Parsons v The Queen M42/1998 [1998] HCATrans 211 (5 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M42 of 1998

ROUMALD CHARLES PARSONS

Applicant

THE QUEEN

Respondent

Application for bail

HAYNE J (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 JUNE 1998, AT 11.15 AM

Copyright in the High Court of Australia

HIS HONOUR: Mr Wendler, you are for the applicant?

MR G.D. WENDLER: The appellant, I think, in this case, yes, if the Court pleases. (instructed by Allan McMonnies)

HIS HONOUR: The appellant, yes, indeed. Mr Coghlan?

MR P.A. COGHLAN QC: If the Court pleases, I appear with my learned friend Mr R.A. ELSTON for the respondent. (instructed by P.Wood, Solicitor for Public Prosecutions (Victoria))

MR WENDLER: Your Honour, the - - -

HIS HONOUR: Before you begin, Mr Wendler, I understand that it is likely that the appeal will be brought on in the Adelaide sittings of the Court which are to occur in the week commencing 19 August.

MR WENDLER: I was not aware of that, with respect, your Honour.

HIS HONOUR: No, and that is why I have simply informed you of it. That is the best information I have and indeed I am told that that is the likelihood.

MR WENDLER: I see. As your Honour can appreciate, the information that we had or my instructing solicitor had was that possibly October or November in Canberra, so I can disregard that. I appreciate that, your Honour. Approaching the application with that indication from your Honour, it would still mean that the appellant would have completed approximately one year and about four months of the minimum term.

HIS HONOUR: He has done what now, one and about a week or two, has he not?

MR WENDLER: One year and a fortnight approximately, and taking it to August and building in the fact that a judgment may be reserved, it may well be that he will have completed close to a year and a half of the minimum term on a worst - - -

HIS HONOUR: But you no doubt could move the Court again at the end of the appeal, could you not, if the Court were of a clear view, for example, that the appeal should be allowed, then it would not be uncommon for the decision to be announced, reasons to follow?

MR WENDLER: I could, but our real concern is that it diminishes the value of the appeal to him if his minimum term has almost been completed. It is really the focus on the value of the appeal and how that can - - -

HIS HONOUR: It is a curiosity, is it not, Mr Wendler, that this man pleaded guilty and the point emerges only in the context of appeal but no doubt I should entirely shut those matters from my mind and leave it - - -

MR WENDLER: It is an unusual matter, your Honour. What occurred was that after he had pleaded guilty, there was consideration of whether or not those pleas of guilty could in law be supported by the factual circumstances underpinning the plea.

HIS HONOUR: The question being whether a cheque is relevantly property. It will upset a lot of law in this state if they are not, but there we are.

MR WENDLER: Well, your Honour, the Court of Appeal approached the situation by in effect distinguishing out of existence Lord Gough's speech in R v Preddy. He was given special leave to appeal. In fact I was not called on, the respondent was called on, so it is not a frivolous point.

HIS HONOUR: No, the man has got leave. He is an appellant.

MR WENDLER: Yes. It is an important point and my focus essentially is upon those areas of the Court in the judgment of the Court of Appeal where it is held, for instance, that a cheque is in the nature of a valuable security. Now, that to a certain extent undermines the entire law of what the law has always considered to be a valuable security, the essence being it secures or something is an interest in something like a mortgage or a bill of sale. But to say that - - -

HIS HONOUR: But do I not have to approach the present application on the footing that the man, having obtained leave, has a point that is plainly arguable?

MR WENDLER: Quite.

HIS HONOUR: The question then becomes a point of futility, does it not?

MR WENDLER: That is right, and the value to him of the appeal. I mean, if he gets on in August - let us assume that he is going to get on in August - and the Court reserves its judgment a couple of months, three months, the value to him of the appeal - in circumstances where the order would be to quash the convictions if they are not correct in law - is significantly diminished if he has completed almost five-eighths of the sentence. That is my concern and in a sense, he is held hostage by the appeal process. He was not delinquent in getting his application for special leave on as quickly as he could and proceeded to resolve that process and then, following that, he of course has not been delinquent so far as the expedition of the appeal is concerned and I can indicate to your Honour that his solicitor will have everything in place ready for the appeal to proceed in August. So to the extent that it diminishes the value of the appeal to him in relation to the extent of the custody, it is my respectful submission it is a serious application for bail.

Having regard also to the judgment of the Court of Appeal which in effect has made findings which are attended with some doubt. For instance, the holding that a cheque is a valuable security is quite contrary, in my respectful submission, and ignores the legal effect of the Cheque and Payment Orders Act, section 88 of that section, which specifically mirrors the common law position. If you look at section 88, it says:

The drawing of a cheque does not of itself operate an assignment of funds that are available in the hands of the drawee bank for the payment of the cheque.

I mean, to describe it as a valuable security ignores the codified common law in the Cheque and Payment Orders Act. They are radical findings almost in respect of the way that the Court of Appeal resolve the appeal before it.

Really the whole problem with this of course is the statutory language in section 81 of the Victorian Crimes Act which uses the expression "property belonging to another". Now, the statutory language is identical to section 15(1) of the English Theft Act and that is how it arose and Preddy, because some of the transactions in Preddy involved cheques, Lord Gough in his speech had to address the legal situation when there was deception in those circumstances involving cheques, so there is a head-on collision.

HIS HONOUR: I had not thought that Winneke P said that all that was said by his Lordship about cheques was in truth obiter, there being no cheque transaction that arose. But again do I need to embark on these things? Must I not begin from the premise that this man has a clearly arguable case?

MR WENDLER: Yes. Just to finish off, with the greatest respect to the president, that is not correct. There were some transactions - and it is clear in the report - that were made by cheque. It is not an obiter remark. It went to the gravamen of the decision because some of the payments were made by cheque and that is obvious from the judgment.

So if I can just return to the fact first that he has an arguable case; it is not a case which one could readily say that the Court would dismiss the appeal outright. By not granting the appellant bail, it diminishes the value of the appeal to him to a significant extent because he will have completed, as I say, at least two-thirds of the sentence in relation to this matter. Once again, why should a person sit in custody for an extra six months and have an appeal allowed at the end of all that which - and the order being at the end of the day that the convictions ought to have been quashed because the factual circumstances did not support the charge? That is an extraordinary thing. A man pleads guilty to a set of facts which in law cannot be supported. I mean, that is a tremendous miscarriage of justice. It is up the Director of Public Prosecution in the state of Victoria what it does if in fact he is successful. It is not a matter for your Honour and your Honour does not have to concern yourself with it.

HIS HONOUR: Yes.

MR WENDLER: So if the Court pleases, my real focus is on the value of this appeal to this appellant who has clearly an arguable case, raising important questions of law, not only in relation to the law of property offences but to the commercial law. There is some significant doubt in the findings of the Full Court of Victoria in relation to the way it handled the legal criminal responsibility in relation to section 81(1) of the Crimes Act. So if the Court pleases, having regard to that fact and the other matters identified in the affidavit of his solicitor, that he has always answered bail, there is no history of delinquency, the state of Victoria can feel fully protected by a grant of bail, that he would answer that bail and obey all directions concerning such a bail agreement if it were to be offered to him. That is really all I can usefully put.

HIS HONOUR: Yes, thank you, Mr Wendler. Mr Coghlan?

MR COGHLAN: The application is opposed, your Honour, on the basis that exceptional circumstances which must be shown for a grant of bail, even by an appellant, has not been made out. If I might draw the Court's attention to what was said in Robinson's case, and if I could hand them up to your Honour because I had not had an opportunity under the circumstances to put in a list of authorities. Gaudron J was dealing with a case, in fact in its terms perhaps even slightly more pressing than the present case, but the portion of that case which is said to be particularly important for present purposes is in the right-hand column on page 519. The first full paragraph beginning in that column:

Since the introduction of the new procedures with respect to the grant of special leave to appeal in criminal cases, it may be that the considerations to be taken into account by this Court are not quite as restricted as they were in the case of applications pending the grant of special leave to appeal. However, I do not understand it to have been contended by or on behalf of the applicant that the grant of special leave in itself is a special circumstance and, if it had been so contended, it would not, in my view, be such a circumstance.

It is submitted in reality that the matter that really most strongly presses upon your Honour is in fact that grant of special leave. The fact of a serving of a little over half of a minimum term where someone had pleaded guilty, where at least one of the arguments that arises on the question of special leave is not the question of whether any crime has been committed per se but whether or not obtaining property by deception as such is the appropriate offence to describe - in this case, a plea of guilty - the admitted conduct. So one of the issues to be decided would be whether or not in fact it was simply more appropriate to have charged obtaining financial advantage by deception or some other offence within the section.

As the matter presently stands, I think it is clear that if the matter proceeds in the way that it now appears that it might proceed to August and a decision given thereafter, irrespective of the result of the appeal, I think it is most unlikely that the director would continue with the matter because the appellant would find himself in the position of having served so much portion of the minimum that it would seem unjust then to proceed. However, as the matter is presently left, I think he would have to be told that if he got bail now, the director would have to reconsider whether or not there were offences with which he would proceed as to the mere practicality of the matter.

HIS HONOUR: Those are matters that seem to me, if I may say so, Mr Coghlan, to be addressed more to your right than to your front.

MR COGHLAN: Well, in part, your Honour, yes, although they are considerations it is submitted that do - it was really being put by my friend that the time is wasted time. What is being put on behalf of the respondent is it is not wasted time because of the nature of the appeal in any event as the strongest issue and then simply trying to have some practical regard to the future progress of the matter. But I press that more in relation to the fact that it seemed to be being put by my friend that it is wasted time. It is not conceded that the nature of this appeal is such that that is so because there may be alternative offences and it is really put more on that basis - - -

HIS HONOUR: I understand that. There is another aspect of it, Mr Coghlan, that perhaps I should more properly raise with Mr Wendler and that is, I can hear Callaway J more than once in the Court of Appeal inviting the attention of counsel not to the minimum term but to the maximum term. The relevant consideration may be the head sentence and whether a significant portion of the head sentence has been served rather than whether a significant portion of the minimum, given that it is the head sentence that is the more significant.

MR COGHLAN: The Court had been referred to Chew v the Queen in my learned friend's list of authorities. If some situation were to arise where, for instance, a much higher percentage of the minimum was served or there appeared to be some difficulty about not getting parole, for instance, because the appeal was outstanding, I think my friend can take solace from the point of view that the director, I think, would take a quite different view of the matter. But at the stage where about half of the minimum with a maximum term of - - -

HIS HONOUR: It is two - eight and two, is it not?

MR COGHLAN: - - - of two years and eight months is concerned, it is submitted that it is on at least the authority of Robinson's case not capable of itself of giving rise to an exceptional circumstance but it is submitted it certainly does not in the present case. They are the matters that I wanted - - -

HIS HONOUR: Yes, thank you, Mr Coghlan. Mr Wendler?

MR WENDLER: Your Honour, so far as the additional term which is eight months, there is every expectation that he would be paroled - the appellant already having been classified as a C1 prisoner - there is every expectation that at the expiration of the minimum term, he would be paroled.

HIS HONOUR: I understand the point, yes.

MR WENDLER: But even taking into account the global sentence, as it were, he would have still served certainly over half of that, slightly over half of that, when this process has been completely exhausted.

HIS HONOUR: Yes, thank you. The appellant was presented in the County Court of Victoria on 5 May 1997 on a presentment charging a number of counts of obtaining property by deception contrary to section 81 of the Crimes Act 1958. He pleaded guilty. On 24 June 1997 he was sentenced to a total effective term of two years and eight months and a non-parole period of two years was fixed. By the end of May of this year he had then served about one year and two weeks of that term of imprisonment. The appellant appealed to the Court of Appeal against both conviction and sentence. He appealed against conviction notwithstanding his pleas of guilty, in effect on the ground that the admitted facts did not reveal commission of the offence charged. The Court of Appeal dismissed that appeal.

The appellant applied for special leave to appeal to this Court and on 19 May 1998 special leave was granted. It is likely that the appeal will come on for hearing in the Adelaide sittings of the Court commencing on 10 August this year. The appellant now applies for bail pending the hearing and determination of his appeal. The principal contention advanced in support of the application for bail is that unless he is admitted to bail, he will have served such a significant proportion of the minimum sentence imposed upon him that the value of the appeal to him will, if not vanish, be at least significantly reduced.

Special leave to appeal having been granted, the appellant stands in a stronger position than does an applicant for special leave. For present purposes, I proceed on the assumption that the appellant has a clearly arguable case to challenge the convictions that were entered in his case. Nevertheless, in my view, it is clear that the inherent jurisdiction of the Court to serve the ends of justice and perfect the administration of justice, including as it does the power to grant bail, is a jurisdiction that is to be exercised only in exceptional circumstances. In Robinson v the Queen (1991) 65 ALJR 519 Gaudron J said:

Since the introduction of new procedures with respect to the grant of special leave to appeal in criminal cases, it may be that the considerations to be taken into account by this Court are not quite as restricted as they were in the case of applications pending the grant of special leave to appeal. However, I do not understand it to have been contended by on behalf of the applicant that the grant of special leave in itself is a special circumstance and, if it had been so contended, it would not, in my view, be such a circumstance.

Her Honour went on to say that:

Because the jurisdiction which is invoked is that which is inherent and which exists to serve the ends of justice and to perfect the administration of justice, the circumstances which might properly be described as exceptional and sufficiently exceptional as to justify the grant of bail pending appeal must, in my view, relate to the proceedings to be conducted and their relationship with the sentence being served.

In this case, it is plain that a significant portion of the non-parole period imposed on this applicant will have been served by the time the appeal comes on for hearing and, if judgment in the appeal is reserved, still further time may elapse before the appeal is disposed of. Nevertheless, there would remain the balance of the sentence, namely the head sentence that was imposed on him, which would still require service, albeit if he remains of good behaviour, most likely service at liberty.

In my view, exceptional circumstances are not demonstrated by the facts that I have described. I accept for the purposes of the present argument that the applicant would be a good risk if admitted to bail but that is a question which would need to be addressed only if exceptional circumstances otherwise had been demonstrated. In my view, there is no question said to arise as to the need for liberty pending appeal so as to prepare the appeal. All that is urged is that time will elapse. In those circumstances I am of the view that the application should be refused. The application will be dismissed. I will certify for the attendance of counsel. Is there any other matter? Very well. I will adjourn.

MATTER ADJOURNED AT 11.44 AM