Pinkstone v The Queen P30/2003 [2003] HCATrans 760 (27 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos P25 and P30 of 2003

B e t w e e n -

ANTHONY JOHN PINKSTONE

Applicant

and

THE QUEEN

Respondent

Application for bail and expedition of the applications for special leave to appeal

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 27 MAY 2003, AT 11.00 AM

Copyright in the High Court of Australia

MR A.J. PINKSTONE appeared in person.

MR K.P. BATES: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

HIS HONOUR: Mr Pinkstone, let us get clear the material that you are placing before me. I have read the material that has been placed before me and I must congratulate you on the clarity with which you have expressed your case. Unfortunately it is not always so when people are appearing in person, but your application is very clear and I understand it, I think.

MR PINKSTONE: Thank you very much, your Honour.

HIS HONOUR: Let us make clear the matters that are on the record so that the transcript will show the matters that you put before me. Can you just identify the matters that you have asked me to take into account in this application?

MR PINKSTONE: Yes, your Honour, there are two housekeeping matters I would like to attend to first, your Honour, prior to commencement. First, I seek leave from the Court to join my application for special leave to appeal P30 of 2003, which is the appeal against sentence, to my previous special leave application, P25 of 2003, which is the appeal against conviction, for the purpose of the application before this Court today.

HIS HONOUR: Yes, you are wanting to raise in your special leave application now a matter concerning your sentence and you had not originally relied upon that ground, but you want to add it to the grounds that you are seeking. Is that correct?

MR PINKSTONE: Your Honour, when I originally filed my special leave application, P25, I was under the impression that the matter was joined in the Court of Criminal Appeal, the court below, conviction and sentence were both heard together. I tried to have them separated. So when I came before this Court I was under the impression that the whole matter, sentence and conviction, would be dealt with on one application.

I have now been informed by Ms Harris, the Deputy Registrar of the High Court, that was incorrect and that the applications must be filed on separate applications to the Court. So, therefore, I had to re-file the appeal against sentence which I did and actually added grounds to that and submitted an affidavit in support of an application for special leave and an order to dispense with High Court Order 69A subrule 3(1). I was around about a week out of time because the misunderstanding on filings.

HIS HONOUR: Yes. Let me just ask the Crown what the attitude of the respondent is to that application to enlarge the grounds of the application for special leave in respect of the grounds that relate to sentence. Does the Crown have any objection to enlarging that?

MR BATES: No, your Honour.

HIS HONOUR: No, I did not think there would be. So I would be inclined to treat those matters as now before me and I would be inclined to allow you in due course, when we dispose of this matter, to increase the grounds to include the additional ground that you wish to add to those which you had earlier filed in time.

MR PINKSTONE: Thank you, your Honour.

HIS HONOUR: So that is not a problem. You have those matters sorted out. But I have to tell you - and if you have looked at the cases you will be aware - that this Court very rarely gets involved in sentencing appeals. That was said in Postiglione v The Queen and the reason is obvious, that sentencing matters are quasi-discretionary and it has already gone through a trial judge and a Court of Criminal Appeal, so this Court does not often get into such matters unless there is some general issue of principle involved.

MR PINKSTONE: I understand that, your Honour, and I have read the case of Goddard, especially about the application before this honourable Court, only recently in relation to disparity in sentencing. However - - -

HIS HONOUR: I am just concerned that when you come to the Court you will have 20 minutes and you have to be very careful about the use of that 20 minutes and it may be wiser for you to be concentrating on your conviction sentence because that is the sort of matter that is more likely to attract the attention of the Court and in respect of that matter you have the advantage of having the dissenting opinion of Justice Rolfe.

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: So that you just have to make some decisions of your own there, but you are obviously an intelligent man so you want to think those through before you proceed to spend a lot of time on the sentencing issues.

MR PINKSTONE: I take on board what you are saying, your Honour. Thank you.

HIS HONOUR: Now, you said there were two housekeeping matters. Are they the two housekeeping matters?

MR PINKSTONE: The second matter was just what documents you had before your Honour. So your Honour has the application for special leave to appeal against sentence?

HIS HONOUR: Yes, I have that file. I have not gone through that closely because if you are to succeed today in either (a) getting expedition of the hearing of your special leave application, or (b) getting an order for bail, or both, then that will turn on your conviction application for special leave, not on your sentence application. I have all the files before me and in due course I will make an order enlarging your grounds of appeal in respect of your sentence, but we have to concentrate on the conviction appeal because that is really the only foundation for the grant of the order of expedition and/or the grant of an order of bail.

MR PINKSTONE: I understand, your Honour, thank you.

HIS HONOUR: Would you explain to me - first of all, let us place on the record the matters of an evidentiary kind that you wish me to consider. There is an affidavit by you, is there not?

MR PINKSTONE: Your Honour, there first is a chamber summons for order for bail pending special leave to appeal and expedition for special leave to appeal.

HIS HONOUR: Yes, I have that.

MR PINKSTONE: There is further an affidavit in support of the chamber summons for order of bail pending special leave to appeal and expedition, special leave to appeal - - -

HIS HONOUR: Would you identify that affidavit? What is the date of it?

MR PINKSTONE: Your Honour, the affidavit was sworn 9 May 2003.

HIS HONOUR: This is your own affidavit?

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: Now, let me just ask Mr Bates whether he has that affidavit and whether he objects to anything in that affidavit or wishes to cross-examine you on the affidavit. Mr Bates, do you object to - - -

MR BATES: If your Honour pleases, I have the affidavit. I do not object to it being read in these proceedings and I do not wish to cross-examine on it.

HIS HONOUR: Yes, thank you very much, Mr Bates. I read an affidavit in support of the summons for orders for bail and expedition dated 8 May 2003, sworn by the applicant, Anthony John Pinkstone. Yes, are there any - - -

MR PINKSTONE: Yes, your Honour, there are also two annexures to that affidavit, being exhibit "AJPINK-1" and exhibit "AJPINK-2" - - -

HIS HONOUR: Yes, I have that.

MR PINKSTONE: - - - consisting of documents that were filed in the Supreme Court for a bail application.

HIS HONOUR: I have both of those documents and I have looked through those.

MR PINKSTONE: Thank you.

HIS HONOUR: Is there anything else?

MR PINKSTONE: Yes, your Honour, the application for special leave to appeal, P25 of 2003, and documents in support filed with the Perth Office of the High Court Registry on 16 April 2003.

HIS HONOUR: Yes, I have those. I have looked at those. Did you draw the application for special leave or was that drawn by your counsel?

MR PINKSTONE: Your Honour, I did actually draw it but there was one point that I wish to raise later in relation to the orders sought. Mr Shirrefs actually did draft the orders. My apologies, in relation to P25, Mr Shirrefs did draft that document, yes.

HIS HONOUR: Yes, I must say it is a very clear document and it sets out very clearly the matter that you wish to raise. Where is Mr Shirrefs based? Is he based in Sydney, Melbourne or Perth?

MR PINKSTONE: In Melbourne, your Honour.

HIS HONOUR: In Melbourne, yes. He has appeared before the Court. I just was not entirely clear where he is based. Very well, I have looked at all of that and - - -

MR PINKSTONE: The only other one, your Honour, there is an index of written submissions in support of oral argument, which is just a brief outline of what I require the Court to take into account in relation to this bail application, and also a bundle of miscellaneous documents, "A" through to "F", which were faxed through to the Court yesterday.

HIS HONOUR: Yes, I have a cover sheet dated 24 May 2003 which attaches a list of authorities, an index of written submissions in support of oral argument and miscellaneous documents "A" to "F".

MR PINKSTONE: Yes, thank you, your Honour.

HIS HONOUR: Now, Mr Bates, do you have any objection to any of that material?

MR BATES: No, your Honour.

HIS HONOUR: Yes, very well. I receive that material and will take it into account.

MR PINKSTONE: Thank you, your Honour. That is all - - -

HIS HONOUR: Do you have any other material that you are placing before me, Mr Pinkstone?

MR PINKSTONE: That is correct, your Honour, yes.

HIS HONOUR: Do you have anything else?

MR PINKSTONE: No, I do not. That is all I rely on.

HIS HONOUR: Very well, just sit down for a moment. I will ask Mr Bates. Mr Bates, do you have any material that you wish to place before me? I do have written submissions, but is there any evidentiary material or not?

MR BATES: No, your Honour.

HIS HONOUR: Yes, thank you very much, Mr Bates. Very well, we have the evidentiary basis of the application sorted out. Now, what is your submission?

MR PINKSTONE: If your Honour pleases, there is before this Court this morning a chamber summons filed with the Perth Office of the High Court Registry in which I seek an order to be granted on such terms and conditions as the Court deems appropriate or, in the alternative, I seek an order that the two applications for special leave pending, P25 and P30 of 2003, be expedited before this honourable Court for determination to negate futility.

Your Honour, for my part, I do not have the benefit of legal representation, nor do I have the skills to articulate my argument as.....experienced counsel.

HIS HONOUR: I am not so sure about that.

MR PINKSTONE: I am sorry, your Honour?

HIS HONOUR: I am not sure about those comments. You are doing a whole lot better than many lawyers we get before us.

MR PINKSTONE: Thank you, your Honour. I respectfully submit that this case represents a rare opportunity for the High Court to inject some sanity into State and Commonwealth laws as they currently relate to the required elements to constitute a supply which is primarily the gist of this chamber application for bail. I do not intend to make extensive oral submissions in light of the fact that the substance of my argument is comprehensively contained within the filed documents I have previously referred.

Your Honour, I primarily rely on the sagaciously written dissenting judgment of his Honour Justice Rolfe in Pinkstone v The Queen [2003] WASCA 66, paragraphs - - -

HIS HONOUR: Yes, I have read his Honour's reasons.

MR PINKSTONE: Yes. I submit that the dissenting judgment of his Honour Justice Rolfe points directly to the exceptional circumstances which would invoke the jurisdiction of this Court to grant bail. The matter pending before this honourable Court goes to the very heart of whether my incarceration for the past few years in relation to the alleged gravamen of the offence of supply proffered in count 1 on the indictment is in fact a nullity at law. Thus, I seek to attack the legality of my incarceration.

It may be useful to commence this application by inviting your Honour to the affidavit in support of a chamber summons which accompanied the summons activating this application. It is the affidavit I prepared which was sworn 9 May 2003. I just seek to identify a couple of paragraphs in it. The affidavit predominantly relates to why I am before the Court and not before the court below on this application, your Honour.

HIS HONOUR: Yes.

MR PINKSTONE: If I can invite your Honour to paragraph 8 - - -

HIS HONOUR: Could I just ask you first of all to again make clear to me, why did you commence two applications for special leave instead of a consolidated one that dealt both with the conviction matter and the sentencing matters?

MR PINKSTONE: I did originally, your Honour. What originally happened, I filed the application for special leave. I then, about a week later, filed to add an additional ground which is annexed to that affidavit which - sorry - - -

HIS HONOUR: Is it not appropriate that I should order that the two be consolidated or heard together?

MR PINKSTONE: Yes, your Honour, that is correct.

HIS HONOUR: That is what you ask me to do?

MR PINKSTONE: Yes, your Honour.

HIS HONOUR: You will not get two 20 minutes; you only get one 20 minutes, you realise that?

MR PINKSTONE: I only wanted them consolidated and joined just for this matter before the Court today, your Honour. You see, when I spoke to Ms Harris I was informed that - - -

HIS HONOUR: You are not going to get two 20 minutes out of the Court, I am afraid.

MR PINKSTONE: No, I understand that, your Honour, I understand.

HIS HONOUR: You will only get one 20 minutes and I would be inclined - just let me consult with the Registrar, if you would not mind. My understanding from the Registrar is - and correct me if this is not entirely correct - that there were two matters in the Court of Criminal Appeal of Western Australia, one relating to the conviction, one relating to the sentence, but that when the Court of Criminal Appeal came to deliver its reasons, it dealt with them in the one consolidated set of reasons.

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: The reason why the Registry required two files was because there were two matters in the Court of Criminal Appeal coming up here from the Registry of the Supreme Court of Western Australia. But, in fact, there is no reason why they should not be consolidated and heard together. That is what normally happens. We often sit with applications in relation to conviction and sentence in the one hearing. So that is what I will do in due course, both for today and for the future.

MR PINKSTONE: Thank you, your Honour. It was just an administrative filing problem, I think, a misunderstanding on my behalf.

HIS HONOUR: Yes, very well.

MR PINKSTONE: Your Honour, at paragraph 8 of my affidavit, I identify exhibit "AJPINK-2", document E, which is my written submissions that were filed in the court below in relation to a bail application.

HIS HONOUR: Yes.

MR PINKSTONE: I will just confirm, your Honour has read that bail application?

HIS HONOUR: I have, yes.

MR PINKSTONE: Your Honour, I understand the principles to be applied in dealing with an application such as this. They are explained in United Mexican States v Cabal [2001] HCA 60 at paragraphs 40 to 43, where in the joint judgments of Chief Justice Gleeson, Justice McHugh and Justice Gummow the Court provided a comprehensive ruling on what an applicant applying for a grant of bail prior to an appeal being determined by the High Court must confirm. I understand that test, your Honour.

Of course, the statement of principle in such cases as Cabal have to be read in the context of the facts and circumstances of each individual case and the unique arguments that were advanced in each. My understanding - - -

HIS HONOUR: You will have seen that I granted Mr Cabal bail, but that this was reversed by the Full Court.

MR PINKSTONE: Yes, that is right, in HCA 42 it was Cabal and 43, from my memory, was Pasini, and I understand that the Court did overturn that decision, yes, your Honour.

HIS HONOUR: The Full Court emphasised once again that the grant of bail in these matters is truly exceptional and that a matter that is of obvious concern is the risk of flight and that the person will not appear to answer to his bail, especially where what is involved is the prospect of that person leaving Australia.

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: That was the concern that was voiced in respect of Mr Cabal.

MR PINKSTONE: Yes, a considerable amount of money involved in that particular case.

HIS HONOUR: Yes.

MR PINKSTONE: As I say, I understand the first test, your Honour, and in relation to that test, I hope to persuade your Honour today that the case before this Court is an exceptional case and that it is the appropriate vehicle for this honourable Court to examine whether the anomalies that currently exist in Western Australia in relation to the necessary elements that constitute an offence of supply and, further, whether the law permits a departure from the legal doctrine of innocent agent to now permit an agent provocateur to intervene, take possession of a prohibited drug and with that knowledge maintain exclusive dominion until they decide to facilitate a supply contrary to Commonwealth law.

Your Honour, in all my limited research, I found no Australian legislation that permits police to seize and take exclusive control of what they suspect to be a prohibited drug and keep them under their dominion for an unspecified amount of time before initiating their own supply to the proposed recipient or, as in this case, the consignee. The unspecified time is of no consequence, in my respectful submission. It matters not if it is one minute or three months, as neither the consigner, nor his agent, even innocent agent, has any form of control or dominion over the consignment in question.

HIS HONOUR: Mr Pinkstone, you do not have to go into a lot of detail about this because I have read the Full Court of the Court of Criminal Appeal decision and, subject to anything Mr Bates says, I regard the issue as reasonably arguable. Whether you will get special leave is another matter, but I regard it as reasonably arguable. So you do not have to develop that first point.

MR PINKSTONE: No, your Honour, it would be very presumptuous of me to try and articulate better than his Honour Justice Rolfe or Mr Shirrefs in his written submissions to the Court.

HIS HONOUR: Yes, it is very clearly set out in the application for special leave. Again, whether it gets special leave where you have to show that something is special and that there is a matter that touches on the administration of justice is a different question, but it is definitely reasonably arguable, as Justice Rolfe's reasons indicate, at least as far as I am presently inclined to think.

MR PINKSTONE: Yes, your Honour. The main point, the crux of the argument, is that there is no ability to countermand in the circumstance which arose where the actual police took control of the consignment. Where a person has no ability to countermand, it cannot be said that he has some sort of dominion or control over that item and that is the main point that I would like to raise, but - - -

HIS HONOUR: I suppose it can be said that the point is not really a merits point in the factual sense. It is a merits point in a legal sense. It is a technical point.

MR PINKSTONE: It is a technical point, your Honour, I accept that.

HIS HONOUR: Yes, but that does not mean that it does not necessarily attract the attention of this Court. Quite a lot of time is spent in technical points. Mr Bond won his appeal on a technical point and I do not suppose that one should draw distinctions on these matters.

MR PINKSTONE: Yes, your Honour. Your Honour, just of concern is a point that was not raised in the comments of Justice Rolfe, was notwithstanding the unauthorised intervention by the police, once they had knowledge they had possession of the drug, they had an obligation to the community, I say, to substitute those prohibited drugs for a harmless substitute before they supplied them to Yanko, as that consignment was displaced in the community for nearly three hours before it was relocated. That is the danger that is involved in allowing drugs to go into the community without any documented authorisation from legislation without being substituted - - -

HIS HONOUR: I think you had better pass over that point quickly because, after all, the suggestion is that if you are guilty of these offences, you were not thinking of it being in the community for a few minutes or a few hours, but for a rather lengthier time and being used.

MR PINKSTONE: Yes, your Honour, I understand that.

HIS HONOUR: So I think that that is not really much of a point. But you say there is a legal question and it is relevant to the way police in Australia handle these matters, where they take control of drugs, whether by doing so they break the chain of supply, and that that is an important question upon which Justice Rolfe dissented and it is suitable for consideration by the High Court. Well, I think that is all you have to say at the moment. We are not hearing the special leave today, simply the applications you have placed before us.

MR PINKSTONE: Yes, I will not pursue that matter, your Honour. Only last Friday, your Honour - just one matter I would like to correct for completeness. If I could turn, your Honour, to paragraph 18 of the affidavit of Anthony John Pinkstone in support of the application for special leave and order to dispense with High Court Order 69A rule 3(1) - that is in P30 of 2003 - to paragraph 18 and if I could just seek leave just to quickly read that.

HIS HONOUR: Yes.

MR PINKSTONE: I go on to say:

as at today's date, 13 May 2003, the sentence I must serve in custody is exactly as detailed in the `Sentence Information Unit' document dated 2 April 2003 -

Now, that has been amended, your Honour - - -

HIS HONOUR: Which paragraph are you now reading?

MR PINKSTONE: I was reading paragraph 18, halfway through the paragraph, I apologise, your Honour. It just talks about the sentence that I am currently serving and my - - -

HIS HONOUR: This is of your affidavit of 8 May?

MR PINKSTONE: No, your Honour, that is the affidavit sworn on 15 May in relation to P30 of 2003.

HIS HONOUR: Just a moment. I am not sure that you earlier identified this affidavit because you were concentrating on P25 - - -

MR PINKSTONE: I apologise, your Honour.

HIS HONOUR: - - - but I now have the file in P30 of 2003 before me and I do not have in that file the affidavit of 18 May. Just a moment. I now have that. Mr Bates, have you seen that affidavit, the affidavit in P30 of the applicant which is sworn - - -

MR BATES: Yes I have, your Honour, and I have no objection to it being read in these proceedings.

HIS HONOUR: Yes, very well. Do you wish to cross-examine Mr Pinkstone on that affidavit?

MR BATES: No, your Honour.

HIS HONOUR: Do you have any evidence in reply to it?

MR BATES: No, your Honour.

HIS HONOUR: Yes, very well. I read the affidavit of the applicant in P30 of 2003. Now, take me again to paragraph 18.

MR PINKSTONE: I apologise, your Honour. Halfway through that paragraph, I state:

as at today's date, 13 May 2003, the sentence I must serve in custody is exactly as detailed in the `Sentence Information Unit' document dated 2 April 2003; Exhibit - "PINKSTONE-2"

Now, in that there was a mistake with the calculation of the sentence delivered by the court below and also my security rating. If I could now turn, your Honour, just in relation to this matter - - -

HIS HONOUR: No, wait a moment, you are going too fast. Where is that document? Is that annexed to the earlier affidavit, is it?

MR PINKSTONE: No, that is annexed to that document. There should be "PINKSTONE-2" annexed to that affidavit.

HIS HONOUR: Just a moment. Yes, I have that document, annexure 2.

MR PINKSTONE: In the middle of the page it has what is referred to as an "EED" which states 01/10/2006 being my earliest eligible date for release. Now, that has been rectified after consultation with the Sentencing Information Unit here at the Department of Justice. If I could turn, your Honour, to the - - -

HIS HONOUR: Look, I do not need to get myself involved in all these graphs and so on. It may be that Mr Bates has no disagreement with you about this. Just tell me, what is your earliest date of release to parole on your current sentence?

MR PINKSTONE: Your Honour, in the miscellaneous documents - - -

HIS HONOUR: Do not worry about the source; just tell me the date.

MR PINKSTONE: Sorry, I am reading out from that, your Honour, in item "C". As of yesterday, I have been granted a minimum security rating at the prison. I am eligible to commence community-based work release on 13/4/2005 and - - -

HIS HONOUR: Thirteenth of what?

MR PINKSTONE: On 13 April 2005 and my earliest date for parole is 12/10/2005, but I can be released into the community on 13/4/2005 on community-based work release. That is stated in the miscellaneous documents, document "C".

HIS HONOUR: Now, just listen to me, please. The earliest date of release to community service is 13 April 2005 and your earliest date of release to parole is 12 October 2005.

MR PINKSTONE: That is correct.

HIS HONOUR: That is on your current sentence. That is if you fail in this in the application before this court.

MR PINKSTONE: That is on my current sentence. That is correct, your Honour.

HIS HONOUR: Now, if you were to succeed in the application before this Court and the conviction and sentence in respect of supply were quashed, what is the earliest date of your release to community service on the count relating to attempted supply?

MR PINKSTONE: Your Honour, that sentence was completed on 12 October 2001, as stated by Justice Murray in his reasons of decision.

HIS HONOUR: On 12 October 2001?

MR PINKSTONE: Yes, your Honour, that has finished.

HIS HONOUR: Similarly, so that if you were to succeed you would be entitled to release immediately - - -

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: - - - you have completed your sentence on that?

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: Very well. Subject to hearing Mr Bates, that seems a very powerful reason for the expedition of your application.

MR PINKSTONE: Yes, your Honour.

HIS HONOUR: So I would be inclined to grant expedition of your application and the question is whether it would not be better to expedite it to Melbourne, where Mr Shirrefs is, than to Perth, where Mr Shirrefs is not.

MR PINKSTONE: Your Honour, that is a significant consideration, considering that I have financial constraints at the moment and - - -

HIS HONOUR: If it were expedited to Melbourne, you would not be able, of course, to attend, but Mr Shirrefs could more economically attend in Melbourne.

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: That would impose some burden on the Crown, but it may be that in the circumstances that would not be an unreasonable burden to impose.

MR PINKSTONE: No, your Honour. The problem I have at the moment is, actually, I have borrowed a substantial amount of money to date in relation to the - - -

HIS HONOUR: Yes, I inferred that.

MR PINKSTONE: Yes, I just borrowed a small amount of money from Mr Shirrefs to write the written submission. I have not got the funds available at the moment. Even though I am asking and trying to beg, borrow and persuade any family member I can to help out in this - - -

HIS HONOUR: As long as you do not do the third of that phrase. You can beg, you can borrow, but you cannot do the third, otherwise you will merely compound your problems.

MR PINKSTONE: No, your Honour, you cannot. So that was one of the main crux of applying for bail is that I have a job to go to and to try and earn sufficient money so I can procure legal representation. That is a significant problem, your Honour, especially in a matter as complicated as this. Just for example, the Court of Criminal Appeal was around $40,000 for two days. Now, to re-brief another barrister in this matter would be extremely difficult, and that is why I was hoping to come before this honourable Court this morning and explain that situation and, your Honour, my financial situation is compounded further - if I can just very quickly turn your Honour to the miscellaneous documents.

HIS HONOUR: Yes.

MR PINKSTONE: Bear with me for one moment. Document "B", which was an application by the Crown to forfeit some money that I had in my possession. I appeared in person. Document "Ba", the following document, is a notice of motion to set aside the holding orders and strike out the proceedings which I filed with the court. I went before Justice Murray in the Supreme Court and argued the matter in person for over an hour. Document "Bb" is a letter from the Department of Public Prosecutions consenting that they will return that money to me as soon as possible, and that letter is dated 16 December 2002. Document "Bc" is a memorandum of consent orders which the Department of Public Prosecutions sent which I signed on 19 December 2002 saying that money will be released.

From that day, there has been weekly contact with the Department of Public Prosecutions for the release of that money. Six months later, it still has not been forthcoming, your Honour. They are the sort of difficulties that I encounter in Western Australia. I mean, I have money there. It was said six months ago they were going to return it. Yet, after daily contact and petty flogging by the Department of Public Prosecutions, that money has not been returned and has not been forthcoming. So that is of concern, your Honour, and that is the sort of situation that really compounds my financial problems at the moment.

HIS HONOUR: Yes.

MR PINKSTONE: Your Honour, I think that is as far as I can take it for the moment. Thank you.

HIS HONOUR: Yes, very well. Mr Bates, first of all, in relation to the release dates, do you agree with the information which the applicant has put before me, that is to say, that on - - -

MR BATES: Yes, I agree that his earliest date for release on community service is 30 April 2005 and on parole, 12 October 2005. I disagree with one aspect, and that is that the applicant has served his sentence in relation to count 3 which was the attempt to obtain possession of cocaine. But if he is ultimately successful in this particular matter which is the supply of methylamphetamine, a conviction for attempted supply of methylamphetamine would be substituted. In our submission, his current sentence is 10 years for the completed act of supply and, given the circumstances of that supply, we would submit that if a sentence or a conviction for attempted supply was substituted, he would still have to be resentenced to a substantial term of imprisonment. So I disagree with that particular matter.

HIS HONOUR: I am just not entirely clear about this. He was tried before the jury on two counts, one of supply and one of attempted supply, is that not correct?

MR BATES: That is correct, your Honour. Count 3 related to - - -

HIS HONOUR: Please, Mr Bates, if you would listen to me and just answer the question because then I can get it clear in my mind.

MR BATES: Yes, your Honour.

HIS HONOUR: He was tried on those two counts. He was convicted by the jury - he was found guilty of those two counts. He was convicted on those two counts, and I thought he was sentenced on those two counts.

MR BATES: That is correct, your Honour, he was. One was an attempt.

HIS HONOUR: That is right.

MR BATES: One was an attempted supply of cocaine and the other was a supply of methylamphetamine.

HIS HONOUR: That is right.

MR BATES: He served his sentence on the attempt to supply cocaine and is currently challenging his conviction in relation to the events of supplying methylamphetamine. If he is successful in his appeal in respect of the conviction for supply of methylamphetamine, he will have to be resentenced for the offence of attempted supply of methylamphetamine. In our submission - - -

HIS HONOUR: Would you not have to re-charge him and re-try him unless he pleaded guilty of that offence? You could not simply assume that the jury conviction on the first trial would stand as an entirely separate and different offence, could you? He would have to be retried.

MR BATES: The applicant's notice of appeal against conviction asserts that if he is successful in his appeal against conviction, that a verdict of attempted supply should be substituted for the present verdict of supply. There is power in the Criminal Code for a Court of Criminal Appeal to substitute a verdict that was otherwise open on the evidence. On the facts of this particular case and based on the applicant's own notice of appeal, we would submit that if he were successful in respect of the offence of supplying methylamphetamine, a conviction for attempted supply would be substituted and he would then need to be resentenced in respect of that particular matter. What we say - - -

HIS HONOUR: Would you explain this to me: why would the sentence, first of all, stop - the methylamphetamine was not released into the public and therefore, in fact, nobody was affected by the drug concerned. Why would that offence attract a heavier sentence than the sentence that was imposed in respect of the cocaine which was also attempt and in respect of which also the drug was not distributed to the public?

MR BATES: We say it would attract a sentence in the vicinity of the sentence that was imposed for attempted supply of cocaine which is a head sentence of six years. Presently, he has 10 years for the completed act of supply of methylamphetamine. We would submit that if the verdict of attempted supply was substituted, he would still be looking at a substantial term of imprisonment of several years imprisonment for the offence of attempted supply. Under the Misuse of Drugs Act 1981 , an attempt attracts half the maximum penalty of the completed offence. In this case, a completed act of supply is 25 years, or a $100,000 fine, or both. An attempt would be 12 1/2 years, or a $50,000 fine, or both.

What we would submit in this case is, having regard to the quantity of the drug and the purity of the drug, the fact that the applicant did all that was required on his part to complete the act of supply and the fact that the only reason that the supply was not completed was the intervention of the police at Perth airport in Western Australia, that on those facts, an offence of attempted supply would attract a substantial term of several years' imprisonment, somewhere in the vicinity of the sentence that he received for the attempted supply of cocaine, which was six years' imprisonment which - - -

HIS HONOUR: There would have to be consideration of the totality principle and it may be that the sentencing judge or the Court of Criminal Appeal resentencing would have to look at the matter from the point of view of the total criminality of the two events relating, as they did, so closely to each other, the dispatch of the two drugs being by the same method on the same day, on the same airline, to the same place.

MR BATES: We accept that the Court of Criminal Appeal or a sentencing judge who was resentencing would have to look at those questions of totality. Those questions have already been looked at in the context of a completed act of supply and it has been found by the Court of Criminal Appeal that the totality principle was not offended. We would submit that similar considerations would apply in respect of any substituted verdict of attempted supply. So we would not see issues of totality as preventing other than a substantial term of several years' imprisonment for the offence of attempted supply.

HIS HONOUR: You say that that sentence would be a cumulative sentence on top of the by-now expired sentence for attempted supply of cocaine?

MR BATES: That is correct, your Honour. The offence of attempted supply of cocaine, the custodial part of that sentence finished on 10 October 2001 and he is now serving the sentence of 10 years' imprisonment for the completed offence of supply of methylamphetamine and your Honour already has the dates of his earliest eligibility for release on community service and parole in respect of those matters.

HIS HONOUR: Now, could you help me with this, it is a long time since I sat in a Court of Criminal Appeal and did all these horrible calculations, but if one assumes that on the conviction and sentence for actual supply this applicant would be available for release to community service in April 2005 and if one assumes that under your Criminal Code or under the relevant drugs legislation the sentence that is to be imposed for attempted supply is half that which would be imposed in the event of conviction for actual supply, given that the release to community service or parole is in 2005, one would infer that the release to community service or parole for attempted supply would come back considerably from April 2005 and October 2005 respectively.

MR BATES: Yes, it would come back. Half the maximum, that is the maximum penalty, if one uses the rough rule of thumb, five years being half the sentence he got for the completed act of supply, the way it is worked out in respect of the non-parole period is that the two years non-parole period is added to the five year sentence for attempted supply to get a total of seven years. It is then worked out on the formula, two-thirds of seven years minus two years. So if we could just quickly work out, that would be two-thirds of 84 months, which would be 52 months minus two years or 24 months, so that would be a total of 28 months that he would have to serve before being eligible for parole on those particular calculations.

HIS HONOUR: But that is 28 months dated from when?

MR BATES: It is 28 months dating from 13 October 1999. I am doing these calculations very quickly on the run, so - - -

HIS HONOUR: Yes, I appreciate that. Well, 28 months from 1999 is two years and four months, so we would have reached that my now, I think, would we not?

MR BATES: Yes, maybe I have those calculations wrong, but the formula is two-thirds of the sentence minus two years. So under the current sentence he has a sentence of - - -

HIS HONOUR: Is the mistake you made of treating them concurrent as distinct from cumulative sentences?

MR BATES: Yes. Yes, I think there is an error in the calculation, but it is difficult to do the calculations on the run. But, certainly, if the sentence was half - - -

HIS HONOUR: It is difficult for me to do the calculations anyway.

MR BATES: - - - or was brought back from the 10 years, obviously that would be reflected and the time before eligibility for release on parole and supervised release would also be brought back. In our respectful submission, we would certainly support expedition of this matter and we would see that as being the appropriate way of dealing with the situation that is confronting the Court.

Mr Pinkstone has a well-reasoned dissenting judgment from Auxiliary Justice Rolfe and, in our respectful submission, the way of dealing with the matter would be to expedite his appeal so that there can be a conclusion and a ruling as to whether special leave is going to be granted.

We would accept that based on that dissenting judgment, he has a reasonably arguable case for special leave and, in our respectful submission, the way of dealing with the matter would be to expedite that application for special leave and the situation could then be looked at afresh if he is granted special leave at that stage and the calculations could be done as to a likely sentence if he was ultimately successful for the offence of attempted supply and some assessment of a range of calculations of the sentence that he would serve. We would see that that - - -

HIS HONOUR: What do you say to the suggestion that the matter should be expedited to Melbourne where Mr Shirrefs is in practice?

MR BATES: We would support expedition to Melbourne and we would be in a position to appear at the Court's convenience in Melbourne. The only caveat I have is that I understand that another Crown Prosecutor from my office has been in contact with Mr Pinkstone's instructing solicitor, Mr Massey, and that instructing solicitor has advised that Mr Shirrefs was only briefed and they only had instructions to prepare the notice of appeal and the outline of submissions and their instructions do not go any further than that. But subject to that, we would certainly have no objection with the matter being expedited to Melbourne and we would be in a position to appear in Melbourne at the convenience of the Court.

HIS HONOUR: I would not be inclined to fix the place today but to expedite the hearing of the matter, and then allow to Mr Pinkstone in consultation with Mr Shirrefs and his solicitors and with the Registry relating to any available dates in Melbourne - I do not know of any available dates in Melbourne - to see if we can find an earlier date. Just excuse me for a moment. I will see if there is an earlier date.

I understand that there is a list in Melbourne on 20 June but that list is full, as I gather. In any case, 20 June is very close, it may be difficult to get the matter heard by that date, but that could possibly be explored. The point on the conviction is a relatively short point and, to some extent, a matter of impression. If anything is going to attract special leave, it would seem to me to be the conviction point rather than any sentencing points.

MR BATES: That is correct, your Honour.

HIS HONOUR: So that perhaps we can just leave that for the moment and hear what Mr Pinkstone has to say about it, but I appreciate the indication that you would co-operate with a listing and an early date. At the moment, I am inclined to think that this is a matter for expedition.

MR BATES: Yes.

HIS HONOUR: What do you say in relation to the issue of bail? At this stage, Mr Pinkstone says that if he cannot go out and earn, he will not be able to afford to have counsel appear to present his case and, in that event, the matter would simply have to proceed in the October list in Perth where he would have to present his case for himself.

MR BATES: We would say that there are a number of competing factors that have to be considered and that is but one of the factors that has to be weighed into the mix. We would rely upon the comments of Justice Dawson in Peters which were affirmed in United Mexican States v Cabal that grant of bail in a criminal case prior to the granting of special leave is very rare indeed. We would also note that in weighing the factors into the mix in this particular case, that Mr Pinkstone was not granted bail upon his arrest and before his trial because he was considered to be a flight risk at that stage. So this is a matter which is different to a case like Marotta where in that particular case the applicants for bail not only had a grant of special leave, but also had enjoyed bail after their arrest and pending their trial upon which they were convicted from which they subsequently appealed.

So we would say that it is a matter of looking at a number of factors and weighing the interests of the community and also the interests of Mr Pinkstone and applying the relevant principles. But we would submit that the fact that Mr Pinkstone says that he needs to earn money to instruct counsel to properly present his appeal, when one weighs that into the balance, it assumes a lesser significance than other significant matters. Perhaps the most significant matter we rely upon in this case is the matter we have already advanced and that is that even if he is successful, a conviction for attempted supply would be substituted and he would still be looking at a lengthy sentence, although the dates of release either on parole or community service would be wound back from the dates that are existing at the moment based on his current sentence.

The position is one where it is not a situation where in some cases there is going to be either an order for a retrial or no retrial if successful and the period in custody will be wasted in a sense and the appeal will be rendered nugatory. This is a case where he is going to have to still serve a significant amount of the sentence. In our respectful submission, expediting the appeal would ensure that he is still serving that part of the custody part of the sentence that he would serve in any event, even if his appeal was successful. I have not been able to do the calculations on the run. I obviously made an error when I did them before but - - -

HIS HONOUR: Yes, I think you might have been working on cumulation rather than the additional sentence.

MR BATES: Yes.

HIS HONOUR: Tell me this, there was an application to the Supreme Court of Western Australia to the Court of Criminal Appeal for bail in pursuance of what Justice Brennan said in Burgundy Royale and that court, referring to a case of Lyon, appeared, or the Registry appeared disinclined to list the matter because of an earlier holding in Lyon that no power exists in the Court of Criminal Appeal. But once the jurisdiction of this court is invoked, and in this case once it was the case that the offence was alleged to have happened at a Commonwealth place, federal jurisdiction was attracted and therefore it was not simply a matter of applying the State law according to its own terms, but applying to the State law as that State law would be adapted for federal jurisdiction pursuant to the Judiciary Act. Is that not correct?

MR BATES: As I understand it, the Judiciary Act would pick up the State law relating to bail and that State law relating to bail has no power and the Court has no jurisdiction to grant bail once they have dismissed an application for leave to appeal against conviction and sentence in the Court of Criminal Appeal.

HIS HONOUR: But there are provisions in the Judiciary Act that provide for the adaptation of State law as is necessary for federal jurisdiction because obviously a State law in referring to the Court will be referring to the State court, and there are cases which fall on each side of the line, cases concerning the State Suitors Fund Acts are not picked up for the High Court, but other State Acts dealing with other aspects of State procedure are picked up and adapted for proceedings in the High Court and that does not seem to have been considered in the applicant's case.

MR BATES: No, as I understand it, from his material, he was given a date but he did not choose to pursue that date that he was given by the Court of Criminal Appeal where this issue could have been ventilated. But I cannot take the matter any further.

HIS HONOUR: No.

MR BATES: I have read the decision of Royale which says there is no jurisdiction to grant bail in these circumstances.

HIS HONOUR: Yes, you would accept that he has exhausted his attempts in the State court to get bail and that, therefore, the matter is properly before this Court in the exercise of its own powers under the Constitution?

MR BATES: We would, your Honour. This Court has inherent jurisdiction to grant bail and we would accept that this Court properly has jurisdiction.

HIS HONOUR: The bottom line is that you say that there should be expedition, you are willing to co-operate with Melbourne, otherwise, the October list in Perth, and that the issue of bail should be delayed until after the consideration by a Full Court of whether Mr Pinkstone gets special leave or not?

MR BATES: That is correct. That is our submission, your Honour.

HIS HONOUR: Yes, very well, I understand that. Thank you very much.

MR BATES: Thank you, your Honour.

HIS HONOUR: What do you say in answer to that, Mr Pinkstone? It does look as though you would not be released immediately. It does look as though you still are looking at a period of additional sentence in respect of the attempt to supply the methylamphetamine and that that would take you beyond October.

MR PINKSTONE: Your Honour, in relation to just that one point, if I could just deal with that first, in the application for special leave P25 of 2003, Mr Shirrefs added the ground, the second limb of the order sought, in No (iii) that:

The Applicant's conviction upon count one be quashed and a conviction for attempting to supply a prohibited drug be substituted.

Now, as I say, that was suggested by Mr Shirrefs. However, it is my.....position that this honourable Court confirms that I did not supply the drug as detailed in the gravamen of count 1 on the indictment. I seriously believe a retrial according to the established law would be more appropriate.

HIS HONOUR: That is not the current basis of your application before this Court.

MR PINKSTONE: I understand that, your Honour. Also, in relation to Mr Bates' calculation on sentence, this was a matter I raised in my application for special leave against sentence. Michael Brazier, my co-accused was charged with the attempt to possess cocaine. His starting point was nine years. He served only 12 months in custody for this offence of attempt - only 12 months, your Honour - and that is detailed in the Court of Criminal Appeal - - -

HIS HONOUR: I think the suggestion was, was it not, that he was a very minor pawn in the enterprise?

MR PINKSTONE: His starting point, your Honour, was exactly the same as mine.

HIS HONOUR: He just went to the airport to pick up the goods, did he not?

MR PINKSTONE: No, he did not, actually. He sent someone in - I am sorry, your Honour, I just cut off then, but he sent his brother in, but there was substantial evidence that he had been doing a considerable amount of dealing before that. He was on parole - - -

HIS HONOUR: Yes, but we are not talking about all of his other offences; we are talking about these offences.

MR PINKSTONE: Yes, these offences, your Honour, but the point I am coming to is he was on bail and parole for two serious breaches of other serious offences before when he committed this offence. He subsequently only had to serve an additional 12 months in custody in relation to this offence. Now, Mr Bates is saying that I have to serve two years for count 3, at best another two years for count 1, if it is an attempt, they are to be run cumulatively, which offends the single transaction rule, and, your Honour, it was 14 years for the supply, reduced to 10 years in relation to co-operation. The nine years was reduced to six years for co-operation.

Now, nine years and 14 years are at the top end of the sentencing regime in relation to this type of sentence. Totality was not properly applied. Cumulation, I say, offends the principles of sentencing in this matter. As your Honour rightly said before, the transaction was exactly the same place, exactly the same day and I was under instruction. If I sent five parcels of drugs to five different States, does that mean I was going to serve five cumulative sentences for the same amount?

HIS HONOUR: Some judges might take the view that five supplies in five different States means an awful lot of people and, therefore, that you have to face the fact that they are separate offences to separate communities to separate groups of people with separate burdens on human beings and that that attracts separate and substantially different sentences.

MR PINKSTONE: I understand that, your Honour, but when you are under instruction to take a consignment to an airport and deliver it, I mean, it is the instruction of, "Yes, take it there and send the delivery", you know. But for the person to be multiply punished - and that is what is happening in this case, I am being punished twice for the same actus reus, for exactly the one actus reus, that lasted five minutes.

HIS HONOUR: Not really, they were two safes, one containing a substantial quantity of methylamphetamine and the other containing a substantial quantity of a different drug and a more dangerous drug on some views, namely, cocaine.

MR PINKSTONE: Yes, I understand that argument, your Honour, but, as I say - - -

HIS HONOUR: That argument has found favour so far in the Court of Criminal Appeal and at the trial.

MR PINKSTONE: Yes, but it just seems all the totality authorities I rely on in my written submissions in P30 all state that you will have one or two things. If you are going to impose the heaviest sentence possible, totality must be a consideration and partly cumulative sentences must be a consideration. Otherwise, you reduce substantially the term that would be imposed and run them fully cumulatively. In this case, we have had the heaviest sentence possibly handed down in this State for those type of offences and now, after Justice Murray's intervention, they are wholly cumulative upon each other. They are not partly cumulative at all; they are wholly cumulative. That was ground 6 in my application.

Your Honour, just another point I would like to raise, that Mr Bates raised the issue of no bail before trial. That is right, two years I spent in custody when my co-accused were both released on bail, even though they had both breached parole and bail when they committed this offence. That is a significant point that I have had to spend three years, seven and a half months in custody and I am still before the courts trying to have this matter finally determined.

In relation to risk of flight, I am now a minimum security prisoner. I have been sent to a prison camp within the week or the next two weeks. If I wish to abscond, if I have a propensity for absconding, I could just simply walk out of that prison camp, there are no fences. That is not why I am before the Court today. I am before the Court to say there is no risk there, your Honour.

In relation to the court's jurisdiction below, your Honour, when I did speak to the registry in that court, I did raise section 77U of the Judiciary Act in relation to stays when courts are exercising federal jurisdiction. Just for the record, your Honour, this jurisdiction in Western Australia was unaware of the Commonwealth Places (Application of Laws) Act until I brought it to their attention in 2000, further - - -

HIS HONOUR: Almost everybody overlooks federal jurisdiction, unfortunately. It does add a complication to these cases.

MR PINKSTONE: Yes, your Honour, that was a matter I actually helped - in the case of Cameron where I helped draft those submissions for that gentleman. If I could just finish up now, just on two points. Your Honour, of important significance is the affidavit that I referred to earlier at the beginning of these proceedings dated 19 April 2003. It is in exhibit "AJPINK-1" and at paragraph 36 - - -

HIS HONOUR: Now, which affidavit is this, which of the two?

MR PINKSTONE: Sorry, your Honour, it is "AJPINK-1".

HIS HONOUR: Yes, but annexed to which affidavit? The affidavit of 13 May or the earlier affidavit?

MR PINKSTONE: Sorry, your Honour, it is an affidavit sworn 19 April 2003.

HIS HONOUR: Yes, very well.

MR PINKSTONE: At paragraph 36.

HIS HONOUR: Yes.

MR PINKSTONE: Your Honour, I go into why exceptional reasons in this case warrant a grant of bail

HIS HONOUR: Yes, I have read all those about your family and your connections with Australia and matters of that kind.

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: But tell me this, Justice Roberts-Smith, in refusing you bail on an earlier occasion, referred to the fact that you had a pilot's licence and seaman's qualifications. Is that correct, or not?

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: Well, that was a factor that his Honour took into account then. Why would that not be still relevant to be taken into account now?

MR PINKSTONE: If you were a channel swimmer, your Honour, does that also negate the possibility of bail? I mean, I think that is - - -

HIS HONOUR: Australia is a long way - the only channel from Australia is to Timor and that is full of sharks and very, very deep.

MR PINKSTONE: Yes, your Honour

HIS HONOUR: Therefore I do not think you can swim from Australia. New Zealand is 1,200 miles, so that you have to go a long way. I do not think that is a relevant analogy. But the suggestion is that you would have a capacity to leave the country and you do not have any real connections with Western Australia, apart from this offence, is that correct?

MR PINKSTONE: That is correct, your Honour, and that is what I say, you know - section 117 of the Constitution says people are to be treated fairly and I find it just unbelievable because you have not got connections with a State and you are an Australian citizen that you can be denied bail because of your tenuous connections with the State.

HIS HONOUR: "Fairly" does not mean that you ignore practicalities. I mean, the practicalities are that you are not living in that community, with a family in that community, with a house in that community that makes it very unlikely that you will leave that community. If you were released to bail, presumably, you would leave immediately and go back to where your family and your connections are. That would only be natural.

MR PINKSTONE: Your Honour, I have in the affidavit actually set forth those particular two points. If I am granted bail and a permission to travel to Queensland, that would be my primary choice to stay with my brother who has sent a letter stating that in the miscellaneous - - -

HIS HONOUR: Yes, I read that letter and I read the employer's letter.

MR PINKSTONE: Yes. I also have friends here in Western Australia who visit me weekly in prison who also have a business and they are willing to let me reside at their place and also work at their business here in Perth, Western Australia, if that is more suitable to the Court.

Now, in relation to the pilot's and marine qualifications, that offends section 109 of the Constitution, your Honour. It is discriminatory to say that a person's qualification is a relevant factor to be taken into consideration for bail. I mean, it really, really offends 109, your Honour, in my respectful submission.

Your Honour, another point I would like to raise is just the time that I have spent - the last three yeas, seven and a half months, has been in a maximum security remand prison. Now, a remand prison is far more harsh than any other normal mainstream prison where other prisoners are allowed to go for rehabilitation - - -

HIS HONOUR: Yes, I saw that. Why is that so? A person is not convicted at that stage. Why should the conditions in remand be more severe than on conviction?

MR PINKSTONE: Your Honour, if you could peruse the documents in miscellaneous documents "E", the newspaper articles, in one particular from - - -

HIS HONOUR: Yes, I looked at those.

MR PINKSTONE: You have seen those?

HIS HONOUR: Yes, I looked at those.

MR PINKSTONE: Yes. Well, your Honour, I am the chairman of the Peer Support Group in Hakea Prison, the remand centre, and there has been a considerable amount of deaths. There is extremely harsh conditions, nothing like what you - - -

HIS HONOUR: Presumably, the reason behind it is the shortage of space in Australian prisons and the fact that it is thought by some that there may be a greater risk of flight where a person is facing trial than where a person has gone through the whole process, been tried and convicted, recognises that that will be on records internationally and just faces up to the obligation to serve his or her time.

MR PINKSTONE: Yes.

HIS HONOUR: But it does seem an odd thing that you suffer more severe conditions, though unconvicted and presumed innocent, than where you have been convicted and found guilty.

MR PINKSTONE: It is incredible, your Honour. I even tried to do a substance abuse course and I was denied because I was an appeal-class prisoner. So, I mean, for three and a half years I have tried to actually rehabilitate myself and do courses and they are not available to remand-class prisoners.

HIS HONOUR: Yes.

MR PINKSTONE: Your Honour, I raise one point which may be somewhat presumptuous and that is this honourable Court is the highest jurisdiction in Australia. If this honourable Court finds an error in law in the judgment of the court below, or even a prima facie error of law, the onus to establish exceptional circumstances, in my respectful submission, should be reversed, your Honour, to justify why I should spend more time in gaol if the conviction on which I am now imprisoned is actually questionable. As your Honour said in Sinanovic [1998] HCA 40 at page 1, paragraph 1:

Courts remain the ultimate protector of everyone in society, including prisoners who have no lawyers to speak for them.

Your Honour, you also reiterated a very similar comment in Cameron at paragraph 97. I say that, your Honour, respectfully in that if my conviction is questionable and it is prima facie reasons that it is and which has been accepted by the Court is a reasonably arguable case, then should I be kept in prison in a maximum security gaol - I am going to a minimum now - but should I be kept in prison for another year or two without recompense? There is no ability to ever get these years back.

HIS HONOUR: Yes, I understand all those submissions, but what do you say in relation to the point that Mr Bates raised concerning Justice Dawson's statement in Peters that it was extremely rare that bail was granted by this Court before this Court has granted special leave?

MR PINKSTONE: Your Honour, I say that I am before one of seven of the highest recognised judges in this country and I say that if a judge of this honourable Court appears to have a prima facie view that there is an error of law, then, as Dawson himself described in his judgment at 311, if it can be described as "reasonable". His actual words were if it can be described as "reasonable", the words he used.

HIS HONOUR: Yes, but can I tell you the problem. I sat in Peters when it came on appeal and in the Peters' Case the appeal was dismissed. Interestingly, Justice Dawson granted - - -

MR PINKSTONE: Unfortunately, Justice Dawson had a bad track record - - -

HIS HONOUR: - - - Justice Dawson granted bail to Mr Peters but then the matter came on appeal and the appeal was dismissed. So Mr Peters had to go back into prison to continue serving his sentence, and there is at least a question as to whether it is possible then to increase the sentence or whether the prisoner has been actually, in terms of law, serving the sentence, although not in custody. So it is complicated and that is the reason why there is a special impediment before special leave is granted.

MR PINKSTONE: Your Honour, I understand that and I believe your Honour yourself actually clarified that point in Pelechowski that was before the Court recently.

HIS HONOUR: In which one?

MR PINKSTONE: I think it is Pelechowski. I will just find it for you.

HIS HONOUR: Pelechowski.

MR PINKSTONE: Pelechowski and your Honour - - -

HIS HONOUR: I expressed some views but, as you have said, I am only one of seven Justices of the Court and I repeat, I granted Mr Cabal bail and the Full Court of the Court reversed that decision, so that I have to conform to the view which the Full Court has held. Otherwise, it does no good for you because you get bail from me and the matter might be reversed and then you have to be taken back into custody and that is a big drama.

MR PINKSTONE: Your Honour, I say the worst drama is to be incarcerated for year after year after year because of significant delays in the judicial system - - -

HIS HONOUR: Yes, you are going to get expedition from me, so you are certainly going to get that. Why is the view that Mr Bates has pressed upon me not the correct one, namely, that we should wait and see whether a Full Court gives you, either in Melbourne or in Perth, within the next few months special leave and then revisit your application for bail?

MR PINKSTONE: Your Honour, that did not apply in Marotta or Doggett on which Justice Callinan - - -

HIS HONOUR: I thought in Marotta and Bull, those prisoners had been granted special leave when they came before Justice Callinan.

MR PINKSTONE: Yes, you are correct in that, your Honour, you are, yes. Pelechowski was granted bail prior to special leave.

HIS HONOUR: That was a case of contempt of court.

MR PINKSTONE: That is correct, your Honour.

HIS HONOUR: It was not a criminal case in the ordinary sense.

MR PINKSTONE: No. Your Honour, as I say, this is the last bastion for the downtrodden to come before this Court and, as I said, if an error of law is on the face of the records, what is more offensive, to take someone's liberty that you can never, ever get back - I only have one go at this life and I am getting older - to take someone's liberty and say, "Oh, well, it is just a bit of bad luck if you are correct in the argument" or - - -

HIS HONOUR: You can take it from me, Mr Pinkstone, that that is not the way I approach cases.

MR PINKSTONE: Fair enough, your Honour, I understand that and I think that is as far as I can take your Honour today and I appreciate your time.

HIS HONOUR: This is an application for bail and other orders pending a hearing in this Court of proceedings brought by Mr Anthony Pinkstone ("the applicant").

The background facts

The applicant was tried in the Supreme Court of Western Australia on an indictment charging him with two offences against the Misuse of Drugs Act (WA) ("the MDA") as applied to the Perth airport by the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("the Commonwealth Places Act"). The offences charged were, (1) that the applicant at Perth airport had on 7 October 1999 supplied to one Yanko a prohibited drug, namely a quantity of methylamphetamine, contrary to s 6(1)(c) of the MDA and, (2) that the applicant at the same place and earlier on the same day had attempted to supply to one Brazier a prohibited drug, namely a quantity of cocaine, contrary to s 6(1)(c) and s 33(1) of the MDA.

After a lengthy trial in the Supreme Court of Western Australia the applicant was found guilty by a jury of both offences. He was convicted by the trial judge. That judge sentenced him to 10 years imprisonment on the offence of supply and six years imprisonment for the offence of attempted supply. He fixed an aggregate sentence of 12 years 31/2 months from 13 October 1999 when the applicant had first gone into custody. Eligibility for parole was refused by the trial judge.

The applicant appealed (or perhaps sought leave to appeal) against his convictions and sentences. That proceeding was heard by the Court of Criminal Appeal of Western Australia. On 28 March 2003 that Court, by a majority, dismissed the appeal: see Pinkstone v The Queen [2003] WASCA 66. (Murray J, with Wheeler J concurring, Rolfe AJ dissenting). The dissent of Rolfe AJ was confined to the applicant's conviction on the first count. In Rolfe AJ's view, on a proper application of the law, the evidence did not sustain a conviction of the offence in that count. The Court of Criminal Appeal allowed the applicant's separate appeal against sentence. It adjusted the aggregate terms of his sentence in a relatively minor way. However, it otherwise dismissed the applicant's challenge against his convictions following the majority opinion in that court and against the sentences that had followed.

The applicant has filed separation applications for special leave to appeal to this Court, both in relation to the decision on his convictions and on his sentences. In the ordinary course, without an order for expedition, those applications would be unlikely to be heard in 2003. The applicant therefore now moves this Court for expedition of the hearing of the special leave applications and for bail pending the hearing and determination of his appeal, if special leave is granted. These are separate applications. I will deal with them separately. However, they have an obvious relationship to one another.

The applicant also seeks, out of time, to add a new ground of appeal to his special leave application concerning his challenge to his sentences. He asks for the consolidation of the two applications. He states that, unless granted bail, he will be unable to pay the fees of his counsel in this Court. He seeks bail, inter alia, on that basis.

The application for expedition

I deal first with the application for expedition. The applicant says that he has a serious legal point to argue, one which attracted the support of one of the judges of the Court of Criminal Appeal. If successful, it would require resentencing that would effectively limit his sentence and provide for his early release from custody.

Upon the sentence following his conviction for supply of the prohibited drug, if it stands, the applicant would be eligible for release to community service at the earliest on 13 April 2005 and release to parole on 12 October 2005. By inference, if the applicant were to succeed in his application for special leave and in an appeal to this Court and were discharged of the offence of supply, but recharged and convicted of an offence of attempted supply of the first quantity of drugs, he would be resentenced in respect of such attempt. If he pleaded guilty to a new charge (or if he did not, was retried and later convicted of that offence), the new sentence would probably take his earliest release to community service or to parole somewhat beyond 2003. If he was acquitted of any new charge he would be entitled to immediate release. In the ordinary course, his special leave applications would be decided some time early in 2004.

The point raised by the application for special leave to appeal is an arguable one. Whether or not it attracts a grant of special leave would be a matter for the special leave Bench hearing the application. In the written case, the application is well argued. It arises in this way. The applicant dispatched two items by air cargo from Sydney airport to Perth airport. They were addressed to different recipients, who were to collect them at Perth airport, a Commonwealth place. As a result of earlier surveillance of the applicant's activities, arrangements were made for the cargo to be intercepted by police at Perth airport. Officers of Western Australia Police took over the cargo when it arrived in Perth.

A person purporting to act on behalf of the designated recipient of the first item (Mr Brazier) arrived at the Perth airport. He asked for that item. However, his request was made before the cargo was available. The recipient was so informed. He did not renew the attempt to obtain the cargo. This conduct was the basis of the charge of attempted supply of which the applicant was convicted.

Later in the same day, a person purporting to act for the designated recipient of the second item (Mr Yanko) presented himself at the Perth airport. He requested, and was given, that item. However, he did not receive it from the air company which was entrusted to supply it and who were the applicant's "innocent agents". In fact, he received it from police officers who were acting in their stead. Obviously, the police officers were not the applicant's intended or authorised agents. It is on this basis that the applicant argued in the Court of Criminal Appeal that he did not "supply" the drugs to the recipient, contrary to the MDA. That argument attracted the support of Rolfe AJ.

In the applicant's contention, it was the officers of the Western Australian police who actually "supplied" the drug to the recipient. This is, as the applicant agreed, a technical argument. However, if it is good in law, that is sufficient.

Enough will appear to indicate that the point is reasonably arguable. The respondent did not contend otherwise. The applicant is in custody. Success on the application and in a later appeal would be highly relevant to the residual length of the applicant's custodial sentence. Unless heard soon its utility would be lost to the applicant. The application therefore warrants early consideration by this Court.

On that basis, I will order expedition of the hearing of the special leave application. On that footing, the application would probably be heard in the Perth list of the Court in October 2003. However, if earlier arrangements can be made with the Registry of this Court, at the convenience of the Court and the parties, an earlier hearing might be arranged in a special leave list elsewhere than Perth. Counsel for the respondent indicated that if an earlier listing could be secured in Melbourne, where counsel retained for the applicant chiefly practises, that would be accommodated by the respondent. By inference, it would reduce substantially the costs to the applicant of his counsel's fees. I turn to the subject of bail.

The application for bail

Applicable principles: This Court has the power to grant bail as an incident of its appellate jurisdiction conferred by s 73 of the Constitution. Pursuant to the Constitution, the Court has the authority to do all things necessary to effectuate its appellate jurisdiction, including the power to stay orders that were or might be the subject of its appellate jurisdiction and to grant bail so as to make an appeal effective. Nevertheless, the Court has said on many occasions that bail should only be granted by this Court in exceptional circumstances: see Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 518-519, Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265 at [15] and United Mexican States v Cabal (2001) 209 CLR 165 at 181 [40].

The convictions and sentences by courts below this Court are not to be regarded as provisional pending the completion of an application for special leave or a final appellate hearing in this Court after special leave is granted. To secure a hearing of an appeal in this Court, which is not simply a higher general court of criminal appeal, special leave is necessary. That word makes it clear that something "special" must be demonstrated about the case.

Obviously, in considering whether to grant bail regard must be had to an applicant's estimated prospect of success in this Court, the imminence of the expiry of any sentence so that the custodial part of the sentence would be completed before the decision, and other relevant considerations, such as the risk of flight. The grant of bail before the appellate jurisdiction of this Court has been engaged (by the grant of special leave) must be treated as truly exceptional. A very strong case is required before the grant of special leave for bail to be provided at that stage: see Peters v The Queen (1996) 71 ALJR 309 at 310, Cabal (2001) 209 CLR 165 at 182 [43]; see also Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265 where Callinan J granted bail after the applicants had secured special leave to appeal.

Application in the State court: This is the condition in which the applicant's request for bail now comes before me. Special leave has not yet been granted. However, before seeking bail in this Court, the applicant applied to the Court of Criminal Appeal of Western Australia for bail. He did this in deference to the remarks of Brennan J in Jennings v Burgundy Royale Investments Pty Limited [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 684. The Court of Criminal Appeal had earlier decided that it had no jurisdiction to grant bail in such cases. It had done so by reference to the language of the Bail Act 1978 (WA) read according to its own terms: see Lyon v The Queen [2001] WASCA 197. In the light of that decision, the registry of the Court of Criminal Appeal appears to have been reluctant to accept that the court had jurisdiction to grant bail to the applicant.

No consideration appears to have been given in the registry of the Court of Criminal Appeal to the fact that, in this case, the applicant's matter was in federal jurisdiction. Western Australian courts were exercising federal jurisdiction at the trial because the Western Australian Act (the MDA) only applied to the applicant by virtue of the Commonwealth Places Act. In respect of bail, in support of the applicant's proceedings in this Court, there was an additional basis for the application of federal jurisdiction by virtue of the application to this Court. Because this point seems to have been overlooked (as unfortunately it often is) no consideration appears to have been given to any operation of State laws in this case adapted by force of the Judiciary Act 1903 (Cth) to render those laws applicable to federal jurisdiction: cf Solomons v District Court of New South Wales [2002] HCA 47; (2002) 76 ALJR 1601 at 1603 [7], 1608 [37], 1627 [139].

It is unnecessary for me to decide whether the decision of the Court of Criminal Appeal of Western Australia in Lyon applied to a bail application by the applicant in this case. Clearly, the applicant exhausted his entitlements to bail in the State court. This was accepted by the respondent. He has now engaged the powers of this Court. It has undoubted power to grant bail for itself. The applicant has engaged that power.

Earlier in the proceedings, when the matter was before the courts of Western Australia, the applicant applied for bail to single judges of that court. He was refused bail by Heenan J: see Pinkstone v The Queen [2000] WASC 199. Later he was refused pre-trial bail by the trial judge, Roberts-Smith J: see Pinkstone & Ors v The Queen [2001] WASC 321. Roberts-Smith J refused bail on the basis that, although the applicant's trial had been seriously delayed by the state of the criminal trial list in Western Australia, there were unacceptable risks in the grant of bail.

The risks mentioned by Roberts-Smith J included that the applicant had made attempts to escape apprehension by police before his arrest, that he had used false passports in the past, that he had expertise as an air pilot and qualifications as a seaman and that he had previously engaged in extensive international travel and therefore had presumed international connections. These considerations led Roberts-Smith J to say:

In my view the risk that he would abscond if granted bail must be so high as to be almost certain. I can envisage no conditions, no matter how strict, short of remanding him in custody, which would reduce that risk to any acceptable level.

Bail presently refused: In the present application I am not bound by the assessment of another judge in another court at an earlier time and on different evidence. I take into account the fact that the applicant has, on any view, now served a large part of his sentence. I also take into account the fact that the applicant is an Australian from an established family, that he has a fiancée who is an Australian citizen, that he has served part of his sentence in maximum security, that he has no previous history of absconding from bail and that he is now retained in a minimum security facility. I have read the correspondence offering the applicant employment if he were released on bail. I have not overlooked the fact that the applicant's request for bail is connected, in his submission, to his request to be able to earn sufficient funds to enable him to pay for counsel of his choice to argue his applications in this Court and, if special leave is granted, his appeal to this Court.

However, when I weigh the still relevant considerations mentioned in the earlier bail applications, especially the past conduct involving a false passport and the earlier evasion of authority and take into account the seriousness of the offences of which the applicant was convicted, the technical nature of the point raised by him which does not amount to an assertion of innocence and the applicant's otherwise lack of links with Western Australia to which he would have to return if special leave were refused, or being granted, if an appeal were rejected, my view is that bail should not be granted at this time.

If, however, the applicant were later granted special leave by this Court, he could renew his application for bail. It would then be considered taking into account that added ingredient favourable to the grant of bail: see Cabal (2001) 209 CLR 165 at 182 [42]-[43]. At that time, I would expect the respondent to have available to any Judge of this Court hearing such application, the precise details of the eligible release dates of the applicant to community service or to parole on the assumption that he was successful in this Court.

Amendment and consolidation of applications

Two remaining points must be dealt with before departing from this application. The applicant applied, although out of time, to have leave to amend his application for special leave in respect of the sentencing appeal to raise an additional complaint against his sentence. The respondent raises no objection to that amendment. I will grant that leave. However, I have cautioned the applicant that this Court does not ordinarily become involved in sentencing appeals and that he might be well advised to concentrate in his special leave application on his application against conviction: cf Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 337. I order the consolidation of the two applications for special leave to appeal now before this Court.

Legal representation of the applicant

Lastly, the applicant suggested that unless he were granted bail and able to earn funds to pay counsel, he would not be in a position to afford the fees of his chosen counsel for appearances in this Court. I am aware of the disadvantages that some prisoners face in securing adequate or any legal representation on appeals to a court of criminal appeal. Those difficulties are often enlarged in applications to this Court. I referred to them in Cameron v The Queen (2002) 76 ALJR 382 at 400 [96]-[97] 187 ALR 65 at 89-90. So far, the principle in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 does not, in terms, apply to appeals but only to trials.

I will therefore say what Gaudron J and I said on the application for special leave by Mr Cameron, which Mr Cameron argued successfully in person. If the applicant truly cannot afford counsel to argue the application for special leave, it would in my view be appropriate for the Legal Aid authorities to consider the applicant's request for assistance or for the Western Australian Bar Association to consider the provision to him of pro bono assistance. Especially would this be so if the applicant were granted special leave. The point to be argued has attracted the dissenting opinion of Rolfe AJ. The respondent correctly accepts that it is reasonably arguable. It would be highly desirable, and in the interests of justice, that it should be properly argued before this Court. Potentially, it affects the liberty of the applicant in a significant way. That is another matter to be taken into account.

Orders

For the reasons that I have given, the orders that I make are:

(1) Order expedition of the hearing of the applicant's applications for special leave to appeal to this Court;

(2) Order consolidation of those applications;

(3) Direct that the application be heard during the special leave list of the Court in Perth in October 2003 if no earlier date can be found by the Registry acceptable to both parties;

(4) Refuse bail; and

(5) Certify for the appearance of counsel in chambers.

Are there any other orders that you seek at this time, Mr Pinkstone?

MR PINKSTONE: There are not, your Honour, and, again, I thank you very much for your time today.

HIS HONOUR: Mr Bates, are there any other orders that you seek?

MR BATES: No, your Honour.

HIS HONOUR: Thank you for your assistance to me, Mr Bates. The Court will now adjourn.

AT 12.39 PM THE MATTERS WERE CONCLUDED