Doggett v The Queen B54/2000 [2000] HCATrans 661 (31 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B54 of 2000

B e t w e e n -

GRAHAM HENRY DOGGETT

Applicant

and

THE QUEEN

Respondent

Bail application

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 31 OCTOBER 2000, AT 12.02 PM

Copyright in the High Court of Australia

MR A.J. RAFTER: May it please your Honour, I appear for the applicant. (instructed by Dearden Lawyers)

MR N.V. WESTON: May it please your Honour, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

HIS HONOUR: Mr Rafter, the applicant's evidence, some of it is on information and belief, for example, the wife's affidavit.

MR RAFTER: That is right.

HIS HONOUR: There is no objection to that?

MR WESTON: No, there is not, your Honour.

MR RAFTER: I specifically canvassed that with my learned friend. The reason for that related to the fact the application had to be prepared quickly.

HIS HONOUR: Well, you do not have a problem, there is no objection taken to it. I have read the material.

MR RAFTER: Thank you. Including the further affidavit of Ian Francis Macrae Dearden, filed yesterday, 30 October?

HIS HONOUR: I do not know whether I have read that. I had better check. I have not read it. Just give me a moment to read that.

MR RAFTER: It exhibits the written submissions on special leave application because the initial affidavit incorrectly exhibited the Court of Appeal outlines. The point of exhibiting the outlines - - -

HIS HONOUR: Yes, I think I picked that up. I read the transcript also of the special leave application.

MR RAFTER: The point really being to demonstrate that there is an arguable point in the case.

HIS HONOUR: Well, you have that. You would not have special leave and the arguable point is the Longman direction, is it not, which is the only ground of appeal?

MR RAFTER: That is right. Your Honour, the Crown relies upon Justice Hayne's decision in Parsons v The Queen (1999) 72 ALJR 1325. That is attached to my learned friend's written submissions which were filed yesterday.

HIS HONOUR: I think I have read Justice Hayne's decision, but does anybody have a copy of it? I just do not have it in Court at the moment.

MR WESTON: I can hand up a copy, your Honour.

HIS HONOUR: These cases are difficult, Mr Rafter, in one sense. There have been two hearings and I feel very much constrained not to form a view, and certainly not to express a view about prospects. Yet the authorities suggest that, understandably, that is a material matter.

MR RAFTER: Your Honour, the proposition which the Crown relies upon from Parsons, which is accepted by the applicant anyway, is that there should be some exceptional circumstances established but - - -

HIS HONOUR: And I said that in Bull and Marotta.

MR RAFTER: Your Honour said that as well. But I was going to indicate the actual refusal of bail in Parsons does not assist the Crown very much here because it was a very different case. Can I point out some of the features of it that are very different to this one. The first one is that it was an appeal against conviction and sentence to the Court of Appeal following upon pleas of guilty to the charges, and it would be very difficult, indeed, to secure special leave and to overturn convictions after a plea of guilty, although, Parsons obviously secured special leave, but the appeal ultimately failed, but also importantly is the fact that special leave had been granted on 19 May 1998 and the likely hearing date was in the Adelaide sittings of the Court commencing on 10 August the same year. In fact, the appeal was heard in the Adelaide sittings, so the time range - - -

HIS HONOUR: Just excuse me one moment, Mr Rafter. Yes, you go ahead, Mr Rafter.

MR RAFTER: As I said, the appeal was, in fact, heard on 12 and 13 August in Parsons and the judgment was reserved. I perhaps should indicate there was a further bail application made before Justice Hayne in December following upon the fact that the decision was still reserved. That decision was reported as Parsons [No 2] (1998) 73 ALJR 279. I have a copy of that if your Honour would like to look at it, but it does not really establish anything that is different to the propositions in the first case or, indeed, in your Honour's decision in Marotta and Others.

The likely period between grant of special leave in the instant case, special leave having been granted on 21 June this year, and the hearing of the appeal itself, which at this stage appears to be in February 2001, is something in the order of almost eight months.

HIS HONOUR: Have you been told you will get on in February?

MR RAFTER: It is not actually listed then. If I may say so, the applicant has been deferring bringing a bail application in this case because of predictions that he might be heard in the October sittings, then in the November sittings, and then in the December sittings, but it now seems reasonably clear the appeal will not be on this year. The first sittings next year are in February. It seems likely the appeal will be on then, but one can never actually tell. Marotta, perhaps, is an illustration of that. The appeal itself came on much later than was predicted at the time your Honour granted bail. That might be - - -

HIS HONOUR: I suppose it became much less urgent to get it on once I gave bail.

MR RAFTER: Well, exactly. It is hard to know whether it was because the urgency went out of the case or whether the other more pressing matters went ahead of it.

HIS HONOUR: But they ultimately succeeded.

MR RAFTER: And they did ultimately succeed, of course. I am not suggesting that the features listed by your Honour in Marotta should be used as some form of check list - - -

HIS HONOUR: Mr Rafter, there seems to be a real disposition - I mean, there is a real judicial disposition about granting bail. The appellate stage second - certainly at the second appellate stage. Chief Justice Brennan spoke in terms of "falsify in a jury verdict" in one of the cases, or perhaps two of them. With respect, I do not think that is so and I said as much in Bull and Marotta, that it does not do that at all because decisions are reversed, usually not because of anything that the jury does. The unsafe and unsatisfactory ground usually is a fairly unpromising ground so, with due respect to his Honour, I do not accept that it affects in any way at all a jury verdict. It merely means that an appellate court is prepared to review the matter and people have a right of review. Look, it is a matter of great concern to me that people may be locked up who ultimately are found to be not guilty. I do not think that that result serves society at all.

But having said all of that, the very strong judicial disposition, worked out over a long time and in cases that far precede me, take a contrary view. I mean, judicial disposition is not to grant it, and I very much hesitate - I am being absolutely frank with you - to go against that body of wisdom which has fairly consistently expressed the view that I have just put to you.

MR RAFTER: I am not suggesting your Honour would need to overturn earlier decisions. It is a discretionary matter and it is a discretion that is exercised, albeit only rarely, and Chamberlain is an instance of that, and your Honour referred to Justice Toohey's decision in Chew, which is another example. So, although it is rare, it does happen, and I was going to suggest that although Marotta should not perhaps be used, the reasons your Honour gave in that case perhaps ought not be used as a check list so that if one finds 10 out of 12 features that are identical, you must get bail, but the similarities here are quite significant, I would submit. This is perhaps a stronger case for bail, given the much shorter length of sentence involved.

HIS HONOUR: I have to say to you, Mr Rafter, that I thought that Bull and Marotta actually had a very, very strong evidence point and that turned out to be right. Yours is somewhat different. What was the last case we had on a Longman direction?

MR RAFTER: That was Robinson.

HIS HONOUR: Robinson. I think I sat on that.

MR RAFTER: Your Honour was a member of the Court and that appeal was allowed.

HIS HONOUR: You have the admissions to contend with here, have you not? I have read the transcript of the telephone call.

MR RAFTER: That is true. The admissions, as I argued before the Court on the special leave hearing, were of a general nature, not specific to the particular offences. The submission that I advanced on the special leave hearing was that, consistent with other authorities of the Court where an important component of the Crown case falls into the carefully scrutinised category, as the evidence of the complainant did here because of the lengthy delay in making complaint, it is a mistake to say a Longman direction is to be dispensed with simply because there is corroborative evidence, even if it is seen as being compelling. One of the reasons for the Longman warning to be given is because of the difficulty a defendant has in meeting old allegations and adequately testing it.

HIS HONOUR: I understand all of that. It is really a matter for the jury whether your client's own remarks in that telephone conversation were inculpatory or not. Obviously, that was decided against your client.

MR RAFTER: Well, possibly. One does not know exactly how the jury approached its task, but that is one possibility.

HIS HONOUR: What are the exceptional factors, you say, here?

MR RAFTER: Can I go to the list of matters that was said to justify bail in Marotta in your Honour's decision in 73 ALJR at 265. At page 267, paragraph 18, in the first column - - -

HIS HONOUR: But what are they here, Mr Rafter? I mean, I am familiar with what I said - - -

MR RAFTER: Sure. I was really going to attempt to present my argument by reference to - - -

HIS HONOUR: You were going to give me a check list that you said we should not - I do not have any problem with a check list. I think a multiplicity of factors that are relevant in one case, if they reappear in another, of course they are relevant. But just tell me what are the - - -

MR RAFTER: First is that special leave has, in fact, been granted. I know that alone it does not mean that bail ought to be granted.

HIS HONOUR: But still I spoke of the statistical improbability of getting that. It is something - - -

MR RAFTER: It is a relevant factor and that is consistent with what Justice Toohey said in Chew. Your Honour referred to that at paragraph 12 on the previous page. So that is the first matter. Secondly, the case does raise an arguable point. Your Honour was careful in Marotta, of course, to say that without seeking to pre-judge the cases, your Honour was of the view that an arguable point was raised by the case - - -

HIS HONOUR: Well, you do not get special leave - it is really one and the same thing, you do not get special leave unless you have it.

MR RAFTER: I suppose that is true. Can I perhaps, on this topic though - because a tape-recorded conversation obviously provided a hurdle to the applicant at his trial, and the same may apply here at this level - if I can take your Honour just very quickly to the judgment of the Court of Appeal.

HIS HONOUR: I have read that.

MR RAFTER: Just to indicate in Justice Pincus' judgment at page 4, paragraph [14], his Honour said that:

Longman is authority for at least two propositions -

and his Honour stated them. I will not read those out. But his Honour then went on in the final sentence to say:

But it is arguable that Longman goes further than the second proposition just stated and requires a warning against acceptance of the complainant's evidence, in such a case, whether or not and no matter how strongly the evidence is corroborated; the discussion -

from Longman -

at p 91 could support that third proposition.

Of course, his Honour went on and the Court unanimously rejected the applicant's appeal for the reasons that are summarised at paragraph [22]. But that particular passage I took your Honour to indicates the argument being advanced for the applicant is at least an arguable one. Further, if one goes to the transcript of the special leave hearing before Justices Gaudron and Gummow on 21 June - - -

HIS HONOUR: I have read that. Look, I accept you have an arguable point. You really do not get special leave unless you have it.

MR RAFTER: Well, the third feature: the applicant had bail pending the trial and, in fact, during the course of the trial. Mr Dearden, in his first affidavit, refers to that at paragraph 7(d). The next aspect is that substantial parts of the custodial sentence is likely to be served before the appeal is actually heard. The head sentence is four and a half years; parole eligibility arises on 1 September 2001. Going back to Bull and Marotta, the sentences range between six and eight years in that case, and in Bull's Case, his parole eligibility date did not arise until October 2000, and he was given bail by order of the Court in December 1998. So I am simply indicating that there is a substantial time period there.

HIS HONOUR: Yes, but there was one of those in Bull and Marotta who was eligible for parole almost immediately, I think, and it would have been very difficult to treat them differently.

MR RAFTER: Well, that may be true.

HIS HONOUR: I think one only had a couple of months to go, did he not?

MR RAFTER: One had been eligible for parole in July 1999. I think that was King who got the six-year sentence, and Marotta was eligible for parole in March 2000, and Bull in October 2000.

HIS HONOUR: I think one - am I right; was it only a couple of months?

MR RAFTER: I think King was eligible for work release in January 1999. He was doing the shortest sentence. So, from the time your Honour granted bail in December 1998 to a period when he would have been eligible for work release was probably just a month or so.

HIS HONOUR: That is right.

MR RAFTER: Now, that is not too dissimilar to the present situation. The applicant here is eligible for work release according to the exhibit to Mr Dearden's affidavit in about a month's time on 30 November. The fifth matter listed in Marotta really dealt with all of the applicants jointly; I do not need to refer to that here. But, the sixth point is true of this case, that if the appeal is ultimately successful and there is an acquittal at any retrial that might be ordered, then the benefit of such acquittal would be, if not a hollow victory, then the significance of that, or at least the benefit of that, or the value to the applicant largely diminished. Your Honour indicated that, point 7, "The appeals would not be heard for some months yet". The same applies here.

HIS HONOUR: Well, you would have to allow time for a decision to be reserved too, of course.

MR RAFTER: That is right, if it is indeed reserved. So, it may be longer than simply February. There was a concession by the Crown at point 8 with respect to the wrongful admission of some evidence in that case. Whether that is a decisive matter on the question of bail is a difficult question, the Crown having made the concession and said that it would not affect the correctness of the Court of Criminal Appeals decision.

HIS HONOUR: One of your problems here is that your client was represented by very experienced counsel - it was Mr Mulholland, was it not?

MR RAFTER: Yes.

HIS HONOUR: And no point was taken in relation to the summing up.

MR RAFTER: That is true, but the failure to - - -

HIS HONOUR: I know it is not fatal, but you cannot just dismiss it because it may give some insight into what was regarded at the trial as being important and what was not, and that in turn might have a very heavy bearing upon the proviso, even if the High Court were to hold that a Longman direction should have been given.

MR RAFTER: Yes, although this Court in recent years has examined a number of cases - - -

HIS HONOUR: I know, we have said some very strong things about the proviso, I understand that. The Court has also said some quite strong things about counsel, what counsel has or has not done.

MR RAFTER: In the end that is not necessarily decisive. For instance, in KBT where the Court of Appeal in Queensland had relied, at least partially, on counsel's failure at the trial - experienced counsel at the trial - not taking the relevant objection to the summing up, this Court said if the directions are required then they ought to be given whether counsel has asked for the direction or not. Your Honour is quite right, it can be a factor, but it is not necessarily decisive.

HIS HONOUR: It is a factor that really may have a double significance. I mean, one is the obvious significance: it was not asked for and that people should not be given a retrial. The other significance, and perhaps a more important significance, is that it may shed light upon the way the case was conducted. You know yourself that sometimes you do not want to risk a redirection under any circumstances.

MR RAFTER: Sometimes it is possible to discern a particular tactical reason that - - -

HIS HONOUR: I must say, no particular tactic or reason struck me but, as they say, you have to be there.

MR RAFTER: True, but given the nature of the directions that are contended should have been given, it would be no sting in the tail for the applicant, one would think. Indeed, a redirection would only be positively helpful, one would think. After the jury has retired for a short time to come back and be given a Longman warning would only help the applicant, one would think, at any trial. All I am trying to indicate is even experienced counsel can overlook things, and the most likely explanation for the non-seeking of the direction here is that experienced counsel and the trial judge overlooked the Longman requirements.

HIS HONOUR: Sometimes counsel think that they can put things better than the judge. You know what I mean? There is no transcript of what Mr Mulholland said. He might have thought that he could put questions of the long delay and other problems about the complainant's evidence much better than the judge could and it would be better not to have any further judicial comment at all. I mean, that is just one way in which the decisions may be influenced by counsel.

MR RAFTER: I accept that, although generally speaking, counsels' arguments are at a lower level than directions that carry the force of the judge's office. Domican and other cases have emphasised that in recent years. My simple point is that, on a reading of the trial and what happened, the most likely scenario is that counsel simply - experienced as he is, most likely overlooked asking for a Longman warning because no tactical or other reason really emerges that would justify not asking for one.

HIS HONOUR: Except the one I put to you. He might have thought he put it much more eloquently and, indeed, he may have done.

MR RAFTER: I am sure he would have emphasised those points favourable to the applicant in a very convincing fashion. But when it comes down to it, from the jury's point of view, they were simply counsel's arguments and one is ordinarily better off with directions that carry the force of the judge's office, even if they are not quite as articulate as the particular counsel.

HIS HONOUR: Who was the trial judge?

MR RAFTER: It was Judge Britton on the District Court in Gladstone.

HIS HONOUR: Yes, that is right, I read it. Was it tried in Rockhampton, was it?

MR RAFTER: The trial was in Gladstone, although Justice Britton sits in Rockhampton. Your Honour, here there is no dissenting judgment as was in Marotta, but there is at least the point I referred to earlier from Justice Pincus' judgment saying that Longman may have wider implication than ultimately the Court found in recognising the fact the point is arguable, I suppose I am really going back to the point your Honour has already accepted.

Furthermore, there is no suggestion that this applicant would abscond or commit further offences while on bail. The Crown is not suggesting that. Finally, your Honour said it was not inappropriate to look at the custodial and non-custodial aspects of the case. So, even if this applicant is released as he is eligible for in about a month - and there is no certainty that that will happen - there is still onerous obligations on him during the period that he is awaiting the determination of his appeal.

HIS HONOUR: It may be more a matter for Mr Weston, but does the Sentencing Act talk about work release? Do not worry, I will ask Mr Weston about that.

MR RAFTER: Well, the Penalties and Sentences Act does not deal with work release; it is a matter governed by the Corrective Services regulations, your Honour. But the eligibility dates are contained in that document exhibited to Mr Dearden's affidavit.

HIS HONOUR: Yes. You say that is 30 November?

MR RAFTER: That is right. He may or may not get that and, of course, work release - - -

HIS HONOUR: He has a job, has he not? Is that right? The material disclosed that he can get a job.

MR RAFTER: Yes, he has a job.

HIS HONOUR: What is that job as?

MR RAFTER: It is paragraph 7(c) of Mr Dearden's affidavit at page 3. It is with a particular company, Meanderlyn Pty Ltd, but I am not aware of the precise details of the job. Exhibit 8 to that affidavit indicates the nature of the work. It is project managing the implementation of welding systems for a particular project. There is a letter there from Mr Lane dated 20 October.

HIS HONOUR: He is married. He is remarried. It is not the complainant's mother, of course - - -

MR RAFTER: That is right, he has remarried. He owns the property in which he would reside. He would be living there with his wife.

HIS HONOUR: Does he have any children by that marriage?

MR RAFTER: No, there are no children by that marriage, but there are children of the wife's prior relationship.

HIS HONOUR: How old is your client?

MR RAFTER: The wife is 52. He was born on 12 January 1943.

HIS HONOUR: Fifty-seven years old.

MR RAFTER: I have taken that from my outline....my Court of Appeal outline would end up having some value, even though it was included erroneously. That is where that date is included. My submission is, if one goes through the matters listed in Marotta that were said to justify bail there, this case is not materially different to it at all, and the circumstances are such as would justify a grant of bail on the conditions that I have set out in the draft order attached to the written outline. He would report to the police; he would live at the address nominated. It means he is prepared to report more regularly than three times a week that I have put in the draft order if that was considered required, and, as I say, there is not suggestion that would abscond on bail. There is a discretion in the Court to grant it, as Chew, Marotta and other cases, including Chamberlain, indicate. The Court certainly does take a strong view about the matter, but in the end it is a matter for the discretion of the individual justice hearing the application and to weigh all of the circumstances.

HIS HONOUR: Thank you. Mr Weston, just before you begin, who decides whether somebody will be released to work?

MR WESTON: That would be the Corrective Services Commission, your Honour.

HIS HONOUR: Corrective Services Commissioner.

MR WESTON: Yes.

HIS HONOUR: Are there any guidelines anywhere or any regulations which affect the way in which he or she is to proceed?

MR WESTON: Yes, there are ministerial guidelines. I do not have them with me, but there are guidelines under the Corrective Services Act regulations relating to the release to work of offenders.

HIS HONOUR: Would this man be likely to satisfy it?

MR WESTON: I would think so, though, of course, I cannot guarantee that. From memory - I have had cause to look at these in the last few months - they are primarily aimed at persons who are serving offences of violence - terms of imprisonment for offences of violence, to make sure that they are suitable persons to be released back into the community.

HIS HONOUR: I do not understand that. They are not confined in their operation to people who are violent. Indeed, the principal thrust of them is to prevent violent people from getting back in to the community. Is that right?

MR WESTON: Yes, they have to satisfy certain requirements before they can be released to work. Looking at this man's convictions, though there are convictions for attempted rape, I would think that, assuming the time that he has spent in prison, that he has served it in a satisfactory way, anecdotally one would think that he would be released, but I cannot guarantee that.

HIS HONOUR: No, it is the same with parole.

MR WESTON: That is so; it is at the discretion of the Corrective Services Board, though the prisoner does have rights of judicial review and so forth.

HIS HONOUR: Mr Weston, of course, it is very, very important to have a contradictor, but in a case in which a person has been granted special leave - at the moment I do not see a community interest in, if there is no risk of his absconding - - -

MR WESTON: No, there is no evidence of that. The Crown does not suggest that.

HIS HONOUR: And suitable bail conditions can be fashioned, I just wonder what the rationale is for opposition. Now, I am not being critical of you opposing. Please do not think that I am. I just wonder what the Crown rationale is for opposition in these sorts of circumstances.

MR WESTON: Well, the Crown would submit that it is appropriate that bail be refused, that the man has been convicted - - -

HIS HONOUR: He has had a trial and he has had an appeal - - -

MR WESTON: And he has been sentenced to a lengthy term of imprisonment.

HIS HONOUR: He has satisfied a pretty statistical improbability, in a sense, by obtaining a grant of special leave, which - - -

MR WESTON: That is true, though I think your Honour made the observation in Marotta that the mere grant of special leave in itself would not be sufficient to justify a grant of bail.

HIS HONOUR: No. I am just interested in what is the rationale for opposition in the unusual circumstance that a grant of special leave has been made, because it is unusual, as I say, it is not a matter of itself which commands a right to release on bail. But what is the Crown interest in keeping somebody locked up who obviously has a chance of a retrial or an acquittal? I would think a retrial probably - it would be a split anyway. What is the Crown interest in that?

MR WESTON: Well, all I can really submit is that the Crown has an interest in seeing that a person sentenced to a term of imprisonment for serious offences should have those sentences served.

HIS HONOUR: But that will happen. If he is released on bail, that will still happen.

MR WESTON: Yes, but the Crown would submit that, in the absence of exceptional circumstances justifying his release on bail, that merely because he has been granted special leave would tend to perhaps undermine, in the eyes of some, the jury verdict.

HIS HONOUR: People say that. How can it possibly undermine the jury verdict? It is a proposition I really do not understand. The jury verdict stands. The sentence, if the appeal ultimately fails, is interrupted, but it does not affect the jury verdict at all. If you were a juror, particularly if the ground taken is an erroneous direction, if you were a responsible juror, you would not feel at all upset about the issue. The view would be, "Well, we found him guilty in accordance with the directions. The directions might turn out to be wrong". If the directions are wrong, then naturally as a juror I would accept that there is not a strong public interest, or there is not a public interest in the person continuing to serve. Particularly if I knew that, if his appeal ultimately fails, he will serve the balance of the term.

You are telling me what the attitude is and you are here under instructions, but I am just interested in the rationale of it. In a case where bail has been granted before, the conditions have been honoured, a very unusual circumstance that a grant of special leave has been given, it is accepted that there is no risk that the person will abscond, or no identifiable risk - I suppose it is always a possibility, but there is no identifiable risk - the person has a job to go to, and he obviously has an arguable point. What interest does the Crown have in getting up and saying to me, "Well, the jury verdict" - or that "He should not be released on bail pending the hearing of his appeal"? What Crown interest does that serve? It certainly does not serve any community interest that a person serve time in prison if later on it turns out that he was entitled to an acquittal.

MR WESTON: That is true, yes.

HIS HONOUR: My reaction to that is that it is really contrary to the public interest that people serve time imprisoned - - -

MR WESTON: If they are found to be wrongfully convicted, yes. That goes without saying.

HIS HONOUR: One might even take it a step further that perhaps it is not in the public interest that a person serve time in prison if he or she has not had a fair or a proper trial, or a trial according to law.

MR WESTON: Oh, yes, yes, no one could cavil with that, with respect.

HIS HONOUR: The case here is that it is arguable that the applicant has not had a trial according to law.

MR WESTON: Yes, but that would be so in every case where special leave has been granted, one would think.

HIS HONOUR: I think we probably do about, what, 15 or 20 applications for special leave in criminal cases a year, or allow.

MR WESTON: Yes, it seems to be the ratio of about one in four, or one in five applications, perhaps even one in six.

HIS HONOUR: You cannot do it statistically - and I am not suggesting that I would do it that way - but it is unusual, is it not?

MR WESTON: They are in the minority of applications, yes.

HIS HONOUR: I am sorry, I have interrupted you. In fact, I have not even let you get started, so you go ahead, Mr Weston.

MR WESTON: Thank you, your Honour. In response to the matters raised by my learned friend, the Crown would submit firstly that exceptional circumstances have not been demonstrated by the applicant. My learned friend has made much about the fact that leave has been granted, and he has sought to then develop that by saying that the applicant does have an arguable point. In my submission, they really amount to the one and the same proposition - - -

HIS HONOUR: They are. I think you are right about that.

MR WESTON: And if that is so, I would, again, rely upon what your Honour said in Marotta, that the mere grant of special leave in itself cannot justify the grant of bail. My learned friend did raise some other ancillary points: firstly, that his client had been on bail at all times prior to his conviction and that his client is a man of apparently very stable background. Those matters are two in his favour, but in my submission they themselves are not particularly exceptional.

HIS HONOUR: Well, they are very bad offences, if they have been made out. There is no doubt about that.

MR WESTON: Yes. There are two convictions of attempted rape - - -

HIS HONOUR: And gross exploitation of a child in his family, in a family situation. You do not have to address me on that. There is no doubt - - -

MR WESTON: A matter that was raised in argument by your Honour - or I should say in discussion with my learned friend - was the fact that the Crown case here may be seen as a strong one. That is, that one does have the tape-recorded admissions - the tape-recorded conversation between the applicant and the complainant which clearly could constitute admissions against interest by him.

HIS HONOUR: I was just thinking about one matter. I am sorry to go back to it, but if, in fact, he is eligible for work release soon, I suppose it might be an argument in favour of your approach, so long as these proceedings will not influence that decision in any way adversely to him. The fact that he is out on work release means that he is not serving time, I suppose. That may happen within a few weeks.

MR WESTON: Yes, well, he will not be incarcerated.

HIS HONOUR: Which is a matter of concern.

MR WESTON: Yes. He will be effectively in the non-custodial phase of his sentence and will also be subject to the regime of work release, and he will be supervised by the Corrective Services Commission.

HIS HONOUR: Would there be anything to prevent him taking up this position that he says is available to him if he went on work release?

MR WESTON: I cannot comment upon that, but my suspicion would be no. But, again, that would be a matter where instructions would have to be taken.

HIS HONOUR: Look, I do not want to tell the parties how to conduct their cases. These are adversary proceedings. I am just wondering whether I might be assisted by reference to the regulations and the ministerial guidelines. Do you not think that might be helpful, Mr Weston?

MR WESTON: They may well be, your Honour, yes, of course.

HIS HONOUR: They may be helpful to your case, they may be helpful to Mr Rafter's case, but it seems to me that they may be relevant here.

MR WESTON: Yes, as to whether or not he could be released, yes.

HIS HONOUR: Do either of you want to do anything about that?

MR WESTON: Yes, I can obtain them and put them before the Court.

HIS HONOUR: Mr Rafter would have to see them. You do not have to put them before the Court, these are adversary proceedings, but I am interested in them and they do seem to me to be relevant matters. They would clearly appear to have some relevance, having regard to my decision in Bull and Marotta.

MR WESTON: Yes.

MR RAFTER: It seems a good idea to have them, although I was going to make the submission that in Marotta, looking at particularly Mr King's case, he was eligible for release to go to a job in January 1999.

HIS HONOUR: Yes, but, Mr Rafter, I tell you there was not an argument addressed to me along the lines of what I have just put to Mr Weston. If that is so, then the particular evil of unfair incarceration, should that turn out to be so, does not arise.

MR RAFTER: Well, work release of course is - he would not necessarily be working in the job that he proposes to go into.

HIS HONOUR: No, but the major evil, which is being locked up in prison, is certainly avoided.

MR RAFTER: Well, he would spend his nights in prison. Work release is quite different to home detention - or in a work camp, or something like that. It is not quite as - - -

HIS HONOUR: It is a lot lesser evil otherwise people would not be clamouring to do it.

MR RAFTER: Exactly. I am sure it is preferable to being in gaol, but it is not quite like being at home. I agree with my learned friend; it may be useful for your Honour to have it. It may help one side or the other, but in the end my submission will remain the same, that - - -

HIS HONOUR: Yes, I understand that. It is just it may help me, but as I say, I am not going to tell either of you to do it. But if either of you wants an adjournment to put that matter before me, I would grant it.

MR RAFTER: Well, my learned friend has already indicated he is prepared to do it. I would support an adjournment to enable that to be done because it is a point that, rightly, your Honour is interested in and it would be preferable to have the matter decided on all of the materials that might be relevant.

HIS HONOUR: Yes. Mr Weston, it would be helpful for me, I think. You want the adjournment, do you not?

MR WESTON: Yes, your Honour.

HIS HONOUR: It would be helpful for me not only to see these, but to see any policy or if you can address me on that. I do not know how work release works at all. Mr Rafter says, and I am sure he is right, that the person is locked up at night, but does he go to a lesser security prison, or do they go to camps? What in fact happens?

MR WESTON: I would think they are sent to camps, but, again, I cannot guarantee that without evidence from the Commission.

HIS HONOUR: All right, well, I think that might be quite helpful. How long do you think you might need for that? You might want to put in an affidavit, you know, exhibiting the material and providing an outline of how it works.

MR WESTON: Yes. It may take a little time to obtain the actual regulations because in my experience in dealing with the Commission, it is not always easy to get the most up-to-date regulations from them.

HIS HONOUR: Judges do not really know how these things - well, I certainly do not know how these things operate. That is why I am interested to know. I think we should know, really. I would welcome the opportunity of being informed. I want to conclude this matter as quickly as I can. Would half past 10 tomorrow morning, by then, be - are you available? I will not set it down for a time that neither of you is available.

MR RAFTER: I am quite happy with that. It might be that some materials are available by then. If there are others that are not, then it may not be necessary to reconvene for further argument; we can put in written submissions consequent upon getting all of the material, and then your Honour can consider the matter.

HIS HONOUR: Half past 10, tomorrow?

MR RAFTER: Yes, certainly your Honour, yes.

HIS HONOUR: Is that satisfactory for you?

MR WESTON: Yes, it is your Honour, it is.

HIS HONOUR: All right. Well, I will adjourn this matter until 10.30 tomorrow. You will probably find Mr Rafter will agree to all the material if it is in writing anywhere, the regulations and any policy or guidelines, and how it actually works. If you can just put a document before me, if you cannot get an affidavit.

MR RAFTER: Yes. I am sure we can agree on the material, your Honour.

HIS HONOUR: Yes, you should be able to. Thank you.

AT 12.49 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 1 NOVEMBER 2000