Caratti v R [1999] WASCA 91

Bail Act 1982, Part C cl 1 and cl 3

Respondent : Commonwealth Director of Public Prosecutions

Aston & Burnell (1987) 26 A Crim R 128

Baldock v The Queen, unreported; SCt of WA; Library No 930232; 30 April 1993

Briggs v The Queen, unreported; SCt of WA; Library No 6984; 17 December 1987

Carter v The Queen (1997) 19 WAR 8

Connell v R (No 6) (1992) 12 WAR 133

Eastman (1996) 89 A Crim R 513

Garakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317

Murphy v The Queen, unreported; SCt of WA; Library No 950380; 27 July 1995

Saffron v R (1989) 17 NSWLR 395

The Queen v Bibby, unreported; FCt SCt of WA; Library No 960308; 3 April 1996

The Queen v Giordano (1982) 31 SASR 241

The Queen v Lacey (1982) 29 SASR 525

Walplan P L & Wallace [1985] FCA 479; (1985) 8 FCR 27

1 MILLER J : The appellant was tried before Murray J and a jury in the Supreme Court at Perth between 1 February and 4 June 1999 on a charge that between 30 June 1988 and 1 April 1994 with three others he had conspired together to defraud the Commonwealth of Australia in contravention of s 86A of the Crimes Act 1912 (as amended). The appellant was convicted on 4 June 1999 of that offence. He was sentenced by Murray J to imprisonment for four and a half years with a minimum non-parole period of two years three months.

2 The appellant has lodged a notice of appeal against conviction and the Crown has appealed against sentence. The appeals will be heard in the first week of the sittings of Court of Criminal Appeal in October of this year. That is, there will be a three-month delay until such time as the appeals can be heard, and following the hearing of those appeals I can expect that there will be a delay of at least another month whilst the Court of Criminal Appeal considers its decision in the matter.

3 The appellant has made application to be released on bail pending the hearing of his appeal against conviction. The application contains with it a minute suggesting that he be admitted to bail in the sum of $50,000 with a surety for a similar amount and that there be reporting conditions and other general conditions applicable to bail such as surrender of passport and a required residential address.

4 Under the provisions of the Bail Act 1982 it is necessary that I consider whether in this case there are exceptional reasons why the appellant should not be kept in custody. Only if there are exceptional reasons can he be released on bail.

5 I am required, pursuant to the provisions of the Act, to consider Part C cl 1 and cl 3 in addition to the question whether there are exceptional reasons why the appellant should not be kept in custody. However, it is obvious that there are no reasons why bail would not be granted under Part C clauses 1 and 3 if there can be shown to be exceptional reasons why the appellant should not kept in custody.

6 The reasons advanced as to why it is said that there are exceptional grounds include:

a. The appellant has a strongly arguable case on appeal

b. The appellant's liberty is required for instruction of solicitors in complicated civil proceedings

c. The appellant's personal circumstances and history whilst on bail indicate that there can be little risk of his not appearing

d. There is a risk that a substantial part of the non-parole period of the sentence will have been served before the appeal comes on for hearing.

7 Although it is argued that there is a risk that a substantial part of the appellant's non-parole period will have been served before the appeal comes on for hearing, the fact that the appeal will come on for hearing in three months does not, in my view, carry with it the conclusion that a substantial part of the non-parole period will have been served. The non-parole period is two years three months of which one month has been served. Three months of 26 months cannot be said to be a substantial part of the non-parole period. Even allowing for a further month for consideration of the matter by the Court of Criminal Appeal, four months of 26 months cannot in my view be so categorised. It is, of course, true that in a case where a substantial portion of a custodial part of a sentence will be served before an appeal is disposed of, that fact alone can be a proper basis for a Court granting bail. It has been so held in this Court in numerous cases including Tran v The Queen, unreported; SCt of WA; Library No 990117 (Scott J); 11 March 1999.

8 The contention that the appellant needs to be at liberty in order to instruct his solicitors in civil proceedings is not one that in my view can weigh heavily in the determination of whether or not there are exceptional circumstances why he should not be kept in custody. There will undoubtedly be inconvenience occasioned by the fact that the appellant is in custody whilst civil proceedings are afoot, but this fact of itself does not in my view point to exceptional reasons why he should not be kept in custody: see Ex parte Maher (1986) 1 Qd R 303 per Thomas J at 313 in relation to the question of release on bail to enable a convicted person to instruct counsel/solicitor in criminal appellate proceedings.

9 The general principles relating to grants of bail in cases such as this were set out by Brennan J in Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 519-520 where His Honour expressed the view that an application for bail before a verdict is set aside is in substance an application to suspend the effect of the verdict. His Honour said:

"To grant bail in such a case is to whittle away the finality of the jury's finding and to treat the verdict merely as a step in the process of appeal. The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court."

Reservations have been expresses as to whether this statement is correct. Callinan J in Marotta v R [1999] HCA 4 (at 2) doubted whether a grant of bail does treat a verdict of guilty as provisional and I respectfully agree. In any event, the test, even at High Court Level, is whether exceptional circumstances are shown.

10 The likelihood of success on appeal is a very real issue in determining whether or not bail should be granted pending appeal. Only a tentative or prima facie view can be formed by a single Judge sitting in circumstances such as I am today. It would be inappropriate for me to sit as a "preliminary Court of Appeal": Ex parte Maher (supra) per Thomas J at 311. Detailed argument on the grounds of appeal cannot be entertained at this point, particularly as the trial lasted 4 months, involved 14,000 exhibits, and led to 7500 pages of transcript (see generally W (1994) 73 A Crim R 532 per Hunt CJ at CL at 538).

11 In Bond v R, unreported; SCt of WA; Library No 920322; 12 June 1992 Franklyn J expressed the view that an exceptional case had to be made out before bail would be granted, and exceptional grounds would only exist if the Judge was convinced that the arguments would almost certainly succeed before the Court of Appeal. In Walser [1994] 73 A Crim R 154 White J (at 159) pointed out that this statement may go too far. It has otherwise been held in this Court that the fact that an appellant has strong prospects of success on appeal may be sufficient to constitute an exceptional reason so as to justify bail pending appeal: Willers v The Queen, unreported; SCt of WA (Parker J); Library 950284; 9 June 1995. Prospects of success are most certainly a factor to be weighed; Re Coopers application for bail (1961) ALR 584. The stronger the apparent prospects of success the more significant is the factor. It has been said that a merely arguable case on appeal against conviction, although relevant to bail, will not be sufficient in itself to constitute an exceptional reason. This is said to follow from the decision in Chamberlain (supra). (See Willers (supra) per Parker J at 4.) In Marotta (supra) Callinan J held that the raising of an arguable point, which may have real substance, and which if it succeeded would probably justify a retrial, was enough. Full respect must be given to this statement, and it may be that the test needs reconsideration in this Court. However, for present purposes, the test which I will apply is whether there are strongly arguable grounds of appeal, which have strong prospects of success.

12 In essence, the appellant argues that there is one strong ground: ground 9(ii). This ground contends that evidence admitted by the trial Judge which was later ruled inadmissible led to a miscarriage of justice, and notwithstanding the attempts of the trial Judge to cure it. The evidence in question was an alleged admission by the appellant in the following terms:

"Nick, are you crazy. How can I give you a group certificate when I never paid one fucking cent in tax."

The trial Judge was asked to abort the trial and discharge the jury, but refused, and sought to rectify the problem by a direction to the jury to ignore the evidence. This direction was given immediately after reception of the evidence. It was repeated in the trial Judge's charge to the jury.

13 Full respect must be afforded the decision of the trial Judge to proceed with the trial: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. However, an appellate court must, where the exercise of discretion to refuse a discharge is challenged, decide for itself whether in these circumstances the result of the refusal to discharge the jury occasioned a substantial miscarriage of justice. As it was put in Crofts (supra per Toohey, Gaudron, Gummow and Kirby JJ at 441):

"... can the appellate court say with assurance that but for the admission of the inadmissible evidence the conviction was inevitable."

14 In this case the respondent argues that the inadmissible evidence was but one piece of evidence, the impact of which was not such as to cause any miscarriage of justice in circumstances where the trial Judge gave a full direction to the jury to ignore it. Counsel for the respondent argues that there was ample other evidence of admissions which would have made conviction inevitable. However, the inadmissible evidence was a dramatic admission and I am satisfied it was the only evidence which could be said to constitute an unequivocal admission. The trial judge was clearly troubled by it. His Honour's initial comments amply reflect that fact.

15 I am unable to assess the strength of the whole of the case, but I am alarmed at the fact that the jury heard the evidence in question. It is for the Court of Criminal Appeal, not me, to determine whether the evidence occasioned a substantial miscarriage of justice. But at this level I am sufficiently persuaded that it is strongly arguable that there was a miscarriage of justice, and one which was incurable by direction. For these reasons I am prepared to allow bail pending appeal on the following terms and conditions:

1. The appellant be admitted to bail on his personal undertaking in the sum of $150,000 with a similar surety approved by the Court or a justice of the peace.

2. The bail be subject of the following conditions:

(a) The appellant do report each Friday to the officer in charge of the Federal Police Headquarters Murray Street Perth;

(b) The appellant do reside at 11 Sulman Avenue Salter Point;

(c) The appellant shall not approach any point of international departure;

(d) The appellant shall not leave the metropolitan area of Perth without leave of the Court;

(e) The appellant do surrender his passport to the Australian Federal Police;

(f) The appellant answer to his bail when called upon to appear before the Court of Criminal Appeal.