Walker v The Queen

[1989] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl6 of 1989

B e t w e e n -

DENNIS BRUCE WALKER

Applicant

and

THE QUEEN

Respondent

Bail application

McHUGH J

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MR W. McMILLAN:  May it please, Your Honour, I appear for

( In	Chambers)
.	TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1989, AT 10.00 AM

Copyright in the High Court of Australia

the applicant. (i.nstructed by the Public Defender's

Office, Queensland)

MR R.N. HOWIE, QC:  I appear with MR P. BERMAN for the

respondent Crown. (Lnstructed by the Director

of Public Prosecutions, Queensland)

MR Mcl1I.Ll.JAN':  Your Honour, if I might hand up a short

chronology and some authorities to which I will

be taking Your Honour.

Your Honour, I read the application for

special leave to appeal filed 13th day of June 1989.

HIS HONOUR:	I have read that; I have read all the papers.
MR McMI.LLAN:	As Your Honour will see, this is an

application for bail pending the hearing for

special leave to appeal. At the outset, I

do concede that it is in a class commonly referred

to as exceptional. Some old authorities said

"very exceptional" and used other such blandishments

but the authorities now show it is to be exceptional.

The first case to which I would take the Court

is the matter of HAYES, ( 197 4) 48 ALJR at 455. It

is a decion of Chief Justice Mason. It was an

unusual case in that the Court of Criminal Appeal

of New South Wales had upheld an attorney's appeal

and imnosed sentence in lieu of a non-custodial

order: There was an appeal, of course, by the

accused against that order. He sought bail. At

page 456, in the left-hand column, His Honour

said in the first full paragraph:

For my part, I doubt whether this

circumstance -

that is the fact that he had been out of custody
then placed in custody -

would induce me to grant bail. Bail is not

granted in every case where an appeal, if successful, would result in the acquittal of the appellant or in his not serving a

term of imprisonment.

As it happens there is ..... another -

matter; he dealt with the other matter which I

can say does not apply in this instance and that

is that there was a failure to honour the requirements

of the bail conditions. His Honour then concluded

that in all the circumstances it would not be

appropriate.

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In an earlier decision by Justice Fullagar in a matter of COOPER,(1961) ALR,

page 584; it involved an appeal from the Supreme

Court of New Guinea and Justice Fullagar, at page 584,

considered that exceptional circumstances controlled

his discretion.	He considered at line 45 on page 584.
that there were:

sufficient circumstances which can fairly

be regarded as exceptional ..... The sentence

is, perhaps, the main affirmative consideration

in my mind. It is a very short sentence,

namely, imprisonment for two months, and the

applicant has already been in gaol for some

months because he did not obtain bail,

apparently for technical reasons, before the

trial, and if he remains in gaol pending the

hearing of his application for leave to appeal,

and perhaps his appeal, he may very well have

spent in gaol the full period of his sentence,

so that success on an appeal would not even

alleviate his punishment.

I think it is material, in considering

that element of the shortness of the sentence,

not to investigate at any length the nature of
the case and of the grounds of appeal, but to
consider the general nature of the evidence
and the grounds of appeal.

Then he dealt with those matters and at line 5 on page 585:

I, of course, have no inclination of

opinion as to the merits of the application for

leave to appeal, or of the appeal if it is

granted, but I am left with the impression
that the grounds of appeal are, at any rate,

not frivolous.

That was his test, Your Honour, and he proceeded

to grant the application.

The other authority which is often referred

to is CHAMBERLAIN, 46 ALR 608.

HIS HONOUR:	It is also in the Cotmnonwealth Law Reports.
MR McMILLAN:	My learned friend has a copy.
HIS HONOUR:	It is all right.  I have got it on the Bench.

Carry on.

MR McMILLAN:  Your Honour, the distinction there from

this case, I would submit, is that there you had -

where Mr Justice Brennan considered there was an

attack on the jury's verdict and the jury's verdict

had been upheld by the intermediate court of anneal.

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His Honour, after referring to the number of

cases, which there is no need to go to, as to the

jurisdiction of the Court, said, after referring

to those cases of KULARI and SOUTHGATE:

However the test may be formulated,

in practice the grant of bail pending an

application for special leave to ap~eal to

this Court will be more restricted than the

grant of bail by courts exercising a general

statutory power.

Then, lower down in that paragraph:

The Federal Court has held that the

conviction is not affected by appealable error.

Although counsel will argue that that Court

was in error in dismissing some grounds of

appeal without examination on the merits, the

Court's findings upon the merits, so far

as they go, weigh against the present

application.

If I could take Your Honour to the next paragraph, half-way through it:

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. But the jury is the tribunal

~onstituted to determine whether an accused

should be convicted or acquitted, and its

verdict takes effect innnediately. In a

serious case, where the prisoner's custodial

sentence depends upon a jury's verdict (as

it does when there is a conviction for murder

and there is no discretion as to sentence)

an application for bail before the verdict is

set aside is in substance an application

to suspend the effect of the verdict.

The final authority I would take the Court

to is that of MALVASO. The full text of Justice Deane's

judgment is contained in The Legal Reporter (1989) 8 C 1.

That was an unusual case where Justice Deane was

induced, with respect, to consider the exceptionality

of the application that the applicant was vulnerable

because he had given evidence against a former

chief inspector and officer in charge of the drug

squad. In the right-hand column on page 1 of that compilation, he said this, about eight lines down:

.In my view, the nature of, and the reasons

for, that particular vulnerability of the

applicant while in a custodial situation

provides special grounds for granting the

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applicant bail during the period in which

there exists any significant possiblity
that the applicant might not be required to

serve a sentence of imprisonment.

The question which has caused me most

difficulty in determining whether an order for bail should be made is the question of whether there is sufficient likelihood that

the applicant will succeed in obtaining special leave to appeal and, if he does,

in any subsequent appeal. With real hesitation,

I have come to the view that, in all the

circumstances of this particular case,

including the fact that the applicant seeks

on appeal to re-establish an order made by the

learned sentencing judge, I should not

conclude that the apnlicant's chances of such
success are so slight that I should decline to

make the order sought.

In this matter, as Your Honour would have observed,

the application for special leave to appeal cannot

be heard by the Court until 2 December.	He
received a sentence of two and a half years
imprisonment.	He would become eligible for parole

under the Queensland legislation on 2 February 1990

and,as Mr Harland deposes, he would become entitled

to be discharged from prison in June 1990 because

of the remission system existing in that State. If

he were successful in convincing the Court as to

the merits of obtaining special leave, then, in

the normal course of things, it would be unlikely

that the decision of this Court would be pronounced

before he became eligible for parole. Although

the Court no doubt would have it in mind, nevertheless

the Court has to consider several important issues
of sentencing principle, in my submission, and it is

likely that the decision would not be forthcoming

until towards the end of the first quarter of 1990.

Because of the nature of the application - - -

HIS HONOUR:  That assumes he gets special leave?

MR McMILLAN: That assumes he gets special leave, yes,

Your Honour.	I am, at the moment, just dealing with
the logistical network, as it were.	The matter would

then have to be referred back to the Queensland

Court of Criminal Appeal, in my submission, if the
Court were minded to consider that the Court of
Criminal Appeal in Queensland had erred in principle - a similar event occurred in MILL - and the Court of

Criminal Appeal would not be likely to look at this

matter until March, April, at the earliest, in my

submission, without being too finite. He would be

eligible £or parole, may well have been released,

and, of course, he is coming up against being

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discharged in any event by June. Those are

the calendar matters I take the Court to.

The decision of the Court of Criminal Appeal

in dealing with this matter was pronounced bv

Kelly, Senior Puisne Judge, and at nage 3 of the

published reasons the ~ourt deals with the

matter of sentence. It is at approximately line 54:

The learned judge then referred to

the lengthy criminal history of the appellant
and he outlined a summary of his convictions

for offences of violence and reached the

conclusion that being as lenient as he could

he should sentence the appellant to imprisonment

with hard labour for two and a half years.

The criminal history of the appellant was

something which was properly taken into account

by the learned judge on the basis that being

as it was, it was not such as should influence

him to adopt a lenient view, as there is no

doubt that-the appellant had both a significant

and quite a serious criminal history over a

number of years.

For myself, I am unable to see any error

in the approach made by the learned sentencing

judge to the question of sentence and I can

see no basis upon which this Court should

interfere.

The offence drew a maximum penalty of seven years,

Your Honour, and he received two and a half years.

His previous criminal history is extensive; that

Tl was alway conceded. He had a history of violence

but at approximately the early part of this decade

that violence appears to have diminished. The

only offence of any significance is assault
occasioning bodily harm in December 1984 which
was in respect of an incident occurring in July 1982.

The reasons behind the commission of that offence

were spelt out to the sentencing court and to the	Court of Criminal Appeal. There was a gap in time
and the real thrust of the application for leave is that there must come a time when the courts
say, "Enough is enough; he has served his time.
He committed these offences at a younger age. He
has now reached a stage in life and settled down 11
when we do not take into account in sentencing
for that offence his previous history.

In a matter of principle, Thomas, for

example, at page 201 of his work - a copy of

that page is before Your Honour - at about half-way

down the page, he says:

Even wehre the gap -

that is, between the last offence and the offence

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which was before the court -

is relatively short, some credit will be given

if there is evidence of an attempt to adopt

a stable pattern of life on release from the

last sentence.

He then refers to a case of CANHAM, and some

six lines down:

The Court was 'impressed with the fact

that during the fifteen months the appellant

did try to pull himself together' and although

'it was not a very long period' his efforts

'must stand in his favour'.

In the work by Fox, at page 462, paragraph 11.404,

there is material which indicates that the courts

generally take into account the difference in

time, or, as it says:

a significant period free of crime will be

regarded less seriously. The longer the
period without offending the greater the

mitigatory effect.

The bald submission by the applicant here

is that the Court of Criminal Appeal erred when

they did not take into account the periods of

time in which those offences occurred and the

criminal-free gap.

HIS HONOUR:  That is an enlarged proposition, to assert that,

is it not, Mr McMillan, after all, all

Mr Justice Kelly said was that:

The learned judge then referred to the

lengthy criminal history of the appellant
and he outlined a Stll!ll!lary of his convictions

for offences of violence and reached the

conclusion that being as lenient as he could

he should sentence the appellant to imprisonment

with hard labour.

His Honour goes on to say:

The criminal history of the appellant was

something which was properly taken into

account.

MR McMILLAN:  Those formulations are all very well,

Your Honour, and one cannot argue with them but

they fail to take into account the gap in time.

There is no reference to the fact that there was

quite a period of criminality - if I can refer to

it - and then there was a falling-off. There was

a discernible gap in time.

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HIS HONOUR:  But the fact that Their Honours did not

mention that gap, the five years, does not meant they

did not take it into account; they had the record

before them.

MR McMILLAN:  That is what really the application is

about, that - - -

HIS HONOUR:	Yes, I appreciate that.
MR McMILLAN:	- - - a court should, in discerning the

methodology which the appellate court utilized,

failed to take into account this basic principle, and

it is a principle which is developing generally,

that people with a record, after a period of

10 years and matters of credit, should have it

wiped out. So there is a moving of spirit, as

it were, in the cormnunity which I would be

submitting to the High Court, they can take account

of and lay down a principle. The matter may go back

to the Court of Criminal Appeal with the principle

in front of them and they may yet say, of course,

"We take all that into account. We believe that

even with the five-year gap in time, that was a

reasonable sentence". But without that acknowledgement

of principle, in my submission, they erred.

HIS HONOUR:  Yes.

MR McMILLAN: Those.are the exceptional matters, Your Honour,

particularly in view of the fact that the logistical

calendar shows that he may well lose the benefit

of a successful application.

HIS HONOUR:  Thank you, Mr McMillan. I do no want to hear

you, Mr Howie.

MR HOWIE:  Thank you, Your Honour.

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HIS HONOUR:  This is a summons dated 14 August 1989 for an

order that the applicant be admitted to bail pending

the determination of an application for special leave

to appeal against a sentence and upon special leave

being granted for bail until the determination of
the appeal.

The applicant was convicted on 2 November 1988 on a charge that on 16 October 1987 at Amity Point

in the State of Queensland he entered a dwelling

house with intent to commit an indictable offence

therein. He was sentenced on 2 November 1988 to

be imprisoned with hard labour for two and a half

years. He appealed to the Court of Criminal Appeal

against conviction and as well he sought leave to

appeal against the sentence. On 23 February 1989

the Court of Criminal Appeal of Queensland dismissed

his appeal against conviction.

Can I just stop there. Can I just ask you

this, Mr McMillan: there was an earlier application

for special leave by this accused, which we heard in

Melbourne.

MR McMILLAN:	That is so, Your Honour.
HIS HONOUR:	My recollection is the matter was divided and

that the appeal against conviction was decided last

December.

MR McMILLAN:  Yes. He was arraigned originally on three

counts and one was wilful destruction of property

and the other one was entering a dwelling house with

intent and I forget the other one. But he was

convicted on the malicious damage but there was a

hung jury in respect of the other counts.

HIS HONOUR:  Is paragraph 6 of his affidavit accurate when it

says that:

On the 23rd day of February 1989 the Court

of Criminal Appeal (Queensland) dismissed

the appeal against conviction.

MR McMILLAN:  Yes. And it was an appeal against conviction

in respect of this particular offence.

HIS HONOUR:  Yes, thank you. I will continue my judgment.

On 23 February 1989 the Court of Criminal Appeal of

Queensland dismissed the appeal against co:nviction

and refused leave to appeal against the sentence.

An application for special leave to appeal against

the judgment of the Supr~me Court of'Queen~land	sitting at the -Court of Criminal Appeal,
in so far as it related to the refusal of the
application for leave to appeal against sentence, was
lodged on 13 June 1989.

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The affidavit in support of the application for special leave to appeal submits that

a serious error of law occurs when a Court of

Criminal Appeal in approaching the question of the

appropriate sentence to be imposed on an offender

merely refers to the significant and serious history

of the criminal record of the offender over a number
of years without referring to the gap in time which

has elapsed between the date of the last offence

being connnitted and the date of the connnission

of the offence in respect of which the appeal has

been brought. The affidavit in support of the

application for special leave to appeal also

recognizes that the application is out of time and

seeks to give an explanation for the delay.	The
affidavit, sworn by the solicitor for the

applicant, says that the reason for the delay was

that his office, being the office of the Public

Defender, sought the opinion of counsel as to the

desirability of appealing to the High Court. After
the receipt of counsel's advice on the prospects

of success, a reconnnendation was forwarded to the

head office of the Department of Justice in Brisbane

seeking the necessary provision of legal aid to make

the application. The affidavit states:

"By reason of the delays inherent in those

procedures this application is now out of

time and accordingly leave is sought to bring

the application, notwithstanding that the
time laid down by the Rules of the Court has

expired."

In his submissions this morning, Mr McMillan,

who appears for the applicant, accepts that the

authorities in this Court establish that only in

exceptional circumstances will bail be granted

pending the hearing of a special leave application.

He submits, however, that the circumstances of this

case are exceptional. He points to the fact that

the application for special leave to appeal will

March 1990 and that, if the appeal is successful,	not be heard until 6 December 1989. a decision on any appeal is not likely before He says that	the matter will have to be remitted to the Court of
Criminal Appeal of Queensland. He points out that
the applicant is due for release from prison, after
taking remissions into account, on 29 June 1990 and
that he will be eligible to apply for parole on
2 February 1990. In these circumstances, he says
that unless bail is granted the application for
special leave to appeal and the subsequent appeal
may be rendered nugatory.

It is enough to say that there is nothing in

this chronology which makes the case exceptional.

The basic assumption in the submissions of Mr McMillan

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is that the application for special leave to appeal

will be successful. If that application fails, then it will fail at a time when the applicant's sentence

is still being served. If it succeeds, a new

application can always be made. There does not
seem to me to be anything in respect of the case
which places it in the exceptional category necessary

for the grant of bail.

But, in any event, even if the applicant had

established exceptional circumstances, it would still

be necessary for him to show that there was a

sufficient likelihood of the special leave application

being successful. Without in any way wishing to
prejudge the prospects of the application for special
leave, I think that the grounds relied upon do not

excite confidence in its likely success.

Mr Justice Kelly, in the Court of Criminal Appeal,

in refusing leave, after referring to various matters,

stated:

"The learned judge then referred to the
lengthy criminal history of the appellant
and he outlined a summary of his convictions

for offences of violence and reached the

conclusion that being as lenient as he could
he should sentence the appellant to imprisonment

with hard labour for two and a half years. The criminal history of the appellant was something which was properly taken into account by the

learned judge on the basis that being as it

was, it was not such as should influence him

to adopt a lenient view, and there is no doubt
that the appellant had both a significant

and quite a serious criminal history over a

number of years.

For myself, I am unable to see any error in the
approach made by the learned sentencing judge

to the question of sentence and I can see no

basis upon which this Court should interfere."

Mr Justice Macrossan and Mr Justice Shepherdson

agreed with the judgment of Mr Justice Kelly.

The point made by Mr McMillan is that although

the applicant, as Mr McMillan conceded, had an

extensive criminal record and a previous history of
violence, he had not been guilty of criminal

conduct of any seriousness between 9 July 1982,

when he was convicted of assault occasioning

bodily harm, and the commission of the present

offence in October 1987. In these circumstances

Mr McMillan argues that the Court of Criminal Appeal

erred in not giving weight to the five-year gap

between the last serious offence for which the

accused was convicted and the present convictions.

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On the application for special leave to appeal, the applicant may well have difficulty in persuading

this Court that the Court of Criminal Appeal did not

have that gap in mind. The mere fact that

Mr Justice Kelly did not specifically refer to the

gap in a short extempore judgment does not mean it

was not a factor that was taken into account, or that

the Court of Criminal Appeal overlooked the point.

Nor does the point seem a strong special leave point.

However, it is unnecessary to make any final decision

as to whether or not there is a sufficient likelihood

of the applicant succeeding on the application for

special leave to appeal. It is enough to say that

the grounds relied upon in support of the application

are not sufficient to induce the grant of bail.

In all the circumstances of the case I am of

opinion that the applicant has failed to prove that

the case is one where exceptional circumstances are

present. The order of the Court is that the summons

is dismissed.

MR McMILLAN: If the Court pleases.

HIS HONOUR:	Anything further? Thank you.
AT 10.34 AM THE MATTER WAS ADJOURNED SINE DIE	,,

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