Chamberlain v The Queen

On 17 November 1982, shortly after Mrs. Chamberlain had begun to serve her sentence in the Darwin Prison, she gave birth to a second daughter, Kahlia. She had been taken to the Darwin hospital for the birth of the baby. On 19 November 1982, by order of a Full Court of the Federal Court (Fox and Northrop JJ., Lockhart J. dissenting) she was admitted to bail pending the disposition of her appeal. Mrs. Chamberlain, her husband, two sons and the baby have been living together at Avondale College at Cooranbong in New South Wales. She has been breastfeeding the baby. When her appeal was dismissed, the Federal Court ordered the Sheriff of that Court to take her into his custody and to deliver her to the Officer in Charge of the Darwin Prison at Berrimah in the Northern Territory, where she is to continue to serve her sentence. She was taken into custody accordingly. The present application is to release Mrs. Chamberlain on bail in order that she may resume family life and continue to breastfeed Kahlia pending the disposition of her application for special leave to appeal. I may say at once that I do not think that there is any likelihood of her failing to answer to her bail if bail were granted. The poignancy of her return to custody and the traumatic disruption of family life that that involves needs no elaboration. It needs no psychiatric evidence to establish the tragic nature of those events. The circumstances give force to the observation of Edmund Davies L.J. (as he then was) in the case of Gruffydd [10] :

[O]nce bail is granted pending an appeal, judges who later hear it are presented with an additionally heavy problem. Bail inevitably raises hopes, and to wreck them by ordering a return to custody is a painful duty for any judge. Nevertheless, there are times when such a duty is unavoidable. 1. (1972) 56 Cr.App.R. 585, at p. 589.

An application for bail to the High Court in these circumstances invokes an extraordinary jurisdiction of this Court. As Hallett J. demonstrated in Ex parte Blyth [1] , a court of general jurisdiction at common law has no inherent jurisdiction to grant bail pending an appeal to a person serving a sentence after conviction: statutory power must be conferred if bail is to be granted to a prisoner serving a custodial sentence. That view was held by Lynskey J. in Ex parte Speculand [2] , by Burt J. (as he then was) in Re Edwards [3] and by Cox J. in two recent cases, Ex parte Burke [4] and Ex parte Rundle [5] , where his Honour collected and helpfully reviewed the relevant authorities. In Lala Jairam Das v. The King Emperor [6] , Lord Russell of Killowen, delivering the judgment of the Judicial Committee, expressed the same view:

If such a power exists in a High Court it can only be as a power inherent in a High Court because it is a power which is necessary to secure the ends of justice. It must be observed that, as decided by Mr. Justice Hallett, after a careful and exhaustive review of the authorities, no such inherent power exists in the High Court of Justice in this country (Ex parte Blyth). 1. [1944] 1 K.B. 532. 2. [1946] K.B. 48, at p. 49. 3. [1975] W.A.R. 161. 4. (1982) 30 S.A.S.R. 278. 5. (1982) 30 S.A.S.R. 282. 6. [1945] 61 T.L.R. 245, at p. 247.

The power of this Court to grant bail to a prisoner committed in execution of a sentence pending his appeal or application for special leave to appeal must find a statutory foundation. Some reliance in this respect was sought to be placed upon the provisions of O. 70, r. 32(3) of the Rules of this Court, and upon the reasons for judgment in Collins v. The Queen [7] . Even if the Rules were a possible source of power to grant bail pending an application for special leave to appeal, that sub-rule does not purport to confer it. However, I do not propose to determine the present application on the ground of jurisdiction. The power to grant bail has, on some few occasions, been exercised in the past and neither counsel denied the existence of the power to grant bail pending an application for special leave. I should say, however, that in my opinion the power of this Court to grant bail rests upon the inherent power to preserve from futility the exercise of the Court's jurisdiction to grant special leave to appeal and to allow an appeal thereafter. Such a power was asserted by Dixon C.J. in Tait v. The Queen [8] to prevent the execution of a sentence of death pending the determination of the prisoner's application for special leave to appeal. In Reg. v. Marks; Ex parte Federated Ironworkers' Association [9] , Mason J. said that such an inherent power "is seldom invoked and rarely exercised". I do not propose to give effect to that opinion in the present case, however, for the argument proceeded on a different basis. I should consider this application as though the discretion to be exercised is conferred in general terms.

1. (1975) 133 C.L.R. 120. 2. (1962) 108 C.L.R. 620. 3. (1981) 34 A.L.R. 208, at p. 211.

In In re Cooper's Application for Bail [10] , a case where an application for leave to appeal against a conviction by the Supreme Court of the Territory of Papua New Guinea was pending, Fullagar J. said:

I consider that the principle applicable is just the same as that applicable where there has been a conviction by a jury, and the cases are uniform that bail will not be granted after conviction and pending appeal unless exceptional circumstances are shown. That principle was followed by Mason J. in Hayes v. The Queen [11] who said that bail is granted "in an exceptional case only". 1. [1961] A.L.R. 584. 2. (1974) 48 A.L.J.R. 455.

In England, where the Court of Appeal is vested with a statutory power to grant bail pending an appeal from the Crown Court, the modern practice is to grant bail pending an appeal only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard (Watton [12] ). In Australia, in the various States where a statutory power to grant bail pending an appeal exists, the circumstances in which the power will be exercised have been described in general terms as "very exceptional" (Re Kulari [13] ), "exceptional" (R. v. Ryan [14] ; R. v. Patmoy [15] ; Reg. v. Lawrence [16] ; Reg. v. Wood [17] ), "exceptional or unusual" (R. v. Byrne [18] ), or "special" (R. v. Salon [19] ; Reg. v. Southgate [20] ).

1. (1978) 68 Cr.App.R. 293, at pp. 296, 297. 2. [1978] V.R. 276. 3. [1930] S.A.S.R. 125. 4. (1944) 62 W.N. (N.S.W.) 1. 5. (1978) 22 A.L.R. 573. 6. [1970] Q.W.N. 3. 7. [1937] Q.W.N. 30. 8. [1952] A.L.R. (C.N.7), at p. 1054. 9. (1960) 78 W.N. (N.S.W.) 44.

However the test may be formulated, in practice the grant of bail pending an application for special leave to appeal to this Court will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending. That is because the cases in which special leave to appeal is sought are usually cases in which an intermediate court of appeal has found neither an appealable error occasioning a substantial miscarriage of justice in the trial nor an error of law affecting the sentence. This is such a case. The Federal Court has held that the conviction is not affected by appealable error. Although counsel will argue that that Court was in error in dismissing some grounds of appeal without examination on the merits, the Court's findings upon the merits, so far as they go, weigh against the present application.

But there is another factor of more general and more fundamental significance which militates against the granting of bail. Mrs. Chamberlain challenges the verdict upon which her conviction and sentence are founded: if the verdict were to be set aside, the formal conviction and the sentence would be quashed; if the verdict stands, so must the conviction and sentence. To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately. In a serious case, where the prisoner's custodial sentence depends upon a jury's verdict (as it does when there is a conviction for murder and there is no discretion as to sentence) an application for bail before the verdict is set aside is in substance an application to suspend the effect of the verdict. 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.

In the present case, the verdict of the jury has survived an attack upon it in the Federal Court. It cannot be said that the verdict is likely to be set aside. In those circumstances, the processes of the criminal law must take their course, and the application must be dismissed.