Palankay v The Queen [2013] HCATrans 160 (26 July 2013)

Last Updated: 26 July 2013

[2013] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M54 of 2013

B e t w e e n -

JASON DAVID PALANKAY

Applicant

and

THE QUEEN

Respondent

Bail application

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 26 JULY 2013, AT 12.25 PM

Copyright in the High Court of Australia

HIS HONOUR: The applicant, Jason David Palankay, pleaded guilty before Judge Taft in the County Court of Victoria to one count of using a false document and five counts of obtaining property by deception.

Before he was sentenced, Mr Palankay sought to withdraw the pleas of guilty and enter pleas of not guilty to each count. Chief Judge Rozenes heard the application to change the pleas but dismissed it. Mr Palankay was then sentenced by Judge Taft to a total of three years ten months’ imprisonment. A non-parole period of two years six months was fixed.

Mr Palankay sought leave to appeal to the Court of Appeal against conviction and sentence. Weinberg JA refused both applications and, pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic), Mr Palankay then elected to have them further heard and determined by the Court of Appeal. On 26 April 2013, Harper and Osborn JJA refused both applications for leave to appeal.

On 31 May 2013, Mr Palankay filed an application in this Court seeking special leave to appeal against the orders made by the Court of Appeal on 26 April 2013 and a short extension of time within which to make that application. By summons filed on 4 July 2013 Mr Palankay seeks bail pending the hearing and determination of his application for special leave. He asks that his application be determined on the papers without oral argument. The Director of Public Prosecutions has filed written submissions opposing the grant of bail but accepting that the matter should be decided without oral argument.

The application for bail should be refused.

The application for bail pending the hearing and determination of an application for special leave to appeal to this Court “invokes an extraordinary jurisdiction of this Court” - Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 517; [1983] HCA 13. Whether that power may be exercised only “to preserve from futility the exercise of the Court’s jurisdiction to grant special leave to appeal and to allow an appeal thereafter” - Chamberlain [1983] HCA 13; (1983) 153 CLR 514 at 518 need not be decided. It may be assumed, without deciding, that the discretion to admit the applicant to bail is not so confined. Nonetheless, the power to admit to bail pending hearing and determination of an application for special leave should not be exercised unless exceptional circumstances are shown - cf In re Cooper's Application for Bail [1961] ALR 584.

In the present case, the applicant was convicted on his pleas of guilty, pleas which he later sought to withdraw. His application for leave to withdraw the pleas has failed at first instance and twice in the Court of Appeal. The central point at which the application has been found to fail is one of fact. Chief Judge Rozenes found that the applicant had decided to plead guilty before Judge Taft spoke of the favourable sentencing consequences that may follow from such a plea. That finding of fact was not disturbed on appeal. It cannot be said, in these circumstances, that it is likely that Mr Palankay will be granted special leave to appeal against conviction.

As for the application for special leave to appeal against sentence, an appeal to this Court against sentence would enjoy prospects of success only if Mr Palankay could first show that the Court of Appeal was wrong to decide that the sentence imposed on his was not manifestly excessive. It would then be necessary for him to show that the Court of Appeal was wrong to conclude that, in any event, no lesser sentence should be imposed. It is not shown to be likely that Mr Palankay would be granted special leave to appeal against the sentence imposed upon him.

Mr Palankay does not demonstrate that he should be admitted to bail pending the hearing and determination of his application for special leave. There are no circumstances warranting such an order.

The application for bail is dismissed.

AT 12.30 PM THE MATTER WAS CONCLUDED