Wotton v Director of Public Prosecutions

[2007] QSC 42

[2007] QSC 042

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HELMAN J

No 2087 of 2007

LEX PATRICK WOTTON	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

BRISBANE

..DATE 16/03/2007

JUDGMENT

HIS HONOUR:  The applicant seeks bail pending his being

sentenced in the District Court at Brisbane for the offence of

unlawfully destroying the police station, courthouse, a police

vehicle, and a dwelling house on Palm Island, Queensland while

riotously assembled with others on 26 November 2004.

He was arraigned on an indictment presented against him and

five co-accused on 5 March and pleaded guilty to the charge,

the maximum penalty for which is imprisonment for life.  The

allocutus was administered, the trial of four of the

co-accused then proceeded, and the sentencing of the applicant

was adjourned until the conclusion of the trials of the

others.  The applicant is not to be sentenced until the

conclusion of the trial of the fifth co-accused on the same

indictment, which is listed to begin on 30 April 2007.

The applicant applied for release on bail and was refused

after his Honour heard brief oral submissions from the

applicant's counsel and the Crown prosecutor, who told his

Honour that the Crown's attitude to the application was

neutral, that he could confirm that the applicant had not

proved a flight risk "during the currency of the proceedings",

and that the applicant had lived on Palm Island all his life. 

The applicant's counsel gave details of his history, including

his honouring all his bail commitments "over a sustained

period of time", referred to the need for the applicant to

provide instructions for submissions to be made on his behalf,

and his desire to make arrangements for his extensive family.

His Honour's reasons for refusing bail were brief.  He said:

"The defendant Lex Patrick Wotton has today pleaded
   guilty to an offence that he with others being riotously
   assembled unlawfully destroyed the police station,
   courthouse, a police vehicle, and a dwelling house on
   Palm Island on the 26th day of November 2004.

An application for bail is made on his behalf, citing a
   number of quite separate and compelling reasons why bail
   should be granted.  These include issues concerning his
   family and extended family, both in a practical sense, in
   terms of day-to-day living, and in a sense that I
   might describe as some spiritual dimension to the
   likelihood of his being separated from his family.

Over and above that, there are issues that relate to a
   real need for him to be present in the community
   because of his involvement in the community on Palm
   Island and together with that is the difficulty, so it is
   submitted, of taking instructions from Mr Wotton, having
   regard to the fact that a plea has been entered at this
   stage.

The Crown assumes a neutral position in all the
   circumstances.

The charge is, however, a serious one.  Taking all the
   factors into account, I refuse the application."

In bringing this application, the applicant seeks to rely on

s. 10(1) of the Bail Act 1980, or alternatively on s. 19(1) of

that Act.  Sections 10 and 19 are as follows:

"10  General powers as to bail

(1)  The Supreme Court or a judge thereof may,
            subject to this Act, grant bail to a person
            held in custody on a charge of an offence, or
            in connection with a criminal proceeding, or
            enlarge, vary or revoke bail granted to a
            person in or in connection with a criminal
            proceeding whether or not the person has
            appeared before the Supreme Court in or in
            connection therewith.

(2)  Notwithstanding that a person has been given in
            charge to the jury in connection with the
            person's trial commenced in the Supreme Court
            or the District Court the trial judge may in
            the trial judge's discretion exercise the
            powers conferred on a court by section 8(1) to
            grant bail to that person or to enlarge, vary
            or revoke bail already granted to the person.

(3)  A decision as to bail made in accordance with
            subsection (2) by a trial judge shall be final
            and, notwithstanding this Act, a defendant in
            respect of whom such decision has been made
            shall not have the right to make a further
            application for bail in relation to the custody
            in which the defendant is then held.

...

1. Application re refusal or conditions of bail

(1)  A defendant held in custody in relation to an
            offence who has been refused bail or having
            been granted bail feels aggrieved by the amount
            fixed or any condition imposed for the
            defendant's release from custody may make
            application to a court empowered by section 8
            to grant bail to the defendant for an order
            granting or varying bail.

(2)  On the hearing of the application, the court
            may, subject to this Act, grant bail to the
            defendant, vary the bail already granted or
            refuse the application."

Section 8, so far as it is relevant, provides that a court,

subject to the Act, may grant bail to a person held in custody

on a charge of, or in connection with, an offence if the Court

has adjourned the criminal proceeding: s. 8(1)(a)(ii). 

"Trial" is defined in s. 6 of the Act, the definition section,

as "a proceeding wherein a person is charged with an offence

on indictment and includes a processing wherein a person is to

be sentenced."

On behalf of the Crown it was argued that this court is

deprived of jurisdiction to hear this application by operation

of the privative provision in s. 10(3).  Reliance was placed

on the decision of the Court of Appeal in R. v. Wren [2000] 1 Qd.R. 577. In that case, it was held: that subsections (2)

and (3) of s. 10 apply not only to an application for bail in

a jury trial, but also to a case in which there has been a

plea of guilty and an application is made for bail in the

course of the sentencing procedure; that the last paragraph of

section 10 manifests the intention of entrusting to a trial

judge the question of bail until an accused is discharged or

sentenced and it precludes both appeals and further

applications for bail; that the wide powers of courts to

entertain applications for bail conferred by ss. 8 and 19 of

the Bail Act must be read as subject to the limitation imposed

by s. 10; and that s. 10 is a legislative recognition of the

desirability of orderly trials unimpeded by interlocutory

appeals once proceedings have commenced before a trial judge.

On behalf of the applicant, the response to that challenge to

the jurisdiction of the court rested on the proposition that

in law no decision in respect of bail had been made by the

learned District Court judge and that it followed that this

court is able to make a determination in relation to bail in

the exercise of its jurisdiction under s. 10 or under s. 19 of

the Act.  The argument proceeded as follows.  His Honour had

failed to take into account relevant considerations, viz the

provisions of s. 16, in particular s. 16(1)(a), and the

Crown's concession that the appellant had not been a flight

risk "during the currency of the proceedings"; and his Honour

had failed to address the correct test or criteria for refusal

of bail, and therefore, his decision was tainted with

jurisdictional error.  The decision involved an error of law

and it was an improper exercise of the power under s. 10 of

the Act.  The learned judge did not apply "proper, genuine and

realistic consideration" to the merits of the case - in the

words of Gummow J in Kahn v. Minister for Immigration and

Ethnic Affairs [1987] F.C.A. 713 (11 December 1987,

unreported).  His Honour's reasons were inadequate in that the

reasons, if anything, supported a conclusion in favour of bail

and the exercise of discretion was accordingly no real

exercise of discretion in law:  Stafford v. Redmond (1990) 52

A.Crim.R 173 at p 179 per Teague J.  The decision to refuse

Bail, while a decision given within the jurisdiction conferred by the Act, was infected by the kind of jurisdictional error contemplated in Craig v. South Australia (1995) 184 C.L.R. 163 where it was said that "jurisdictional error will occur where an inferior court disregards some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account...as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the case." (p.177).

Section (10)(3), the privative provision, does not render the

judge's decision inviolable if there was jurisdictional error:

the reference to a "decision" in s. 10(3) is to a legal

decision valid in law not tainted by jurisdictional error or

inadequate reasoning of the kind referred to by Teague J.

Extensive reference was made on behalf of the applicant to the

decision of the High Court in Plaintiff S157/2002 v. the

Commonwealth (2003) 211 C.L.R. 476 in which it was said that a

basic rule that applies to privative clauses generally "is

that it is presumed that the Parliament does not intend to cut

down the jurisdiction of the courts save to the extent that

the legislation in question expressly so states or necessarily

implies...  Accordingly privative clauses are strictly

construed": p. 505 per Gaudron, McHugh, Gummow, Kirby and

Hayne JJ.  Applying that rule to this case, the argument for

the applicant continued, s. 10(3) does not prevent access to

this court in a case involving demonstrable jurisdictional

error by a trial judge.  Although R. v. Wren is binding on a

single judge of this court, it is clear that the Court of

Appeal in that case did not consider, and did not need to

consider, whether the discretion to refuse bail by the trial

judge was tainted by jurisdictional error and so that case may

be distinguished from this one, it was argued.

Section 16 of the Act, so far as it is relevant and was relied

on on behalf of the applicant, is as follows:

"16  Refusal of bail

(1)  Notwithstanding this Act, a court or police
            officer authorised by this Act to grant bail
            shall refuse to grant bail to a defendant if
            the court or police officer is satisfied-

(a)  that there is an unacceptable risk that
                 the defendant if released on bail-

(i)  would fail to appear and surrender
  into custody;.

(ii) would while released on bail-

(A)  commit an offence; or

(B)  endanger the safety or welfare
  of a person who is claimed to be
  the victim of the offence with
  which the defendant is charged
  or anyone else's safety or
  welfare; or

(C)  interfere with witnesses or
  otherwise obstruct the course of
  justice, whether for the
  defendant or anyone else;

...

(2)  In assessing whether there is an unacceptable
            risk with respect to any event specified in
            subsection (1)(a) the court or police officer
            shall have regard to all matters appearing to
            be relevant and in particular, without in any
            way limiting the generality of this provision,
            to such of the following considerations as
            appear to be relevant-

(a)  the nature and seriousness of the
                 offence;

(b)  the character, antecedents, associations,
                 home environment, employment and
                 background of the defendant;

(c)  the history of any previous grants of bail
                 to the defendant;

(d)  the strength of the evidence against the
                 defendant;

(e)  if the defendant is an Aboriginal or
                 Torres Strait Islander person-any
                 submissions made by a representative of
                 the community justice group in the
                 defendant's community, including, for
                 example, about-

(i)  the defendant's relationship to the
  defendant's community; or

(ii) any cultural considerations; or

(iii)any considerations relating to
  programs and services established for
  offenders in which the community
  justice group participates."

On behalf of the Crown it was argued that s. 10(3) prevented

any consideration of the question whether there had been

jurisdictional error by the District Court judge.  There is a

good deal to be said for that argument, in my view.  The

duration of the effect of any decision concerning bail under

s. 10(2) is likely to be brief, and to permit any exception to

the prohibition in s. 10(3) is likely to affect the orderly

progression of a trial or sentencing procedure.  Added to that

consideration is this:  although a decision of a trial judge

is "final", as s. 10(3) provides, it is only final in the

sense that it cannot be reviewed elsewhere.  It is not final

in the sense that the trial judge cannot reconsider it.  As I

read s.10, it does not curtail the power of a trial judge to

reconsider any interlocutory order, ruling, or direction in

the course of the proceedings by removing that power in

relation to decisions concerning bail.  It follows that there

are sound reasons for concluding that s.10(3) should be

construed as it was contended for the Crown it should be. 

Such a result is justified because it is consistent with the

orderly administration of justice while not denying to an

aggrieved person recourse to review, by the trial judge.  I,

therefore, accept as correct the submission advanced by the

Crown.  If there is any scope for the application of the

principles as to jurisdictional error relied on by the

applicant, it must be reserved for only the most exceptional

cases - of which this clearly is not one - in which it is

demonstrable that there has been the most blatant disregard of

the ordinary rules concerning the granting or refusing of

bail.

That conclusion is sufficient to dispose of this application,

but I should add that his Honour's decision appears to me to

have been an entirely reasonable one for a case in which an

accused person has pleaded guilty to a serious offence for

which the maximum penalty is imprisonment for life.  It is

clear that his Honour had regard to such of the considerations

set out in s. 16(2) of the Act as were relevant and then

reached the conclusion that one or more of the risks referred

to in s. 16(1) called for the refusal of bail.  Common sense

and the most rudimentary understanding of human nature would

indicate that once an accused person has formally confessed to

guilt of an offence for which the penalty is imprisonment for

life, the risk of flight and of the commission of further

offences is so great as to call for the denial of bail in all

but the most exceptional cases.  The risk of flight pending

arraignment is of course one thing, and the risk of flight

following formal confession of guilt is quite another thing. 

While it is true that in giving his brief reasons his Honour

did not state what to any reasonable observer should have been

obvious, it is not without significance that he was not asked

for any elaboration of his reasons by those representing the

applicant.

The application is dismissed.

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