Parsons v The Queen M42/1998 [1998] HCATrans 498 (22 December 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M42 of 1998

B e t w e e n -

ROUMALD CHARLES PARSONS

Appellant

and

THE QUEEN

Respondent

Application for bail

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 22 DECEMBER 1998, AT 9.31 AM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court please, I appear for the appellant. (instructed by Allan McMonnies)

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

HIS HONOUR: Yes, Mr Wendler.

MR WENDLER: If the Court pleases.

HIS HONOUR: I have read, Mr Wendler, the affidavit of Mr McMonnies of 15 December.

MR WENDLER: Yes, thank you, your Honour. As your Honour knows, this is an application for bail pending the making of orders in relation to the appellant's appeal. As your Honour knows, judgment stands reserved from August of this year.

The appellant has completed three-quarters of the minimum term of imprisonment. If one assumes that he will not receive judgment this year, and that may be a fair assumption, then the earliest one might expect that he would be in possession of a judgment of this Court would be February at some stage. He is due to be released on 12 May of next year. So if he were to receive judgment in February and judgment is in his favour, he will have virtually completed all bar about three months of the minimum term.

On the last occasion before your Honour, my friend who appeared for the Victorian Director said to your Honour - and I am reading from the transcript which is the second annexure identified in paragraph 7 of the affidavit of the appellant's solicitor - on page 5 at about point 5 my friend told your Honour that:

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.

In other words, what my friend was at least insinuating was that if the appeal was successful, at a time soon after August, for instance, it would be unlikely that the appellant would be put up again, so to speak, having regard to the portion of the minimum term completed.

But at the end of the day, the reality of the situation is that once again the value of this appeal to him has diminished to such an extent that if he were successful, say, for example, in February of next year, the prospect would be that he would not be put up again, he would have served approximately 85 per cent of the minimum term.

Your Honour can well appreciate that it is very frustrating and destabilising for a man in custody waiting for the result of an appeal. It has been four months now, and he sees that the value of the appeal to him diminishes significantly the longer it takes the judgment to be pronounced in the matter.

That also raises legal questions concerning the jurisdiction of this Court - its constitutional jurisdiction to protect and preserve the subject matter which is the subject of the appeal. To the extent that it is being undermined by the diminution of the minimum term - and, indeed, the overall global sentence - it raises real questions as to whether or not justice is really seen to be done if a man is left in limbo, as it were, until a time where the minimum term has virtually been exhausted.

So even if, for instance, the Court would hand down judgment, say, later than February and that went against him, then I suppose that would be much ado about nothing, but at the moment he is in a position where he has no idea, and cannot ever know, when judgment is to be delivered. That is no criticism, of course, of the Court; that is just the fact of life that he is held hostage to.

HIS HONOUR: What then is the principle that you say I should apply that would lead to the grant of bail in these circumstances?

MR WENDLER: It is my respectful submission that the combination of the diminution of the value of the appeal to him and the fact that the Director has indicated on a previous occasion that if the appeal were successful the Director would be unlikely to present the appellant again in relation to these matters, it is my respectful submission that at this stage, in order to preserve the jurisdiction of the Court over the subject matter, it is appropriate, in my respectful submission, that bail should be granted.

The subjective circumstances are set out in the affidavit and I am not going to discuss any of those other than to say that he is not a threat in any way whatsoever in relation to bail and I would not expect my friend to make a submission contrary to that. He is classed as a C2 prisoner now, your Honour. That means he is the lowest security risk, as it were.

HIS HONOUR: He is at Wron Wron, is he not?

MR WENDLER: Yes, the lowest security risk prisoner at the moment. But that, of course, is not a fact that would move your Honour to grant him bail. It is an unusual situation. Your Honour in fact said to him, through me, on the last occasion that it was always open to the appellant to return to this Court at the end of the appeal if, for instance, the Court were of the view that the appeal should be allowed. But one does not know one way or the other whether the appeal will be allowed and there is no way of knowing whether the appeal would be allowed. All we know today is that the minimum term has virtually been exhausted and it may well be that he will be released before judgment has been handed down.

Now, if, of course, the appeal is dismissed, it is much ado about nothing. But if it were allowed, he will have, in effect, served all of the minimum term of imprisonment in circumstances where the Director has already indicated, your Honour, he would not be put up again in relation to another offence, more appropriately identified, if it is eventually found that the convictions cannot stand or there is considerable doubt concerning the legal integrity of the convictions, either all of them or some of them. My memory of the way the argument developed before the Full Court was that there was some discussion as to whether some of the convictions may be attended with some doubt, as opposed to others. Your Honour will recall that the argument drifted in that area. What will be the result of that, well, no one knows.

So, your Honour, it is my respectful submission that, having regard to the circumstances or history of the matter, and the fact that on the one hand no indication can be given to a man who is obviously frustrated in custody, wants to know what the result of all this is going to be and no one can tell him, the as it were half-way house situation, in my respectful submission, is that he should be granted bail and the matter will resolve itself thereafter.

But the jurisdiction of the Court is not effectively protected, in my respectful submission, if we are left with a situation where the minimum term has virtually been exhausted and he is not in a position to know what exactly the result of his appeal will be. So that is really as high as I can put it, your Honour. If the Court pleases.

HIS HONOUR: Thank you, Mr Wendler. Mr Coghlan.

MR COGHLAN: Your Honour, the application is opposed in circumstances where the exceptional circumstances necessary for a grant of bail in a case of this kind has not been demonstrated.

Your Honour, the concession that I made on the earlier occasion as a matter of practicality is not to the point. The Crown has, and did in the Court of Appeal, defend the sentence. The sentence has been accepted by the Court of Appeal at least as being a proper sentence in the circumstances of the case. The fact that if the applicant succeeded that the Director, as a matter of practicality and considering the use of public funds, might make a decision not to proceed further is, in my submission, really to hold nothing out to the applicant at all from which he should think that he has very much to gain. There is no reason to believe that, if the end of his sentence comes about before the decision is announced on the appeal, anything other than that he would be released in the ordinary way, having served the sentence.

Given that the Crown has always taken the view that there were alternative charges which were appropriate, come what may, the only matter from which the applicant seems to seek to gain solace is simply those matters that I made by way of observation on the last occasion. It seems, and it is submitted, that it would be less satisfactory that, if the applicant were now to be granted bail and his appeal failed, there would be no option but for him to be returned to serve the balance of his sentence which, it is submitted, would be unsatisfactory in circumstances such as those. It is not for the Director to make any concession about that matter. That is a matter that would operate simply as a matter of law.

They are the matters I would seek to put.

HIS HONOUR: Thank you, Mr Coghlan. Mr Wendler, do you wish to add anything?

MR WENDLER: No, I do not, your Honour.

HIS HONOUR: Thank you, Mr Wendler.

On 5 May 1997, the applicant was presented in the County Court of Victoria on a number of counts of obtaining property by deception contrary to section 81 of the Crimes Act 1958 (Vic). He pleaded guilty and, on 24 June 1997, he was sentenced to a total effective term of 2 years and 8 months imprisonment and a non-parole period of 2 years was fixed.

The applicant appealed to the Court of Appeal of Victoria against both conviction and sentence. He appealed against conviction notwithstanding his pleas of guilty on the ground that, in effect, the admitted facts did not reveal commission of the offence charged. The Court of Appeal dismissed that appeal.

The applicant applied for special leave to appeal to this Court and leave was granted. His appeal came on for hearing on 12 and 13 August 1998 and judgment was then reserved.

The applicant remains in custody. It was submitted on his behalf that he should now be admitted to bail because were judgment on the appeal not to be delivered until February 1999 the applicant would then have completed all but about three months of the minimum term of imprisonment that was imposed upon him. It was submitted that the longer time goes on the more the value to the applicant of his appeal is diminished. It was submitted that in these circumstances the jurisdiction of the Court which has earlier been described as an exceptional jurisdiction, see Chamberlain v The Queen [1983] HCA 13; (1983) 153 CLR 514, should be exercised in his favour lest the subject matter of the appeal be undermined or totally extinguished.

The principles that govern disposition of applications for bail pending application for leave to appeal to this Court or pending the hearing and determination of appeal to this Court are well known. It is sufficient for present purposes to refer in these regards to Chamberlain's Case and Robinson v The Queen (1991) 65 ALJR 519. An application of the present kind is, at least in my experience, very unusual and it may be said that in those circumstances the principles that are to be applied are less obviously stated. Nevertheless, I think it clear that the position of the applicant, when his appeal has been heard but not yet determined, cannot be significantly stronger than his position pending the appeal coming on for hearing.

In my opinion, no ground is demonstrated on which a grant of bail should now be made. The circumstances that confront the applicant are not of a kind that would warrant the exercise of the jurisdiction to admit him to bail pending publication of the Court's orders or its reason for decision.

There was reference in the course of argument to an exchange that took place when the applicant last applied for bail in the course of which counsel for the Director referred to whether, if the convictions were quashed, the Director would, or might, exercise his powers to re-present the appellant on charges other than those to which he originally pleaded guilty.

In my opinion, the statement of possible intention then made on behalf of the Director is not relevant in any respect to the immediate question that now arises. That question is whether there is reason shown for admitting the appellant to bail where his conviction presently stands unaffected and the sentence of the court passed upon him presently stands unaffected and unchallenged.

In my opinion, no such reason is demonstrated. The application for bail is refused.

The order is: application dismissed.

I will certify for the attendance of counsel.

Is there any other matter counsel desire to raise? Thank you. I will adjourn.

AT 9.52 AM THE MATTER WAS CONCLUDED