Baytieh v State of Queensland [1999] QCA 466

Director of Public Prosecutions (Queensland) for respondent

[1] McMURDO P AND DAVIES JA: These are applications for an extension of time and for leave to appeal from a decision of the District Court and, if both are granted, an appeal from that court. The application for an extension of time is only one day late and the respondent does not contend that an extension should not be granted. There was an adequate explanation for the delay and an extension should accordingly be granted.

[2] The order the subject of the application for leave and the appeal was one made under s 15 of the Crown Proceedings Act 1980 refusing to rescind but varying an order made against the applicant as surety to an undertaking as to bail forfeiting the sum of $10,000. The order varied that forfeiture order by ordering forfeiture of $2,000 instead of $10,000. The applicant argues that leave should be granted to appeal and an appeal allowed rescinding that varied forfeiture order. The circumstances giving rise to the giving of that surety by the applicant and the actions taken by the applicant to ensure the attendance at court of the principal, Mohammed Osman, are relevant both to the application for leave and to an appeal if leave is granted. With the consent of the parties this Court, without deciding the application for leave, heard argument both on that application and the appeal.

[3] Mohammed Osman was charged on two counts, one of attempted armed robbery accompanied by wounding whilst in company, the other of wilful damage. On 13 October 1998 he was committed for trial in the District Court at Southport for those offences. Then on 15 February 1999 the Supreme Court ordered that he be admitted to bail on his own undertaking with a surety of $10,000 or two sureties of $5,000 each, conditioned upon the following:

"1. The applicant appear and surrender himself into custody:-

(a) before the criminal sittings of the District Court at Southport at the sittings specified by the Court at the date, time and place fixed for the trial of which notice shall be given to him or his solicitor by the Director of Prosecutions or a person duly authorised by the Director of Prosecutions.

(c)[sic] the applicant not depart from Court without leave of the Court and so often as lease is granted return at the time appointed by the court and again surrender himself into custody.

2. The applicant not contact or communicate with or attempt to contact or communicate either directly or indirectly with the complainant or any Crown witnesses except by his lawyer.

3. The applicant report in person to the Officer-in-Charge of Police at Dutton Park each Monday, Wednesday and Friday between the hours of 8.00 am and 4.00 pm unless he receives the prior written consent of the Director of Public Prosecutions to do otherwise.

4. The applicant reside at 6 Agnes Street, Buranda unless he receives prior written consent of the Director of Public Prosecutions to reside elsewhere.

5. The applicant not travel interstate without the prior written consent of the Director of Public Prosecutions."

[4] On the following day Osman signed an undertaking in accordance with the order and on the next day, 17 February, the applicant signed an undertaking as surety in the sum of $10,000.

[5] On 7 May this year Osman was due to appear in the District Court at Southport for sentence on the above offences. He failed to appear when called at the sentence hearing and orders were made amongst other things for forfeiture of the applicant's undertaking as to bail and payment of the amount of $10,000 to the Crown forthwith. Then on 26 July this year the District Court made the order, referred to above, the subject of the present application and appeal. Because it was uncertain at the time this appeal was argued whether the learned District Court judge who made that order gave any reasons for it, the failure to give reasons was one of the bases upon which it was submitted leave should be granted, the appeal should be allowed and an order made rescinding the order for forfeiture. The other basis for the application and appeal was, it was submitted, that the applicant did everything reasonably in his power to ensure that Osman performed the conditions of his bail including his attendance at Court on 7 May.

[6] The applicant is a businessman and a minister of religion in the Islamic faith. He engages in a considerable amount of community work which includes being an honorary member of the prison chaplaincy and an Arabic-English translator. He first met Osman in November 1998 in his capacity as a chaplain for Muslims at Arthur Gorrie Correctional Centre, counselled him on numerous occasions and generally assisted him in dealing with his situation. In this capacity he attended with Osman at the District Court at Southport on 16 February this year and there gave the undertaking as surety, the subject of these proceedings. From his numerous meetings with Osman between November and February he formed the opinion that Osman was not a threat to himself or to the community at large, that he would take responsibility for his actions and that he would continue to surrender himself to the courts as and when required.

[7] The applicant was assiduous in maintaining his contact with Osman during the period between 16 February and 7 May and in ensuring his attendance at the District Court at Southport on 7 May. During that period the applicant contacted Osman by telephone every second or third day. Moreover he gave him specific assistance on a number of occasions such as by assisting in his application for Legal Aid, by ensuring that he stayed in contact with his legal adviser at the Legal Aid office and by attending with him at meetings with that adviser and with a psychologist, Mr Rigby. On Thursday 6 May the applicant contacted Mr Osman and members of his family by telephone every few hours in order to be assured of his whereabouts and his intention to attend at the District Court the following morning.

[8] Then on the morning of 7 May the applicant rang Mr Osman's home early in order to confirm his whereabouts and his intention to attend court at 10.00 am that day. He also arranged that Mr Osman and his parents would pick him up on their way to court. When they did not do so he rang their house but received no answer. He then arranged for a friend of his, Mr David Smith, to drive him to the District Court at Southport. Upon arrival there at 8.30 am he saw Mr Osman and his parents with the adviser from the Legal Aid office. He was informed by that adviser that he was about to engage in a pre-trial conference with Osman.

[9] The applicant then made inquiries at the security and reception desk at the District Court of the whereabouts of the bailiff. His intention was to bring Osman's attendance to the attention of court officials. He was advised to go to the fourth floor where the hearing was to take place and to speak to someone at the reception desk on that floor. When he arrived at the fourth floor he found the relevant courtroom locked and no court officers on that floor. He then returned to the front entrance of the court building where he again spoke to Osman. Osman told him that he was very nervous and that he wanted to buy some cigarettes. He told Osman that his attendance was immediately required at the courtroom, it then being after 9.40 am.

[10] The applicant then returned to the fourth floor expecting Osman and his parents to arrive. However he did not arrive and a subsequent search conducted by him and others, including the legal adviser, could not locate Osman. He has apparently not been seen since.

[11] We would accept the submission of the applicant that he had done everything reasonably in his power to ensure compliance by Osman with the conditions of his bail and, in particular, his attendance at court on 7 May. Indeed the contrary, although not conceded by the respondent, was not seriously argued before this Court.

[12] Plainly a judge, hearing an application under s 15, has a discretion as to whether the order should be varied or rescinded or the application refused. In making such order the judge must decide whether "having regard to all the circumstances it would be against the interests of justice to require the person indebted to pay the amount ordered to be paid.": s 15(1). It may be accepted that the circumstances will be rare in which it would be against the interests of justice to require the person indebted to pay any part of the amount ordered to be paid, given the importance of ensuring the integrity of the surety system. However no further indication is given in the section as to what those circumstances might be.

[13] There is no doubt that one of the circumstances relevant to the exercise of the discretion under s 15(1) is the extent to which the surety is at fault. In R v Southampton Justice; ex parte Green[1] Lord Denning MR, speaking of a similar discretion under s 96 of the Magistrates' Courts Act 1952 (UK), said, with the concurrence of Browne LJ and Brightman J:

"By what principles are the justices to be guided? They ought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely."

[14] That statement was criticized by Lord Widgery Chief Justice in R v Horseferry Road Stipendiary Magistrate; ex parte Pearson.[2] His Lordship said that he found it difficult entirely to follow this passage because the forfeiture of a recognisance is in no sense a penalty imposed on the surety for misconduct. His Lordship may have construed the above passage as implying that forfeiture was a penalty against which the surety was seeking relief. Of course it is not. The question is whether it is in the interests of justice that the surety should be relieved of his or her obligation; and in considering that question the seriousness of the obligation and the extent to which it provides an incentive to the principal to comply with the conditions of the bail are relevant considerations. But in our view Lord Denning was saying no more than that culpability of the surety is a relevant, indeed important, consideration in exercising that discretion, as Lord Widgery appears to have acknowledged it was. Indeed it is, it seems, the consideration most commonly relied on and referred to.[3]

[15] Other considerations may be financial hardship of the applicant arising since giving the undertaking; and the reasonableness of his or her expectation that the principal would comply with the conditions of his bail, especially where it is asserted against an applicant that he or she should have applied, or applied sooner, to discharge himself or herself from liability. It would be unwise, in our view, to attempt a definitive statement of the considerations which may be relevant to this question.

[16] As virtually conceded by the respondent the applicant did everything reasonably in his power to ensure that the applicant complied with his conditions of bail and to secure his surrender to the relevant authorities on the day in question. Moreover, had relevant court officers been present at the time and place when the applicant inquired, and when he might reasonably have expected them to be present, his obligation would have been fulfilled.

[17] In the circumstances outlined, in our view, these were overwhelming considerations requiring the learned primary judge, in the exercise of his discretion, to rescind the forfeiture order which he had earlier made. His failure to do so indicates that the exercise of his discretion must have miscarried.

[18] As it turns out the learned primary judge did give reasons for his conclusion. However they do not say or even imply why he chose to vary and not to rescind the order which he had earlier made. They were therefore inadequate. This and other courts have on numerous occasions emphasized the need for courts to give adequate reasons for decision.[4] The failure of the learned primary judge to give adequate reasons for his decision is sufficient to vitiate the exercise of his discretion and to require this Court to exercise it afresh.

[19] On either of these bases we would grant the extension of time and leave to appeal, allow the appeal, set aside the order made below and order that the order made on 7 May 1999 forfeiting the sum of $10,000 be rescinded.

[20] JONES J: McMurdo P and Davies JA have, in their reasons, stated the facts upon which this decision turns and I shall not re-state them.

[21] For the reasons advanced by McMurdo P and Davies JA I agree that there should be an extension of time and leave to appeal and that the appeal should be allowed.

[22] The discretion provided for by s 15(1) of the Crown Proceedings Act 1980 to relieve a surety, wholly or in part, from an undertaking to pay a sum of money upon forfeiture of a bail undertaking is quite wide. Its terms are relevantly expressed that the undertaking may "be varied or rescinded on the ground that having regard to all the circumstances, it would be against the interests of justice to require the person indebted to pay the amount ordered to be paid".

[23] What is meant by the term "the interests of justice" is not explained either in the Crown Proceedings Act or in related provisions of the Bail Act.

[24] Whilst there is in other jurisdictions, an equivalent provision to relieve a surety of the obligations of his or her undertaking, the test for so doing is expressed in different terms. For example, in Victoria, relief could be granted on the ground that it would be "unjust to require [the surety] to pay the amount undertaken"[5]. In South Australia forfeiture may be rescinded or the amount reduced "for any sufficient reason".[6] In Western Australia the relevant ground is the showing to the satisfaction of the judicial officer that "there was a reasonable excuse for the failure of the defendant to answer the bail" or alternatively that "excessive hardship to the surety" would be caused.[7] Thus, it is seen that the grounds for relief in some instances are directly personal to the surety's behaviour and the effect of forfeiture on the surety's financial position.

[25] To satisfy the test of being against "the interests of justice" would seem to suggest a consideration of a much broader notion. As such it must contemplate the nature of the benefits and obligations imposed on the granting of bail upon a surety's undertaking.

[26] Firstly, before a person is accepted as a surety there needs to be satisfaction in the mind of a Justice of the Peace of a number of matters which are particularly set out in s 21 of the Bail Act. These include such matters as age, capacity, character of the surety, the surety's kinship with the defendant and the surety's financial competence.[8] Section 21(8) requires a consideration by the Justice before whom the affidavit of justification is sworn whether any forfeiture of the surety "would be ruinous or injurious to the person or person's family".

[27] Upon being accepted as a surety, a person then has a defined right to apply for a discharge from a surety and the right to apprehend the defendant on whose behalf the undertaking has been given. The surety undertaking lapses upon the death of the surety and thereupon the defendant may be required to provide a new surety.

[28] The fundamental obligation of a surety is to ensure the attendance of the defendant when required at Court. The nature of the relationship between the defendant and the surety is stated in Halsbury 4th Edition Volume 11 at para 166 in the following terms:-

"The effect of granting bail is not to set the accused free, but to release him from the custody of the law and to entrust him to the custody of his sureties, who are bound to produce him to answer on his trial at a specified time and place."

This fundamental obligation explains why it is that the surety has the right to apprehend the defendant as provided for by s 24 of the Bail Act.

[29] The consequence for the surety upon a failure by the defendant to appear in accordance with his or her undertaking is to permit a Court, Judge or Justice to order that the amount undertaken by the surety or sureties to "be paid to the proper officer of the Court forthwith or within such time or by such instalments as the Court, Judge or Justice allows". (S 14(1) of the Crown Proceedings Act 1980). The Court has no discretion either in respect of making an order or in respect of the amount to be forfeited (Thomakakis v Sheriff of NSW (1993) 33 NSWLR 36). Thereupon the surety has a right to apply, as did the applicant here, pursuant to s 15 of the Crown Proceedings Act for relief from such forfeiture.

[30] It is well recognised that the forfeiture of the amount undertaken to be paid by a surety is not a penalty for the surety's misconduct[9]. Forfeiture desires the recognition that "the surety has seriously entered into a serious obligation and ought to pay the amount which he or she has promised unless there are circumstances which make it fair and just to pay a smaller sum"[10].

[31] In ex parte Doueihi,[11] the only reported decision on the Queensland provision, Williams J agreed with this observation and accepted its relevance to the exercise of the discretion arising under s 15 of the Crown Proceedings Act. This decision is most helpful for its identification of the essential conflict between the public interest and the private right to seek, pursuant to the Statute, relief from forfeiture. The decision also identifies some relevant considerations to which regard should be had.

[32] The public interest element was emphasised also in R v Crown Court at Maidenstone; ex parte Lever, where Butler-Sloss LJ stated:-

"In this case the sureties undertook a particularly heavy and onerous burden in assuming the responsibility of bringing this defendant to court for trial. Substantially to reduce their burden would be to alert those who might otherwise be constrained not to break that trust with their family, that a surety who has done his best will be relieved of his financial obligation and a defendant need not be concerned that the family will suffer if he absconds. That impression would destroy a crucial element in the use of sureties. The reducing of the financial obligation assumed by a surety must be the exception not the rule and be granted only in really deserving cases."[12].

"It follows that in one sense the system has unfairness built into it. It may result in persons entirely innocent having to suffer on account of the wrongdoing of another. The courts rely upon the moral pressure which this prospect should apply to the mind of the accused. But the pressure would evaporate if judges were not willing, as a general rule, to harden their hearts against a plea of lack of culpability when it turns out that the surety's trust in the accused was misplaced."[13]

[33] Turning then to matters relevant to an application for relief from forfeiture, the first observation is that the onus is on the applicant. In Cucu v The District Court (New South Wales) Kirby P (as he then was) said[14]:

"The authorities show that the onus of establishing facts to justify relief against forfeiture is borne by the applicant: see eg Re McKinnon (1986) 40 SASR 326; Uxbridge Justices; Ex parte Heward-Mills [1983] 1 WLR 56; [1983] 1 All ER 530. For the claimant, both before the primary judge and in this Court it was accepted that he bore the onus of persuading the judge 'to order the discharge of the whole of the fine or forfeited recognisance or of any part thereof'".

[34] In the exercise of a discretion arising out of this type of application there can be no all-embracing list of matters to be considered nor any assessment of the relative weight to be given to any particular matter. Kirby P in Cucu's case described the considerations as "multifarious".[15]

[35] The starting point must however be an understanding of the nature of a surety's obligation and the role the granting of bail on a provision of surety plays in the criminal justice system. The scheme of the Bail Act is to empower the Court to grant bail in accordance with the terms of the Act. The Act provides that the Court shall refuse to grant bail in circumstances where there is an unacceptable risk that the defendant, if released on bail, would do any of the following -

or where a defendant should remain in custody for the defendant's own protection.

[36] The Bail Act sets out in s 11(1) a hierarchy of conditions upon which bail may be granted. At the upper end of the sequence are conditions requiring a surety liable to forfeiture upon the breach by the defendant of his undertaking. Thus a surety is an important option in the range of conditions available to be imposed on the granting of bail.

[37] From the standpoint of the surety it must be assumed that the surety "has seriously entered into a serious obligation".[16] So there is seen at once in the granting of bail, concepts of protection of community and the awareness of obligations on the part of the surety.

[38] Similarly, when considering an application for relief against forfeiture of the surety's undertaking, the interests of justice require a balancing of the public interest in not diminishing the importance of the surety's obligation and the interests of the surety where the financial impact occasioned by forfeiture of the amount of the undertaking could be devastating.

[39] I agree with McMurdo P and Davies JA that it would be unwise to attempt a definitive statement of the considerations relevant to the exercise of a discretion under s 15 of the Crown Proceedings Act but there can be gleaned from the cases referred to above some common, or at least repeated features, which provide a starting point for such a determination. The following points emerge -

1. The onus of proof that relief from forfeiture is "in the interests of justice" is on the applicant (Cucu).

2. The surety's obligation is to pay, unless he or she proves circumstances which make it fair and just to be granted relief (Doueihi).

3. The steps which the surety took to ensure that the defendant would attend the Court (Southampton Justices, ex parte Green).

4. Any circumstances which ought to have alerted the surety that the defendant was likely to abscond (Doueihi).

5. The circumstances which caused the surety to enter into the undertaking to secure the defendant's release (Thomakakis).

6. The nature of the relationship between the surety and the defendant and the level of control the surety had over the defendant's behaviour (Cucu; see also R v Jordan [1966] TASStRp 16; [1966] Tas SR 178).

7. Whether the relationship is likely to persuade the defendant to return in the event that he or she absconds (Southampton Justices, ex parte Corker 120 SJ 214).

8. The assistance given by the surety in the attempts to re-apprehend the defendant (Cucu).

9. The extent of the financial impact of the forfeiture on the surety and his or her family (Cucu).

[40] The most significant factor in the present case is the fact that there was no want of diligence on the part of the applicant. He was most active in maintaining contact with the defendant and in assisting the defendant to comply with his bail conditions. In fact, as was observed during argument, in practical terms there was really nothing more the applicant could have done to deliver the defendant into the hands of the court bailiff.

[41] Moreover, the applicant has participated in the bail process in a most commendable way. He does not have any familial tie with the defendant. His concern was to help a young person to avoid being detained in prison. In this sense his actions echo the philosophy underlying the Bail Act. There were no circumstances from which he ought to have anticipated the defendant's decision to abscond - which in any event seems to have been an impulsive action. The applicant gave immediate assistance to the authorities' attempt to re-apprehend the defendant.

[42] The circumstances upon which the applicant relies are not likely to give the impression in the mind of a right-thinking person that the Court in granting relief from forfeiture is not diminishing the importance of the obligation which each surety undertakes to ensure the attendance of the defendant as required.

[43] Since, for the reasons advanced by McMurdo P and Davies JA, the discretion whether to grant the application for relief has to be exercised anew, I would order as follows:-

1. Time within which to appeal be extended to the date of filing of the notice.

4. The order made in the District Court on 7 May, 1999 forfeiting the amount of the applicant's undertaking as surety be rescinded.

[1] [1976] QB 11.

[2] [1976] 1 WLR 511.

[3] See also Ex parte Doueihi [1986] 2 QdR 352 at 357. R v Spiers, SACCA 115 of 1987, 27 September 1988, Butterworths Unreported Judgments BC8800213.

[4] See eg Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 QdR 462 at 476 - 477, 482 - 483; Suncorp Insurance and Finance v Hill Appeal No 2029 of 1997, judgment delivered 29 May 1998 at 11 - 12; Crystal Dover Pty Ltd v Taylor and Anor Appeal No 9868 of 1998, judgment delivered 17 November 1998.

[5] Crown Proceedings Act 1958 (VIC) s 6(4).

[6] Bail Act 1985 (SA) s 19(3).

[7] Bail Act 1982 (WA) s 49, s 59.

[8] Bail Act s 21(1)-(6).

[9] R v Horseferry Road Stipendiary Magistrate ex parte Pearson [1976] 1 WLR 511.

[11] [1986] 2 Qd R 352 at 357.

[12] [1995] 2 All ER 35 at 40.

[14] (1994) 73 A Crim R 240 at 242.

[16] Per Lord Widgery CJ in R v Horseferry Road Stipendiary Magistrate; ex parte Pearson [1976] 1 WLR 511.