Peters v The Queen M87/1996 [1996] HCATrans 498 (6 December 1996)

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OF PROCEEDINGS

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Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

Fax [phone]

O/N 5957

A 12.12.96

A 17.12.96

A 18.12.96

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M87 of 1996

BETWEEN: PHILIP PETERS

Applicant

- and -

THE QUEEN

Respondent

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 6TH DAY OF DECEMBER 1996

AT 2.15 PM

MR P.G. PRIEST: I appear for the applicant (instructed by Jonathon Kemp & Associates).

MR N.T. ROBINSON: I appear on behalf of the respondent (instructed by the Director of Public Prosecutions (Commonwealth)).

HIS HONOUR: Mr Priest.

MR PRIEST: Your Honour, the principles upon which this application fall to be determined are tolerably clear and it will not - - -

HIS HONOUR: Well, you have got to show some exceptional circumstances.

MR PRIEST: Exceptional circumstances. And, your Honour, what I rely upon as being exceptional are two things. First of all, it seems clear enough that by the time the special leave application came to be dealt with there would be one day of the actual custodial component of the sentence imposed left to be served. That of itself, your Honour, I accept may not be and, indeed, probably is not exceptional, but it is - - -

HIS HONOUR: You have got to show some prospect of success at least of getting special leave.

MR PRIEST: Yes. Your Honour recently said in Mpeheleranas and Kostakidis this, it has been supplied, your Honour, in the bundle of cases, at page 25, line 35:

The applicant's application is for special leave to appeal and any appeals if leave is granted can it seems to me be heard in this Court before the expiration of their sentences and before they become eligible for parole.

And I interpolate at this stage, your Honour, to say that that distinguishes this case because that is not equally applicable here.

HIS HONOUR: Well, the sentence will not have expired by the time you come on for hearing.

MR PRIEST: The sentence will not, but unlike a minimum term in the usually understood sense when a person is the subject of a recognisance release order they must be released at the expiry of that recognisance release term as opposed to being subject to the vicissitudes of a Parole Board, and that distinguishes this case too.

HIS HONOUR: But they are liable to be taken back to prison if they misbehave during the parole period?

MR PRIEST: That is so, yes:

The application for special leave in any appeals will not therefore be rendered futile if bail is not granted because the applicants will still have a non-parole portion ...(reads)... if bail is not granted.

If I can take your Honour then to the next paragraph and, with respect, I submit this is probably the more important part of it:

Moreover even if I were to consider that the reduced effectiveness of the order which might be made by this Court in favour of the applicants was a relevant consideration ...(reads)... clearly have to be taken into account.

And your Honour came to the conclusion in that case summed up in the last line on page 26:

I do not consider that the applicants have a substantial prospect of success in their applications for special leave to appeal.

HIS HONOUR: Well, that was a sentencing case, of course.

MR PRIEST: Yes, it was. Your Honour, in my respectful submission the decision of the Court of Criminal Appeal is attended by obvious error. In my submission the Court below misunderstood at the very least what was said by the English Court of Appeal in Ghosh, the Court below misunderstood that the test for dishonesty as laid down in Ghosh is a purely subjective test, and given that in my submission there is obvious error. Given that that is the case in my respectful submission the case is one where special leave would very likely be granted. In my submission that is - - -

HIS HONOUR: But you seek to argue also, do you not, that the test in Ghosh is not the test?

MR PRIEST: Yes. It is put, your Honour, that the appropriate test is to be found in Salvo - - -

HIS HONOUR: Brow, Bonollo.

MR PRIEST: - - - yes, rather than Ghosh itself.

HIS HONOUR: Ghosh has been followed not only in Lawrence's case but in Queensland in Maher.

MR PRIEST: Yes.

HIS HONOUR: In Western Australia in Cornelius and Briggs and in - well, no, in New South Wales they have gone the other way in Condon, have they not?

MR PRIEST: Yes, they have. Interestingly enough, your Honour, in Maher the Queensland Court of Appeal misunderstood in the same way that the Court of Appeal here misunderstood the test in Ghosh because the Court in Maher were of the view that there was an objective component to the test so that there seems to be, with respect, widespread misunderstanding as to Ghosh. The ultimate place for that to be corrected, of course, is in this Court. That is why I submit apart from anything else that this is a case where special leave would likely be granted.

The issue is squarely raised so that this is the appropriate vehicle for it, it is a matter of considerable importance because there are divergent opinions it would seem not only between Courts in New South Wales and Victoria but very arguably between New South Wales and Queensland. Ghosh has been the subject - - -

HIS HONOUR: Did Lawrence's case overrule any of Salvo, Brow and Bonollo.

MR PRIEST: No, Lawrence's case, your Honour, in my submission in effect says, in effect holds that the Salvo test is inapposite to a charge under Commonwealth legislation such as this.

HIS HONOUR: That fraud is a different thing in the Commonwealth from that which it is in the States, or at least dishonesty is.

MR PRIEST: Yes. Calloway J came to the view that fraudulently, although it equates with dishonesty, and I am paraphrasing, of course, what his Honour said, it is not used fraudulently is not used in a special sense in the same way that dishonesty is used in a special sense as it has been held in crimes under the Theft Act.

HIS HONOUR: Or its equivalent, yes.

MR PRIEST: Yes. So that in Victoria we have two standards for dishonesty which in itself produces curious results because when one looks at Ghosh one of the things that the Court of Appeal held in Ghosh was that the meaning of dishonesty was the same for offences of conspiracy to defraud and those created by the English Theft Act so that in England at least there is a uniform meaning that attaches to dishonesty whether it is a crime of conspiracy to defraud or a crime under the Theft Act, whereas in the Australia as a result of the application of Ghosh certainly in Victoria there are two different standards of dishonesty which again in my submission is unsatisfactory.

Although I did not reduce this to writing special leave was refused by this Court in Brow's case, the date now escapes me.

HIS HONOUR: Well, it was some time before 1982.

MR PRIEST: Yes.

HIS HONOUR: And I think I appeared in Brow's case.

MR ROBINSON: Did your Honour?

HIS HONOUR: It was in 1981.

MR PRIEST: Your Honour's advocacy obviously was such that you were able to persuade the Court at that stage that special leave ought not be granted.

HIS HONOUR: No, no, not in the special leave application.

MR ROBINSON: On the appeal.

HIS HONOUR: In the Court of Criminal Appeal, yes.

MR PRIEST: And, your Honour, the matter is uniquely one within the province of this Court, and there continues to be a great difference of opinion both judicial and academic as to what is to be drawn from Ghosh.

HIS HONOUR: Well, some water has flowed under the bridge since then.

MR PRIEST: And just by way of illustration on this question as to whether or not the test in Ghosh is subject of only, or object of only, or has a mixture of both, subject of an object of elements. A text that is very widely used - - -

HIS HONOUR: And of course Brow's case was before Ghosh.

MR PRIEST: Yes.

HIS HONOUR: Yes.

MR PRIEST: In fact my memory is, and I have not brought Salvo, Brow or Bonollo with me, but my memory is that Ghosh was decided after those three cases.

HIS HONOUR: Yes, it was.

MR PRIEST: There is a text that is very widely used, your Honour, which contains standard directions in criminal trials, it is a work by Glisson and Tilmoth. The learned authors of that work themselves in that work suggest that the test for dishonesty that flows from Ghosh is subject of only, and, of course, although what the learned authors have to say about it is not authority nonetheless it demonstrates that there is a great difference of opinion and that controversy continues to arise and that is why I submit with respect that this would be an appropriate vehicle for special leave.

HIS HONOUR: You say there would only be one day left, on the date you have been given, as the likely date for listing for hearing.

MR PRIEST: Yes.

HIS HONOUR: That is 14 February, there would be only one day left of the custodial sentence to serve?

MR PRIEST: Yes, subject to this, that if, and this is an unknown factor, if there were a lock down as it called at Pentridge he might - the prisoners are administratively credited with two days for every one and if there was such a lock down, and these things happen I think it is fair to say reasonably commonly, that would mean that he would actually be released prior to the special leave application.

HIS HONOUR: Subject to that he is due to be released as you say on his own recognisance, is that right, on the 15 February?

MR PRIEST: Yes, the following day, yes.

HIS HONOUR: Yes.

MR PRIEST: If your Honour pleases.

[2.30pm]

HIS HONOUR: Thank you. Mr Robinson.

MR ROBINSON: If your Honour pleases. It is submitted, your Honour, that the possible, or as it now would appear, likely expiry of the period before the applicant can be released on his own recognisance does not of itself constitute exceptional circumstances and particularly in circumstances such as here as my friend, I take it, concedes that is likely to be so and predominantly relies upon what he submits it the strength of the grounds for special leave.

It is submitted, your Honour, that in this case the point my friend seeks to rely upon in particular in relation to Ghosh is that he submits that the Court of Appeal erred in its construction of Ghosh. It is submitted that the Court of Appeal have applied Ghosh as it appears, that that is a reading of Ghosh which has been applied elsewhere in Australian Courts as indeed your Honour has referred to my learned friend in opening.

HIS HONOUR: What do you say Ghosh says?

MR ROBINSON: Your Honour, I submit that what Ghosh says is that for the purpose of ascertaining whether or not the accused has the mental element of dishonesty the jury must ascertain whether or not he, that is the accused, recognised in his own mind that his conduct would be considered dishonest by ordinary reasonable people. And for the purpose of ease of direction it would appear that in this case, as indeed in others following Ghosh, the jury are instructed because they are members of the community to ascertain what would be a reasonable standard for the purposes of what is honesty and then to decide whether the accused recognised that his conduct was in breach of that. It is submitted that - - -

HIS HONOUR: And the test in Salvo, Bonollo and Brow is purely a subjective one that he has to intend to act dishonestly according to his own standards.

MR ROBINSON: Yes, your Honour. And it is submitted that there is no basis set out in support and I did not understand my friend to argue any arising from either - from any of Salvo, Brow or Bonollo why that test should apply to dishonesty outside its limited terms in the Crimes Act. The authorities of Salvo and particularly Brow and Bonollo following were concerned with a peculiar definition of dishonesty as appearing in section 81 and 71 because of the extension by 73 of what is not dishonesty by reason of what I would call claim of right, the statutory recognition that it is not dishonest if certain things are existing in the mind of the accused.

It is submitted that what was considered in Salvo and the subsequent cases was whether or not the term was given a legal definition to become a term ...(indistinct)... the purposes of the Theft Act provisions and it is submitted that that was in fact what the court held in Salvo and was subsequently followed in Brow and Bonollo to the effect that there is a statutory definition peculiar to the Theft Act provisions in Victoria for what constitutes dishonesty for the purpose of the definition of obtaining property by dishonesty, by deception or theft.

HIS HONOUR: Then Ghosh is an extraordinary thing even so, is it not, that you take an ordinary English word like dishonesty and then attempt to define it according to community standards rather than just leaving it to the jury. No-one ever attempts to define reasonableness but that is just as much as matter of standards as dishonesty.

MR ROBINSON: With the - - -

HIS HONOUR: Particularly when you are talking about reasonable doubt.

MR ROBINSON: Well yes, your Honour, though it is submitted that the - what is recognised in Ghosh is that the jury are directed that they are the arbiter of what is dishonesty by - - -

HIS HONOUR: Well the arbiter of the meaning of ordinary words in the English language but you do not have to go into explanation do you.

MR ROBINSON: No, your Honour that is so. It would appear that the reason expressed in Ghosh was because of the concern the so called Robin Hood arguments in Greenway and others that - - -

HIS HONOUR: That is only if you say that dishonesty is what the accused thinks it is.

MR ROBINSON: Indeed, your Honour.

HIS HONOUR: That is not an ordinary use of language either.

MR ROBINSON: No, I would submit, no. And in my submission what Ghosh really recognises is that the term is an ordinary word and that the jury are to apply it as such but they are given the assistance of the court that they are to decide it.

HIS HONOUR: I am merely expressing my wonderment that it has become a matter of such controversy but there is no doubt it has, is there really.

MR ROBINSON: Well, your Honour, it is a matter of controversy in the sense that my friend alleges that there is dispute between the authorities. In my submission the authorities are certainly subject to the period since Ghosh and in Australia that for the purpose of conspiracy with fraud and fraudulent meaning that Ghosh is adopted.

HIS HONOUR: And yet last year in Condon's case the New South Wales Court of Criminal Appeal seemed to revert to Salvo.

MR ROBINSON: Well, your Honour, I would submit that Condon was an unusual case in the sense that the argument before the Court there was really the question of what constituted claim of right. The facts in Condon were that there was a claim by Condon of entitlement to, I think it was - I cannot think of the technical term of social security - but there were certain benefits and payments and there were documents that had to be lodged and the question was whether or not in his lodging documents and taking payments he was genuinely claiming an entitlement that he believed he was legally entitled to and thereby was not dishonest.

And it would appear that in support of the argument the existence of claim of right and how it would be ascertained that Salvo was referred to and it is submitted that really what - - -

HIS HONOUR: But referred to with approval.

MR ROBINSON: Yes, your Honour, it was and that is so, but in my submission it can be seen that it was a peculiar case in itself in that it was looking at claim of right in the context of dishonesty. But I acknowledge that Condon does not follow the general lines of authority and as the Court here recognised in relation to the way it was dealt with and would appear with respect to the Court to have been decided per curium in the sense that Ghosh and the other cases, Maher and Lawrence and so on were not apparently put in argument. Certainly not referred to by the Court in their decision.

HIS HONOUR: Nevertheless it would not be a complete and utter surprise to you if special leave were granted in this case to solve or to sort out the problems would it?

MR ROBINSON: Well, your Honour, special leave of course is - the matter is somewhat elusive - - -

HIS HONOUR: You say that you are never surprised in that field of endeavour.

MR ROBINSON: But, no, your Honour, my friend argues that it is a point that has not been the subject of decision by the High Court and for that reason no doubt it is a matter that the High Court may well decide is appropriate to be dealt with by special leave but in my submission even in the circumstances if it may be said that it would not be surprising, in my submission, your Honour has to be satisfied not just that there might be success in relation to the special leave point but in that all the circumstances that if bail were not granted - sorry, that in all the circumstances these are exceptional.

In my submission the fact that special leave may be granted is not of itself of course an exceptional circumstance.

HIS HONOUR: And it may not mean of course that any appeal is ultimately successful.

MR ROBINSON: Indeed, your Honour. That would be, in my submission, the next step that the granting of special leave has been recognised in a number of reported authorities as only one step along the way and the strength or otherwise of the success of the appeal is a matter which has some bearing upon the likelihood of being granted. In the absence of argument being presented, your Honour, of course it is idle for me to seek to speculate to the Court what might be the likelihood of the success of an appeal.

But my submission is even if your Honour's view is that special leave would not be surprising that in the circumstances of this case even the grant of special leave together with the expiry of the non custodial period would not constitute exceptional circumstances.

HIS HONOUR: Mr Robinson, I think in Victoria now if bail were granted it is entered into before a bail justice is that the correct term?

MR ROBINSON: Well, your Honour, yes it can be.

HIS HONOUR: Is that the correct term?

MR ROBINSON: Well, your Honour, it is entered in front - - -

HIS HONOUR: Is a bail - - -

MR ROBINSON: Well it can be entered in front of the registrar of different courts as well. If the County Court grants bail it is often actually executed in the presence of the Registrar.

HIS HONOUR: Well would the Sheriff of the Supreme Court - - -

MR ROBINSON: Yes. Yes, but they are Bail Justices, your Honour.

HIS HONOUR: The Sheriff of the Supreme Court as well.

MR ROBINSON: Yes, your Honour.

HIS HONOUR: And he would be a suitable person would he?

MR ROBINSON: He is your Honour I understand a Bail Justice and would be a suitable person.

HIS HONOUR: Yes. And if bail were granted you would have no objection to it being in similar terms to the - - -

MR ROBINSON: No, your Honour, indeed not. The terms that were granted by the Court of Appeal pending the appeal would not be opposed and I do not know, my friend and I have spoken about what might be terms if your Honour were to grant bail and certainly there would be no objection to the terms as - - -

HIS HONOUR: Of they being in the same terms.

MR ROBINSON: Being the same, yes, your Honour.

HIS HONOUR: Mutatis mutandis is the order that was made previously. Yes, thank you, Mr Robinson.

MR ROBINSON: If your Honour pleases.

HIS HONOUR: I need not trouble you, Mr Priest.

The applicant is a solicitor who appeared before the County Court in Melbourne in September 1995 on an indictment containing two counts. The first count alleged that the applicant conspired between 1983 and 1987 to defraud the Commissioner of Taxation. The second count alleged that the applicant conspired to pervert the course of justice.

After a trial lasting 14 days the jury convicted the applicant on the first charge and acquitted him on the second. On 9 October 1995 the applicant was sentenced to 18 months imprisonment, to be released on a recognisance to be of good behaviour after serving four months. The applicant was granted bail by the Victorian Court of Appeal on 19 October 1995, that is to say, 10 days after the commencement of his term of imprisonment, pending applications for leave to appeal to that Court against both the conviction and sentence.

Those applications were heard by the Court of Appeal between 13 and 15 August 1996 and dismissed on 11 November 1996. On 28 November 1996 the applicant filed an application for special leave to appeal to this Court. I am told that that application is unlikely to be listed for hearing before 14 February 1997. The applicant is due to be released upon a recognisance on 15 February 1997. The applicant therefore seeks bail pending the hearing of determination of the application for special leave.

As I recently had occasion to point out in Kostikidis v R (unreported, 24 October 1996), this Court does not enjoy any general jurisdiction to grant bail. The power to grant bail is to be found only in this Court's inherent power to preserve from futility the exercise of its jurisdiction by preserving the subject matter of a prospective appeal or application for special leave to appeal. See Chamberlain v R [1983] HCA 13; (1983) 46 ALR 608, and Malvaso v R (unreported, High Court of Australia, 27 April 1989). Even if this Court did have a general power to grant bail pending an appeal it would remain a power to be exercised only in exceptional circumstances. See Re Cooper's Application for Bail [1961] ALR 584, and Hayes v R (1974) 48 ALJR 455.

In addition since an application for special leave to appeal against conviction or sentence or both will ordinarily be made after an appellate Court has considered the case and found no error, the occasions on which this Court will grant bail are rare indeed. In accordance with those principles one occasion when bail may be granted is where there is a risk that the sentence will have been served or substantially served by the time an application for special leave to appeal is heard and where the application for special leave enjoys a reasonable prospect of success.

In this case there can be little doubt that an application for special leave heard on 14 February 1997 would in all practical respects be futile. The applicant will still have one day of the custodial part of his sentence to serve as well as the remaining 14 months of his sentence during which, in the event of misbehaviour, the applicant could be returned to gaol. But there is no suggestion that the latter is likely to occur and in real terms the applicant will have served, save for one day, the custodial part of his term of imprisonment by the time the application is heard and determined. Were the applicant ultimately successful in this Court, the quashing of his conviction would be the only practical benefit.

The more difficult question is whether the application for special leave enjoys any reasonable prospect of success. According to the draft notice of appeal the applicant seeks to have this Court hold that the test for dishonesty on a charge of conspiracy is a purely subjective one. The Court of Appeal in this case held that the appropriate test of dishonesty is that laid down by the English Court of Appeal in R v Ghosh [1982] EWCA Crim 2; [1982] 1 QB 1053. That is a decision which was approved only recently by the Victorian Court of Appeal in R v Lawrence (1996) 138 ALR 347 despite Victorian authority to the contrary. See R v Salvo [1980] VR 101, R v Brow [1981] VicRp 75; [1981] VR 783, R v Bonollo [1981] VicRp 63; [1981] VR 633.

A similar view to that taken in Lawrence has been taken in Queensland in R v Maher [1987] 1 Qd R 171, in South Australia in R v Aston and Purnell (1987) 44 SASR 436 and in Western Australia in R v Cornelius and Briggs (1988) 34 A Crim R 49. But the New South Wales Court of Appeal has recently displayed a preference for the view now rejected in Victoria. See R v Condon (1995) 83 ACrimR 335. Before the Court of Appeal in this case counsel ultimately assumed that that Court would follow Ghosh and Lawrence and instead focused on a matter which the applicant does not seek to raise in this Court, namely, whether the trial judge properly directed the jury in accordance with Ghosh and Lawrence, as he purported to do. However, before this Court the applicant seeks to argue that Ghosh has been misunderstood in this country, or that if it has been correctly understood, it should not be followed.

In my view the point which the applicant wishes to raise is of the kind which may attract the grant of special leave. On the material before me I certainly do not think that the applicant's case is unarguable. The test that has now been adopted in Victoria has not escaped criticism in England where the term "dishonesty" as it appears in the Theft Act (UK) has had what has been described as "an erratic career." See Fisse, Howard's Criminal Law, 5th ed (1990) at 286 n 18.

The prolonged debate on the issue in Victoria and the cases in other state courts indicate that the matter is not without difficulty or difference of opinion. Nor does it appear that this case is complicated by factors which would make it an inappropriate vehicle for the grant of special leave. None of this is to suggest that special leave will in fact be granted. That can only be determined upon fuller submissions than have been made to me this afternoon. But the application for special leave is clearly not hopeless and in my view there is a reasonable prospect that it will succeed.

I therefore propose to order that the applicant be admitted to bail, pending the determination of his application for special leave to appeal to this court, on the following conditions - the applicant is still resident with his parents at Freehans Road, Sunbury? Is that right, Mr Priest?

MR PRIEST: Yes, your Honour.

HIS HONOUR:

(1) that the applicant reside with his parents at Freehans Road, Sunbury;

(2) that the applicant report to the officer in charge at Sunbury Police Station every Tuesday, Thursday and Saturday between the hours of 9 am and 6 pm;

(3) that there be lodged with the Supreme Court of Victoria in such form as required by that Court the sum of $10,000 to secure his surrender in accordance with any order made by this Court on his application for special leave to appeal to this Court;

(4) that the sum of $10,000 be forfeited to the Crown if the applicant fails, without proper excuse, to comply with all the terms of this order;

(5) that the applicant surrender his passport and not apply for one;

(6) that the applicant not leave the State of Victoria;

(7) that on a date to be fixed by notice to him in writing by the Deputy Registrar of this Court as the date on which his application for special leave to appeal will be heard and determined, he surrender himself to the Sheriff of the Supreme Court of Melbourne upon the determination of the said application to serve any balance of his sentence then remaining unserved in accordance with a warrant of commitment pursuant to which he is confined at that time;

(8) that bail may be entered before the Sheriff of the Supreme Court of Victoria;

(9) that the time during which the appellant is on bail pursuant to this order not be taken into account in calculating the period of service of his sentence pursuant to the judgment of the Supreme Court of Victoria.

Now, do you wish to comment on that proposed order?

MR PRIEST: There is only one matter, your Honour. Where your Honour has used the expression "parents", his father is recently deceased and I wonder if mother could be transposed.

HIS HONOUR: Is that the only matter?

MR PRIEST: Yes.

HIS HONOUR: Mr Robinson?

MR ROBINSON: No, your Honour, there is no matter.

HIS HONOUR: Well, the first paragraph will be, in substitution for the one which I proposed, that the applicant reside with his mother at Freehans Road, Sunbury, and with that modification I will make the order.

MR PRIEST: If your Honour pleases.

MR ROBINSON: If the Court pleases.

HIS HONOUR: Anything else, gentlemen?

MR PRIEST: No, sir.

MR ROBINSON: No, your Honour.

AT 2.50 PM THE MATTER WAS ADJOURNED

INDEFINITELY