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

SlTl/1/PLC

18/8/89

Walker

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

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.

CITl/2/JM	2	18/8/89
Walker

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…

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.

Continue reading Walker v The Queen

Details

AGLC: Walker v The Queen [1989] HCATrans 173
Case: [1989] HCATrans 173
Decision Date

CaseChat Overview and Summary

This matter concerned an application for bail pending a hearing for special leave to appeal before the High Court of Australia. The applicant, Mr Walker, sought bail, with his counsel conceding that the circumstances were "exceptional". The respondent was the Crown, represented by the Director of Public Prosecutions, Queensland.

The primary legal issue before the Court was whether the applicant had demonstrated exceptional circumstances warranting the grant of bail pending his application for special leave to appeal. This involved considering the principles governing the grant of bail in such situations, particularly when an appeal, if successful, might render the sentence already served by the applicant as the full extent of his punishment.

The Court considered authorities such as *Hayes* and *Cooper*. In *Hayes*, Chief Justice Mason expressed doubt that an applicant having been out of custody and then returned to it would alone induce the grant of bail, noting that bail is not granted in every case where a successful appeal would lead to acquittal or no imprisonment. However, the Court also examined *Cooper*, where Justice Fullagar granted bail based on exceptional circumstances, including the shortness of the sentence (two months imprisonment) and the fact that the applicant had already served several months in gaol. This meant that if the appeal were successful, the applicant might have already served the full sentence, rendering any success on appeal ineffectual in alleviating his punishment. The Court noted that it was material to consider the general nature of the evidence and grounds of appeal, without delving into their merits.

Orders