Court of Appeal (ACT)|2016-08-04|Before: Penfold, Burns and Jagot JJ

Australian Capital Territory v Lewis [2016] ACTCA 34 (4 August 2016)

The appeal be dismissed.
The first appellant pay the respondent's costs of the appeal, as agreed or taxed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - appeal from single judge of the Supreme Court - primary judge held that sentence of periodic detention not extended where respondent had not performed periodic detention whilst on bail - whether respondent failed to perform periodic detention for the purposes of s 58(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) - whether grounds for a permanent stay of respondent's sentence existed - appeal from discretionary order for costs.

Bail Act 1992 (ACT), ss 5, 6, 6(1)(b), 6(2), 6(2)(a), 6(2)(b), 9E, Dictionary pt 1 (definition of "accused person")

Crimes (Sentence Administration) Act 2005 (ACT), ss 40, 42, 55, 58, 58(1)(a), 58(3)(c), 58(4), 58(4)(b), 59, 66, 901(2)

Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)

Periodic Detention of Prisoners (Amendment) Act 1985 (NSW)

CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343

Lewis v Australian Capital Territory [2015] ACTSC 167; (2015) 301 FLR 102

Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198; (2013) 280 FLR 118

Quzag v R (No 2) [2015] ACTCA 10

The Queen v Quzag [2015] ACTCA 36

United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631

Magistrates Court of the Australian Capital Territory (Second Appellant)

1. I have had the opportunity to read in draft the judgment of Burns and Jagot JJ. I agree with the orders their Honours propose, although for reasons that are in some respects significantly different.

2. As noted by their Honours, the first issue for determination is the operation of s 58 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Administration Act) as in force in 2009. That provision has been repealed but retains a transitional operation. It extended a sentence that includes periodic detention if the offender "fails to report to perform periodic detention" for a detention period.

Failing to perform periodic detention - extension of periodic detention period

(1) This section applies to an offender for a detention period if -

(a) the offender fails to report to perform periodic detention for the detention period and has not been given approval under section 55 not to perform detention for the detention period; or

(4) For each detention period of the offender to which this section applies -

(a) the offender is taken not to perform periodic detention; and

(b) the periodic detention period of the offender's sentence of imprisonment, and the term of the sentence, are automatically extended by 1 week.

4. In the current case, the Sentence Administration Board (the Board) purported to cancel the respondent's periodic detention in June or July 2008 after earlier failures to attend; he was arrested in January 2009 and detained in full-time custody for nearly three months. After that, in late March 2009, he was granted bail by a judge in the Supreme Court (the bail judge) pending the determination of proceedings he had instituted challenging the lawfulness of that custody, was released from full-time custody, and did not thereafter report to perform periodic detention.

5. In October 2013, the respondent's challenge to the lawfulness of his custody was determined. The judge found that the Board's decision to cancel the periodic detention was invalid and should be set aside because the Board failed to give the respondent an opportunity to appear before the Board when it considered his non-attendance for periodic detention on several occasions.

6. In 2015, another judge (the primary judge) determined an application by the respondent for:

(a) a declaration that the original imprisonment order and periodic detention order made against him in January 2008 had both expired; or

(b) alternatively, an order permanently staying that sentence of imprisonment and associated periodic detention order.

7. The primary judge, among other things, found that the sentence of imprisonment had expired and that the periodic detention in respect of that sentence had ended. The orders giving effect to those conclusions are challenged in this appeal.

8. I agree with Burns and Jagot JJ that s 58(1)(a) of the Administration Act applies to a person who does not report to perform periodic detention when there is an extant legal obligation to do so, and I also agree with their Honours that such an interpretation of the provision is available from the provision itself read in context and does not require any extra or qualifying words to be read in.

9. Section 42(1) of the Administration Act specifies that an offender "must serve periodic detention in the offender's periodic detention period in accordance with this part". An offender's periodic detention period is defined by s 40 as the period originally ordered to be served by periodic detention, or that period as extended under Ch 5 of the Administration Act. It is clear, for instance, that if an order to an offender to serve periodic detention had been stayed under s 216 of the Magistrates Court Act 1930 (ACT) by the filing of an appeal against that order, s 58(1)(a) would not apply during the term of that stay because the offender would not have a legal obligation to attend. On the other hand, the stay would have ensured that the sentence order did not continue to run such that in due course it might have expired without any further performance of periodic detention or return to custody.

10. However, in the current case I am not persuaded that after the respondent was released by the bail judge, he was no longer required to perform periodic detention and therefore that his subsequent non-attendance did not activate s 58(4).

11. That is because I consider that, consistent with the decision of the Court of Appeal in The Queen v Quzag [2015] ACTCA 36, the grant of bail to the respondent made in March 2009 was probably beyond power and accordingly not effective to override either the respondent's legal obligation to perform periodic detention or, probably, his obligation to remain in the full-time custody into which he had been taken after the Board had cancelled his periodic detention.

12. Alternatively, it might be argued that the grant of bail could only have applied to the full-time custody, given that it was only the full-time custody, or at least the cancellation of the periodic detention order that resulted in the obligation to serve full-time custody, that was the subject of the respondent's challenge. On this analysis, there would be nothing particularly absurd about the co-existence of a grant of bail (from full-time custody) and an obligation to perform periodic detention - and since there was at that point, apparently, no challenge to the periodic detention as such, that might in fact have been a sensible state of affairs (subject only to the need for it to be explained to the respondent at the time).

13. On 27 March 2009, when the bail judge purported to grant bail to the respondent, the relevant provisions of the Bail Act 1992 (ACT) were as follows:

When may bail be granted?
- (1) An accused person may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged.

(2) However, an accused person who is in custody in relation to an offence must not be granted bail in relation to any period when -

(a) the person is in custody for another offence or reason in relation to which the person is not entitled to be granted bail; or

(b) the person is serving a sentence of imprisonment.

(1) This section applies if -

(a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and

(b) an appeal is pending in relation to the conviction or sentence.

(2) A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

appeal includes an appeal against a decision on appeal.

14. The Dictionary to the Bail Act defined "accused person" to include:

(a) a person charged with, convicted of, or found guilty of, an offence; and

(b) a person mentioned in section 8 (1) (c), (d) or (e); and

(d) a person subject to an order under the Crimes (Sentencing) Act 2005, section 17 (Non-conviction orders - general); and

(e) a person in relation to whom an appeal relating to an offence is pending; and

(f) a person in relation to whom a new trial has been ordered to be held for an offence.

15. The respondent was an accused person under para (a) of the definition in the Dictionary. However, because he was serving a sentence of imprisonment as mentioned in s 5(2)(b), s 5(2) provided that he was not to be granted bail.

16. Section 9E qualified the effect of s 5(2) by permitting a grant of bail to a sentenced prisoner while an appeal was pending in relation to the conviction or sentence. There was no appeal pending in relation to the respondent's conviction or sentence, although there was the challenge to the lawfulness of the imprisonment referred to above.

17. In Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631, bail had been granted to a person who appealed from a sentence of periodic detention imposed on appeal to the NSW District Court; the appeal was later withdrawn as incompetent, and proceedings for declarations and prerogative relief in the nature of certiorari were immediately filed. In considering the effect of the grant of bail on the sentence of periodic detention, the plurality (Mason, Murphy, Wilson and Deane JJ) said at 636:

Section 8 of the Periodic Detention of Prisoners Act expressly provides that the sentence "shall commence" on the date specified in the order imposing the sentence. There is nothing in the Act which qualifies that clear provision. That being so, its effect is that the period or term of imprisonment which the person sentenced is required to serve is the period or term commencing on that designated date.

The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run (In re Court (1871) 2 QSCR 171; Wilson v. Attorney-General (1938) NZLR 496). It becomes necessary to determine whether the orders for bail which were purportedly made by the Supreme Court operated to prevent the commencement of the term of imprisonment or to interrupt it after it had commenced. Two subsidiary questions immediately arise: the first is whether there was any power under the Bail Act 1978 (N.S.W.) to make the orders in question; the second is as to the effect of such orders, assuming them to have been validly made.

18. The plurality then examined each grant or extension of bail to determine whether it was within the powers of the Court of Appeal under the Bail Act 1978 (NSW). The validity of the grants of bail being accepted, the plurality found that the several grants of bail made in that case did not stop the sentence running, and that the Court of Appeal which dismissed those later proceedings did not have power to re-set the sentences. Thus the plurality concluded that the sentence had expired.

19. However, that decision depended on the absence of any provision in the Periodic Detention of Prisoners Act 1981 (NSW) qualifying the provision specifying the starting date for a term of periodic detention. The Act was amended in 1985 to provide for a term to be extended where a person had failed to report as required (Periodic Detention of Prisoners (Amendment) Act 1985 (NSW)), but before that, failures to attend had been addressed in the principal Act by provisions for forfeiture of available remissions or prosecution for an offence (as to which an effective grant of bail might have provided a defence - s 33(2)). There was no provision for a sentence to be extended.

20. The decision in Whan v McConaghy does not require a conclusion in this case that a failure to report for periodic detention in reliance on a grant of bail did not extend the term of the periodic detention. What it does require is attention to the effect of an order granting bail in the particular circumstances. If the grant of bail in this case of itself had been effective to remove the respondent's obligation to perform his sentence, then s 58(4) would not have operated to extend the term of his periodic detention.

21. However, the effect of The Queen v Quzag [2015] ACTCA 36 is that the power to grant bail to the respondent in the circumstances obtaining in 2009 would only have arisen if the respondent's sentence was stayed (an order that might well have been appropriate in the circumstances). In that case - that is, once the sentence had been stayed - neither s 58(4) of the Administration Act, nor the sentence itself, would have operated while the stay continued. Without a stay, however, no basis for the 2009 grant of bail seems to be identifiable.

22. In the absence of an argument that the grant of bail should be interpreted as evidencing an unarticulated but nevertheless effective stay order, I cannot see that there is any basis to treat an order granting bail that was itself probably beyond power as having, in effect, also stayed the order that otherwise prevented the granting of bail.

23. I note also that a grant of bail, even if validly made, may not entitle a person to immediate liberty if the person has been remanded in custody on another charge.

24. It is not uncommon, at least in this jurisdiction, for an accused person who has been granted bail on a particular charge to be remanded in custody in respect of a new (and often more serious) charge without any formal revocation of the original grant of bail (sometimes this may be because neither the judicial officer who remands the person in custody nor the prosecutor is at the time aware that the person has previously been granted bail in respect of quite separate offences). Nor did the Bail Act at the relevant time provide for any automatic revocation of an existing grant of bail if an accused person was remanded in custody (or even sentenced) for an offence unrelated to the existing grant of bail. If the charges that led to the remand in custody are dropped (or the sentence is completed), the person may then be entitled, without any further grant of bail in respect of the separate offences, to be released under the original bail order. That is not the case here - clearly, the bail order was made in connection with the sentence that was to be served by periodic detention - but it does indicate that there is nothing inherently impossible about the co-existence of a grant of bail and a separate obligation to submit to a form of custody.

25. Thus, I do not agree that the issue is whether an offender can "fail to report to perform periodic detention" while also the beneficiary of a grant of bail.

26. First, as already noted, there is the possibility of a bail order co-existing with an unrelated obligation to perform periodic detention (for instance, bail granted to a person arrested for a minor offence committed during the term of a periodic detention sentence but not while the person is actually performing periodic detention). However, the issue whether an offender can "fail to report to perform periodic detention" under a sentence for an offence while on bail granted in respect of the same offence does not seem to arise if it is accepted that a person can only "fail" to report if they have an obligation to report. If there is no scope for an offender to be on bail in respect of a sentence of periodic detention while that sentence is running, then there is no issue about the relationship between an extant obligation to perform periodic detention and an effective entitlement to be at liberty under a grant of bail in respect of that same sentence. If a valid grant of bail in respect of the sentence depends on the staying of the sentence (as it appears to do under the Bail Act) whether expressly or implicitly (which, under The Queen v Quzag does not appear to result from a grant of bail as such), then there will be no extant obligation to perform the sentence, and no absurdity in the operation of s 58.

27. As noted, I do not disagree with Burns and Jagot JJ in their interpretation of s 58 as not applying to a non-attendance at periodic detention by a person who is not obliged to attend. I do, however, disagree with the proposition that this interpretation emerges from what would otherwise be an absurd operation for s 58. The absurdity is found in the purported grant of bail in respect of a custodial sentence (despite the provisions of the Bail Act) while the person is serving the custodial sentence and while that sentence has not been stayed. That is what creates a conflict between a person's obligation to serve any form of custodial sentence and his or her entitlement to liberty under a grant of bail in respect of that sentence.

28. Statutory interpretation is difficult enough at the best of times. It is inevitably further complicated if legislative provisions are required to be read so as to accommodate idiosyncratic attempts to exercise non-existent powers or failures to comply with other applicable legal requirements.

29. The validity of the bail judge's bail order was not argued on this appeal. If it had been, the challenge to the respondent's imprisonment might, by means of arguments similar to those canvassed by the plurality in Whan v McConaghy, have been treated as an appeal for the purposes of s 216 of the Magistrates Court Act (and therefore staying the sentence) and s 9E(1) of the Bail Act, thereby permitting a grant of bail subject to special or exceptional circumstances being shown. However, there is no suggestion that such an approach was taken on the bail application.

30. In the absence of such argument on the appeal, I refrain from concluding that the bail order was made without power, and accordingly refrain from any finding about whether the respondent should have been at liberty or whether he did have an ongoing obligation to perform periodic detention. However, for the reasons outlined above, I have not been persuaded that s 58 of the Administration Act did not apply to his sentence and that the sentence has accordingly expired.

31. There is a further complication in the case, arising from the fact that when the respondent was granted bail, he was in custody as a result of his periodic detention having been cancelled by the Sentence Administration Board. As noted at [5] above, the respondent's challenge to the lawfulness of his full-time custody resulted in the setting aside of that cancellation as a result of a failure to accord the respondent natural justice before the cancellation decision was made. The impact on the respondent's periodic detention obligations of setting aside the cancellation decision in 2013 is not clear to me, but for current purposes need not be addressed.

32. In the circumstances, and in particular noting the absence of submissions about the effect or efficacy of the bail judge's grant of bail, it would be inappropriate for me to express any final conclusions about appeal grounds 1 and 2.

33. However, I do agree with Burns and Jagot JJ that the primary judge would have had a strong case for permanently staying the respondent's sentence if he had concluded that the sentence had not expired.

34. The appellant conceded that a superior court has power to stay a sentence in certain circumstances (United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 at [37] and [38]). Such a court also has power to stay proceedings to prevent an abuse of process in certain circumstances, including where continuation of the proceedings "would be 'so unfairly and unjustly oppressive' as to constitute an abuse of process" or where continuation of the proceedings "would involve unacceptable injustice or unfairness", such power to be exercised only in "an exceptional or extreme case" (Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 392).

35. The current proceedings, of course, were brought by the respondent, but apparently in anticipation of the corrections authorities seeking to enforce the outstanding sentence that has been the subject of these and earlier proceedings. I cannot see that the appellant was required to refrain from seeking a stay until he was actually incarcerated by administrative action, so I cannot see that the slightly unusual procedural circumstances of this case should exclude the making of a stay order if that is otherwise appropriate.

36. I agree that it would be appropriate to grant a stay, for the reasons set out by their Honours, but also because it is a consequence of the arguments I have set out in relation to the operation of s 58 that if the respondent did "fail" to perform periodic detention within the meaning of that provision, it was at least in part because he was misled by the making of a bail order that was not, however, effective to relieve him of the obligation to perform that periodic detention. To that reason for granting a stay may be added the contributions to the current unsatisfactory situation made by the failure of the Board to accord procedural fairness to the respondent before cancelling his periodic detention order, and by the resource shortages in this Court that led to long delays in finalising the respondent's challenge to that cancellation.

37. Certainly it was the respondent who initially breached his periodic detention obligations, but he could not have expected that, more than seven years later, periodic detention would have been abolished but the status of his sentence would still be in doubt.

38. Accordingly, I would reject appeal ground 3 and would join in any permanent stay of the execution of the respondent's sentence of imprisonment.

39. I also agree with Burns and Jagot JJ, and for the reasons they give, that appeal ground 4, relating to the costs order made by the primary judge, should be rejected.

40. Accordingly, I agree that the appeal should be dismissed, and I consider that the first appellant should pay the respondent's costs.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

The automatic extension of periodic detention issue

41. The principal issue in this appeal is the construction of s 58(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) (the Administration Act). Section 58(1)(a) applies if an offender for periodic detention:

fails to report to perform periodic detention for the detention period and has not been given approval under section 55 not to perform detention for the detention period.

42. If s 58(1)(a) applies then, by s 58(4), for each detention period the offender is taken not to have performed periodic detention and the periodic detention period of the offender's sentence of imprisonment, and the term of the sentence, are automatically extended by one week.

43. While the statutory provisions providing for periodic detention have been repealed (see the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) (the Amendment Act)), by the transitional provisions to that Act, the periodic detention provisions remain in force and continue to apply to an offender as if the Amendment Act had not been made (see s 901(2) of the Administration Act).

44. In the present case the question whether s 58(1)(a) of the Administration Act applies to the respondent is critical because, if it applies, the respondent's periodic detention has been automatically extended under s 58(4)(b) with the consequence that the respondent remains liable to perform such periodic detention, subject to the operation of s 902 of the Amendment Act which require the ACT Sentence Administration Board (the Board), if it decides the offender has breached any of the offender's periodic detention obligations, to refer the offender for re-sentencing by the sentencing court (in this case, the Magistrates Court which sentenced the respondent to periodic detention on 24 January 2008).

45. The answer to the question whether s 58(1)(a) applies depends on the meaning given to the words "the offender fails to report to perform periodic detention" in that provision.

46. The question arises in this way. As noted, the respondent was sentenced to periodic detention on 24 January 2008. It is not in dispute that he failed to report to perform periodic detention on a number of occasions between 1 February 2008 and 13 April 2008 and after 16 May 2008 and, in the same period, was subject to directions under s 58(3)(c). As a result, the Board cancelled the respondent's periodic detention and ordered that he serve the balance of his sentence by full-time imprisonment. The respondent was arrested on 5 January 2009 and was detained in prison from that date until 27 March 2009. On 25 March 2009 the respondent commenced proceedings challenging the lawfulness of his imprisonment. On 27 March 2009 the former Chief Justice, Higgins CJ, ordered that the respondent be brought before the Court and also ordered that he be released on bail subject to certain reporting conditions. No order was sought or made staying the original sentence for periodic detention. While the proceedings challenging the lawfulness of the respondent's imprisonment were heard in July and November 2009, judgment was not delivered until 1 October 2013 (Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198; (2013) 280 FLR 118). In that case it was held that the decision of the Board to cancel the respondent's periodic detention was invalid and should be set aside.

47. Given the grant of bail on 27 March 2009, the respondent did not report for periodic detention thereafter. The appellant's position is that because the sentence of periodic detention had not been stayed the respondent was still subject to the periodic detention order despite the grant of bail. Accordingly, he failed to report to perform periodic detention from 27 March 2009 with the consequence that, under s 58(4)(b), the respondent's sentence has been automatically extended by one week for each such failure (it being unnecessary to calculate the precise number of weeks by which the respondent's sentence has been extended, it being common ground that if the appellant is correct, s 58(4)(b) operates for at least some periods to render the respondent liable to further periodic detention). The respondent's position is that on and from the grant of bail he was not subject to any obligation to perform periodic detention and thus cannot be said to have failed to report to perform periodic detention. Accordingly, s 58(1)(a) does not apply and, thereby, s 58(4)(b) is not engaged.

48. The primary judge, who was burdened with not only this but other issues, concluded that s 58(1)(a) did not apply (Lewis v Australian Capital Territory [2015] ACTSC 167; (2015) 301 FLR 102) stating at [89] that:

In the present case, once the plaintiff was granted bail, he was not obliged to attend at the Centre and report to serve either full-time imprisonment or periodic detention. To require him to do so would be absurd. Such an hypothesis involves the proposition that the plaintiff would need to present himself at the Centre, explain that he was on bail and then be sent home, week in, week out, and all this in addition to reporting under his bail conditions.

49. The appellant contends that the primary judge was in error. According to the appellant, s 58(1)(a) is concerned only with the fact of an offender not reporting to perform periodic detention. It is not concerned with the reason the offender did not report whether it be by the grant of bail or otherwise. In any case where the offender does not report the offender is deemed not to have performed the periodic detention (s 58(4)(a)) and the sentence is automatically extended by one week (s 58(4)(b)). The only exception to this is where an offender has been given approval under s 55 not to perform the periodic detention for a period. This, submitted the appellant, is consistent with the decisions in Quzag v R (No 2) [2015] ACTCA 10 (Quzag [2015] ACTCA 10) and R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29 (Carrion). Further, the primary judge's reliance on Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631 (Whan) was misplaced. Whan (at 635) held only that the grant of bail means that the accused person is to be at liberty despite the sentence but the sentence, like any court order:

must operate in accordance with its terms as interpreted in the context of any statutory provisions pursuant to which it is imposed or framed.

50. In the present case, the appellant submitted, s 58(4)(b) is an express legislative provision which extends the periodic detention of the respondent (in contrast to the circumstance in Whan).

51. We are not persuaded by the appellant's submissions. As the parties recognised, this case depends on the meaning to be given to the words "the offender fails to report to perform periodic detention". There have been many cases which depend on the meaning to be given to a factual pre-condition framed in terms of a person "failing" to do some or other act. The most convenient summary of the difficulties to which the concept of "fails to" gives rise is to be found in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601. At 608 - 609 Kirby P (in dissent in the result) said:

The meaning of words is notoriously the subject of controversy, particularly in the English language with its rich etymological history. It is rare that a word will have one meaning only. Certainly, the word "fails" is not such a word. In Ingram v Ingram [1938] NSWStRp 25; (1938) 38 SR (NSW) 407 at 410; 55 WN 163, Jordan CJ pointed out that the word "fail" may have at least three possible meanings:

(1) Simply the omission to do a thing in question, irrespective of any reasons;

(2) An omission by reason of some carelessness or delinquency; but not an omission caused by impossibility;

(3) An omission to do the thing including by impossibility arising from some clause being included and others being excluded.

There are doubtless several other combinations of circumstances which do or do not attract the verb to fail. As Young J observed, commenting on Ingram, the categories offered by Jordan CJ do not take us very far in elucidating the meaning of "fails" in the present context. They, together with judicial observations of a like kind in the many other cases where the word has been considered, simply provide what McHugh JA has recently described as a "judicial dictionary": see Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 at 541. Scrutiny of judicial observations on the word "fails" (or relevant variants of the verb "to fail") discloses, as one would expect, differing meanings attributed to the word in differing contexts. In some contexts, the courts have been at pains to confine the word to circumstances evincing default or moral blame on the part of the person alleged to have failed. This the Court of Criminal Appeal did in Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252. That was a case where a taxpayer was alleged to have "failed" to furnish information. The court held that mere omission was not sufficient to come within the statutory phrase. In Goodwin v Bousfield [1977] 2 NSWLR 733 Nagle J adopted a similar approach because of the penal provisions of the statute there under consideration. A like approach was taken by the Full Court of the Supreme Court of Queensland in Lambert v McIntyre; Ex parte Lambert [1975] Qd R 349: see also R v Skurray (1967) 86 WN (Pt 1) (NSW) 1 and cf Loates v Maple (1903) 88 LT 288; R v Wagner [1970] RTR 422.

Some of the observations on the word "fails" in the context of The Constitution, s 57, in the High Court's decision in Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 illustrate a similar approach to the meaning of the word in that rather special constitutional context, namely failure to pass a bill leading to a "double dissolution".

On the other hand, an equally lengthy catalogue of cases can be assembled to illustrate the applicability of the word to circumstances where there is absolutely no suggestion of delinquency on the part of the person alleged to have failed, but simply an omission on that person's part to do something required or expected. For example, see Re an Arbitration between Wilson and Son and Eastern Counties Navigation & Transport Co (Ltd) (1892) 8 TLR 264 at 265 per Lord Esher MR; Miedbrodt v Fitzsimon; The Energie (1875) LR 6 PC 306 and McAdam v Federated Clerks Union W A Branch (1976) 56 WA Indus Gaz 792.

A scrutiny of these cases (which was not ventured by the parties) simply illustrates the caution of McHugh JA in Canterbury Municipal Council v Moslem Alawy Society Ltd. Great care must be taken in applying judicial observations on the meaning of words offered in different contexts.

52. Whan establishes that a grant of bail authorises the accused person to "be at liberty notwithstanding the operation of the sentence" (at [17]). The same position applies under s 6 of the Bail Act 1992 (ACT) (the Bail Act) which provides that, on the grant of bail, the person has a right to be released from custody (s 6(2)(a)) and "to remain at liberty in relation to the offence until required to appear before a court in accordance with the undertaking" given under s 6(1)(b) (that is, an undertaking to appear) (s 6(2)(b)).

53. Section 58 of the Administration Act operated against the background of the common law and statutory provisions as applicable at the time. Part of that suite of laws included the reasoning in Whan and s 6 of the Bail Act. When the respondent was granted bail on 27 March 2009, apparently as an incident of the powers of the Court to protect its process pending the hearing of the respondent's application challenging the lawfulness of his imprisonment rather than pursuant to the Bail Act, then the respondent was entitled not only to be released from custody but also to be at liberty notwithstanding the sentence. This would be so for any accused person granted bail. This is the context against which s 58(1)(a) of the Administration Act, and its reference to the factual pre-condition that the offender "fails to report to perform periodic detention", must be construed. This context is inconsistent with ascribing to s 58(1)(a) the meaning for which the appellant contends. In short, an offender cannot "fail to report for periodic detention" if there is no obligation on the offender, at the relevant time, to serve the periodic detention. The fact that the sentence was not stayed when bail was granted does not alter the fact that, on and from the grant of bail, the respondent was at liberty. In The Queen v Quzag [2015] ACTCA 36, the appeal from Quzag [2015] ACTCA 10 was allowed on the ground that, on an appeal to the Court of Appeal, the Court only has jurisdiction to grant bail as an incident of the jurisdiction to stay an order (at [36]). Accordingly, the decision in Quzag [2015] ACTCA 10 was in error in that bail had been granted without a stay. While the Court in The Queen v Quzag [2015] ACTCA 36 referred to the risk of potentially conflicting orders (of sentence and for bail) at [38], it was not suggested and is not the case that a person granted bail is other than at liberty on and from the grant. The effect of The Queen v Quzag [2015] ACTCA 36 is that the grant of bail itself, in the present case, might well have been liable to be set aside on appeal had any challenge been made to it; there was no such challenge, however.

54. The fact that the obligation is framed as one to report to perform periodic detention, read with the deeming provision in s 58(4)(a), does not support the appellant's construction. By s 40, "periodic detention" was defined to mean "periodic detention to be served by the offender". A person thus reports to perform periodic detention in order to serve the periodic detention to which they have been sentenced. If there is no obligation to serve periodic detention, it must follow that there is no potential for there to be a failure to report. This is so whether or not the "periodic detention period" remains in force or not.

55. The periodic detention period (by s 11(2) of the Crimes (Sentencing) Act 2005 (ACT), the period of the sentence of imprisonment), as provided for in Whan, may or may not continue during bail, depending on the statutory provisions which apply. In a case subject to s 37Q of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), which provides that time spent while released on bail does not count as part of the term of imprisonment, the sentence does not continue to run. But whether the sentence continues to run is not the issue in the present case. The issue is whether an offender can fail to report to perform periodic detention whilst on bail. The answer is "no" because, consistent with s 6(2) of the Bail Act and the reasoning in Whan, the grant of bail places the offender at liberty, subject only the reporting obligations imposed as a condition of the bail.

56. The reference to s 55 in s 58(1)(a) does not affect this conclusion. Section 55 pre-supposes that the offender is not at liberty and thus must serve the periodic detention. On that assumption, the section permits the chief executive to give to an offender an approval not to perform periodic detention. The reference to s 55 in s 58(1)(a) says nothing about the meaning of "fails to" in that provision.

57. Section 59 supports the construction which the primary judge reached and with which we agree. Under that provision the chief executive must apply to the Board for an inquiry under s 66 if s 58 applies to an offender for a second or subsequent detention period. On the appellant's construction, this provision would have operated in any case where a sentence was not stayed despite the fact that the offender was at liberty by reason of the grant of bail. So too would have s 69 under which, if the Board decided that the offender had failed to perform two or more periodic detention periods, the Board would have been required to cancel the periodic detention, with the consequence that the offender would be subject to full-time imprisonment. Contrary to the appellant's submissions, these consequences are absurd and would do nothing to promote any possible inferred purpose of the periodic detention provisions of the Administration Act (noting that s 139 of the Legislation Act 2001 (ACT) requires a court, in working out the meaning of an Act, to prefer the interpretation that would best achieve the purpose of the Act).

58. As the respondent submitted, our preferred construction is consistent with the position which appears to have been assumed to be correct in R v Hall [2004] NSWCCA 127 (R v Hall) in which the Court made no reference to the equivalent provision to s 58 in s 89 of the Crimes (Administration of Sentences) Act 1999 (NSW).

59. Further, Quzag [2015] ACTCA 10 and Carrion do not, in our view, provide support to the appellant's construction. In Quzag [2015] ACTCA 10 s 37Q of the Supreme Court Act applied so that the time spent on bail did not count as part of the accused's term of imprisonment. Refshauge J held at [31] that, in contrast to New South Wales and the outcome in R v Hall:

even on dismissal of an appeal, the alteration of the express terms of a sentence was possible in this jurisdiction because of the width of power of the court on such dismissal, explained in Hadba v The Queen [2004] ACTSC 62; (2004) 146 A Crim R 291.

60. His Honour also noted at [32] that s 58 answered the problem which there confronted the Court. At [34] his Honour explained that:

this section would apply to the situation of Mr Quzag were his appeal to be dismissed. That is to say, he would be a person who, in terms of s 58(1)(a) of the Crimes (Sentence Administration) Act, had failed to report and not been given approval under s 55 of that Act (which permits the Director-General to give approval not to perform periodic detention). The grant of bail is not approval under s 55.

61. In the present case, there was no appeal engaging the operation of s 37Q. There was no appeal at risk of being dismissed. The respondent was granted bail pending the resolution of his application to invalidate the Board's decision to commit him to serve his sentence by full-time imprisonment. The Court did not impose as a condition of his bail that he report to serve periodic detention in the interim. Quzag [2015] ACTCA 10 is distinguishable. It is not to be read as stating a general proposition that an offender on bail "fails to" report to serve periodic detention if the offender has been granted bail and a condition of the bail does not include such reporting.

62. In Carrion, as the respondent submitted, the accused person was at large. He was not on bail. As such, the equivalent provision to s 58 of the Administration Act operated and the sentence was extended.

63. Finally, we do not accept the appellant's submission that the construction we prefer would have the effect of reading into s 58(1)(a) the words "an extant legal obligation of" periodic detention. It is unnecessary to do so because the words "the offender fails to report to perform periodic detention" are ambiguous. For the reasons given, the context of s 58(1)(a) indicates that "fails to" is to be construed to mean "does not when there is an extant legal obligation to do so". This meaning yields a construction of the Administration Act which best achieves any possible inferred purpose of periodic (in contrast to full-time) detention and avoids the absurdity that would result from the appellant's construction, as described by the primary judge at [89].

64. For these reasons grounds 1 and 2 of the amended notice of appeal should be dismissed.

65. Ground 3 of the amended notice of appeal contends that the primary judge erred in finding that the respondent had a strong case for the exercise of power by the Supreme Court to grant a permanent stay of his sentence of imprisonment. According to the appellant, the Supreme Court has no such power and his Honour's indication of how the discretion would have been exercised involves error. The respondent, by a notice of contention, argued that if the appellant succeeded on grounds 1 and 2, then this Court should grant a stay for the same reasons given by the primary judge.

66. Given our conclusions about the proper construction of s 58(1)(a) of the Administration Act, the issue of a stay does not arise. We will say only this. We are not persuaded by the appellant's argument that this Court lacks power to grant a stay of the sentence in the circumstances of this case either by reason of its inherent jurisdiction or as a result of s 20(1)(a) of the Supreme Court Act (which provides that the Court has "all original and appellate jurisdiction that is necessary to administer justice in the Territory"). As the respondent submitted, the power to stay an order of a court to prevent an abuse of process by reason of the execution of the order is not different in principle from a stay to prevent other forms of abuse of process. In the words of the submissions for the respondent (excluding footnotes):

Contrary to the First Appellant's submissions, the circumstances warranting a stay of a sentence are not limited to stay orders pending an appeal or 'where the order is necessary to preserve the subject matter of the proceedings'. Nor is it confined to circumstances 'where its jurisdiction has otherwise been engaged' or 'where necessary to prevent the jurisdiction being rendered futile or impracticable'. Those circumstances do not exhaust the universe of cases that enliven the power. To restrict the enlivening circumstances in that way would be to confine the power to defined and closed categories and unnecessarily confine the scope of s 20(1)(a) to prevent injustice in a particular case.

Furthermore, the First Appellant is unwarranted in claiming that the Respondent is seeking a stay to 'right any wrong' or 'rectify any prospective "injustice"'. Nor is the stay being sought 'to put aside the rules of law and the obligations arising under them to intervene when an individual judge or a particular court feels the established rules cause, in the broad sense, injustice in a particular case'. Such contentions misunderstand and mischaracterise the Respondent's submissions. This is not a case that raises concerns about s 20(1)(a) of the Supreme Court Act...permitting the Supreme Court 'to roam at large and do justice where it perceives a need'. As contended by the Respondent, the inherent jurisdiction to grant a stay of sentence in the circumstances of this case has clear analogies to existing cases.

67. Nor is it apparent to us that, had he granted a stay, the primary judge's exercise of discretion would have miscarried. In any event, if it came to it, the issue for this Court would be whether it should exercise the discretion in light of all relevant circumstances at present. The only material argument the appellant put in this regard was that the transitional provisions to the Amendment Act, as now in force, require the Board to refer an offender to the sentencing court for re-sentencing and the sentencing court, as part of the re-sentencing, is able to take into consideration and weigh all competing factors. Yet the inescapable fact is that, if the appellant's arguments about the construction of s 58(1)(a) were accepted, the respondent would be bound to report for periodic detention and liable to imprisonment (even if only on a periodic basis) as a result. This would be so in circumstances where, as the primary judge said at [100(b)]:

Although initially there was considerable fault on the part of the [respondent] in not attending to his periodic detention obligations, he has suffered enormously at the hands of the criminal justice system by being kept on tenterhooks for 6½ years and by being required to meet bail conditions throughout that period in circumstances where he has already served 104 days in prison, 104 days being the number of days he would have served had he performed his periodic detention as originally ordered. In effect, for a very long time, there have been constraints upon his freedom of movement which should not continue.

68. If necessary, in the circumstances of this case, we would have stayed execution of the order for sentence against the respondent.

69. The remaining ground of appeal, ground 4, relates to the primary judge's order that the appellant pay the respondent's costs on an indemnity basis in respect of the appellant's application to strike out the respondent's application for a permanent stay of his sentencing order. The primary judge gave reasons for ordering the appellant to pay indemnity costs in respect of the strike out application in Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343.

(1) "Rule 1721(1) CPR [the Court Procedures Rules 2006 (ACT)] provides that the costs of a proceeding or of an application in a proceeding are in the discretion of the Court. The Court's discretion in respect of costs encompasses a decision as to which party is to pay the costs and also a decision as to the basis upon which such costs are to be paid. Rule 1752(1)(b) is a specific source of power for this Court to order costs on an indemnity basis. Rule 1752(4) prescribes the basis upon which an indemnity costs order will be assessed" (at [27]).

(2) "Usually there must be some special or unusual feature in the case that justifies the Court in departing from the usual position that costs should be ordered to be paid on the party/party basis" (at [28]).

(3) "ACT's strike-out application was made under r 40(1)(e) CPR. That rule provides that the Court may set aside an originating process. No criteria for the exercise of the Court's power under that rule are set out in the CPR. ACT submitted that, in the circumstances of the present case, the Court should apply the jurisprudence developed in respect of the power to strike out a pleading upon the ground that it discloses no reasonable cause of action (as to which, see r 425(1)(a) CPR) to the setting aside exercise called for under r 40(1)(e) CPR. For this reason, ACT submitted that the Court should set aside the plaintiff's Originating Application because a fair reading of that process did not disclose any reasonable cause of action being brought by the plaintiff" (at [43]).

(4) The ACT could "never have satisfied" the requirements for the striking out of an application. To strike out an application the case must be "clearly made out" in the sense that the application raises a case "so untenable that it cannot possibly succeed". In the present case, however, the claim for a permanent stay by the respondent was "clearly arguable" (at [45] and [46]).

(5) As a result, the ACT should "never have filed its strike-out application. The filing of that application was very likely to lead to the significant waste of time and money" and "added an unnecessary layer to the issues in the case. It had the potential to lead to two hearings covering much the same ground" (at [47]).

(6) As such, the appellant should be required to pay the respondent's costs of the strike-out application on an indemnity basis.

71. To disturb this discretionary decision on appeal some error of principle is required (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505). It is insufficient if the appellate court merely might have reached a different conclusion on the same facts. The appellant submitted that the primary judge did err in principle in that, according to the appellant, there was no power to grant the stay (an argument we have rejected) and, in any event, the strike-out application was useful to clarify the basis on which the permanent stay was sought and necessary to dispose of a claim not based on any recognisable cause of action. Further, it was not the case that the strike-out application was bound to fail. Finally, the strike-out application and originating application were heard and determined together so there was no waste of time or cost.

72. To the extent the argument about costs depended on acceptance of the appellant's contention that the Court had no power to grant a stay, the argument must be rejected. The other arguments put by the appellant do not disclose any error of principle by the primary judge. The fact is that the strike-out application was always bound to duplicate arguments capable of being put in response to the application for the stay. The strike-out application, accordingly, was not useful and did not achieve anything that could not have been achieved by defence of the application. Further, given the high standard which an application for summary dismissal of an application must reach, the primary judge was correct to observe that the application could never have succeeded. There was no prospect of the Court, on a summary basis, concluding that it had no jurisdiction to prevent an alleged abuse of process by stating an order of an inferior court. Full argument about these issues would have been (and was) required. The fact that the primary judge heard the applications together, and thus minimised or avoided the wasted time and cost to which the strike-out application was liable to give rise, is not a reason not to make an order for indemnity costs. It is the filing and prosecution of the strike-out application, in circumstances where the same arguments would have to be made on the application for the stay and where the application for the stay was necessarily arguable, which led the primary judge to order indemnity costs to that extent. In so concluding his Honour made no error of principle and the order for indemnity costs should stand.

73. None of the grounds of appeal have been sustained. It follows that the appeal should be dismissed, with costs.

I certify that the preceding thirty-three [33] paragraphs numbered [41] to [73] are a true copy of the Reasons for Judgment of their Honours Justice Burns and Justice Jagot.

(Periodic Detention of Prisoners (Amendment) Act 1985(NSW)

Crimes (Sentencing and Restorative Justice) Amendment Act 2016(ACT)

(Sentence Administration) Act 2005

(Sentencing) Act 2005

(Sentencing and Restorative Justice) Amendment Act 2016

Detention of Prisoners Act 1981

Detention of Prisoners (Amendment) Act 1985

(Administration of Sentences) Act 1999

Procedures Rules 2006

Australian Capital Territory v Lewis [2016] ACTCA 34

At a glance

Court

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Judgment (140 paragraphs)

Australian Capital Territory v Lewis [2016] ACTCA 34 (4 August 2016)

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Legislation Cited (11)

Cases Cited (9)