications coming on for hearing…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Tilley v The Queen [2008] HCA 58
Case
[2008] HCA 58
Decision Date
CaseChat Overview and Summary
The applicant, Tilley, sought bail pending an application for special leave to appeal to the High Court of Australia. The dispute concerned the applicant's entitlement to bail in these circumstances.
The central legal issue before Hayne J was whether the applicant should be granted bail while awaiting the determination of his application for special leave to appeal to the High Court.
Hayne J considered the principles governing the grant of bail in such a context. His Honour concluded that the applicant had not satisfied the onus of demonstrating that exceptional circumstances warranted the grant of bail. Consequently, the application for bail was refused. The orders also set out procedural directions for the further conduct of the application for special leave to appeal.
Orders
Orders of the court
1. Application for bail refused.
2. The applicant shall forthwith serve his written case and draft notice of appeal on the respondent.
3. The respondent shall within 21 days of the service of the applicant's written case and draft notice of appeal file and serve its summary of argument.
4. The applicant may within 7 days of service of the respondent's summary of argument file and serve his reply (if any).
5. Subject to any further or other directions of the Court or a Justice, further steps in the application shall be taken in accordance with the Rules.