Clarke v Director of Public Prosecutions

Procedural history 7 Following conviction, the trial judge ordered a pre-sentence report and recommended a comprehensive psychiatric assessment. The applicant was remanded in custody until 3 September for those things to be done. On 31 August the matter was mentioned before his Honour as no psychiatric assessment had been made. It appears from the transcript of those proceedings that a failure of communication between the Court, on the one hand, and the party providing the assessment, on the other, had led to the delay. The result was that the psychiatric assessment would not be completed before 3 September. An adjournment was requested by those providing the assessment until 10 September, when the psychiatrist who was responsible said the report would be ready. The matter was ultimately adjourned until 12 November for reasons which included the convenience of counsel and the obligations of the Court. There was nothing to indicate that the applicant was present on 31 August, although he was represented by counsel. He told us that he was not present. 8 The result was that the applicant was to be in custody from 29 June to 12 November before being sentenced, through no fault of his own. This is plainly unacceptable. On 10 September the applicant made his own application for bail, in the course of which he made it clear that the adjournment of the matter on 31 August to 12 November was not in accordance with his wishes. The application was refused. It is that order refusing bail from which the applicant sought leave to appeal. The applicant appeared in person before us.

Error below and grant of leave 9 The Director of Public Prosecutions ("the Director") rightly conceded before us that he had difficulty in supporting the reasons for which bail was refused to the applicant. It was clear that his Honour had accorded significant weight to the conviction as such, and did not advert to the presumption of bail notwithstanding conviction which is the result of a combination of s 8(2)(a) and s 3(2)(a) of the Bail Act 1992 (ACT) ("the Bail Act"). Section 9 (requiring the establishment of special or exceptional circumstances justifying the grant of bail) only applies after a person has been sentenced to a period of imprisonment. Furthermore, his Honour, when dealing with the issue as to the likelihood of further offences being committed, said: "I am not confident that there would be no further offences committed during any period of bail." That is not the issue posed by a correct application of s 8 and s 22(1)(c)(ii), as was explained in Dunstan (supra). 10 When these difficulties emerged during the course of argument, the Court determined that the most sensible and expeditious method of proceeding was to grant leave to appeal and then proceed to hear the appeal instanter.

Appeal 11 The Director agreed that, as a result of the defects in the manner in which his Honour had dealt with the matter, the appeal must succeed unless the Court was satisfied that upon a proper consideration of the matter bail would have been refused. He argued that the Court should be so satisfied from the circumstances of the case. This submission requires the Court to consider those circumstances for itself.

Probability of appearance 12 The first issue for consideration pursuant to s 22 is the probability of the applicant appearing in Court for his sentence. One of the matters to which we must have regard in this connection is the background and community ties of the applicant, having regard to the nature of his home environment and employment, and his criminal record (s 22(1)(a)(i) of the Bail Act). The applicant has no criminal record. He was born in Hong Kong in 1968. His father was of European parentage and was a master mariner. The applicant's mother is aged sixty five and of Chinese origin but is fourth generation Indonesian. After the death of the applicant's father when he was five, he grew up in Indonesia with his mother. He and his mother moved to Tasmania when he was eighteen. She remarried an Australian. His mother and stepfather still live in Tasmania. 13 The applicant attended school in years eleven and twelve in Tasmania and went to the University of Tasmania, completing a Bachelor of Arts degree and a Bachelor of Laws degree. He was apparently admitted to the Victorian Bar but did not pursue that career through lack of opportunities. After a period out of work, he pursued some studies connected with education in the Australian Capital Territory. 14 The applicant has no ties in the Australian Capital Territory. His cousin and her husband live in Parramatta in New South Wales, and on a previous occasion bail was granted to him on the basis that he would live with them. Each of them had given evidence on that occasion. 15 The next matter to which we should have regard pursuant to the statute in relation to the probability of appearance is the circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the applicant absconding (s 22(1)(a)(ii) of the Bail Act). To adapt the words of Street CJ in R v Hilton (1987) 7 NSWLR 745 at 750, the fact of conviction can be properly accepted as eloquent of the strength of the evidence against the applicant. As Hunt J said in the same case (at 752), the common law accepts that a conviction results from a trial which must be taken, until the contrary be shown, to have been properly conducted and without error of law. As was pointed out during argument in this case, the fact of conviction means that, whilst a presumption in favour of bail may continue, the presumption of innocence does not. The applicant, both before the trial judge and in argument before us, sought to pursue the strength of his case on appeal. In our view, this was misconceived on this application at this time. The significance of conviction of these charges, and the circumstances of them, is that the applicant must appreciate that a significant custodial sentence is a virtual certainty. Indeed, any realistic assessment would indicate the likelihood that there would be a significant further period of imprisonment to serve before parole, even if all time served to date is counted towards the sentence, as is to be expected. 16 The applicant submitted that reliance on this head of opposition to bail was a change of position as it had not been seriously pressed on previous bail applications, and was not a ground relied upon by the judge below. He argued (as we have said) that he had a strong case on appeal, and was anxious to clear his name. Furthermore, he had family ties in Australia, which made absconding not a possibility. 17 It is plain from the material before the judge below, and from the material which the applicant put before us in relation to an earlier bail application, that he is particularly unhappy in custody and claims to have had some unhappy experiences. The curious, if not bizarre, circumstances of the offence show aberrant behaviour for a person of the antecedents of the applicant. The applicant included within the appeal papers a recent psychiatric report. This was not before his Honour. The applicant does not, from submissions he made before us, accept some of the opinions expressed by the psychiatrist. Whilst only limited use can properly be made of this material for the purposes of this application, it does underline the real possibility of irrational behaviour on the part of the applicant. 18 When all of these circumstances are considered, in our opinion there is a real likelihood that the applicant, if granted bail, would not appear for sentence on the date fixed. As explained in Dunstan (supra), this does not mean that we are satisfied that it is more likely than not that he would abscond.

Interests of the applicant 19 We must then have regard to the interests of the applicant (s 22(1)(b) of the Bail Act) having regard to: (i) The period that the applicant may be held in custody if bail is refused, and the conditions under which he would be held in custody. The period was to be only some weeks and he was to be held on remand in the Australian Capital Territory rather than at Goulburn Gaol. It is true, as we have said earlier, that the delay in sentence is unacceptable, and so this further period of time in custody before sentence should not have occurred. However, we must also take into account the reality that it is likely that the extra time spent in custody now will not, in the long run, mean that the applicant spends any more time in custody than he ought to have. In saying this, we should make it clear that the comments we have made as to the likely sentence are not intended to fetter the sentencing discretion of the trial judge in any way, and what we have said in these reasons should not be used in any way against the applicant at the time of submissions as to sentencing. (ii) The need of the applicant to be free for the purpose of preparing for his appearance before court and obtaining legal advice, and for other purposes. The applicant has dispensed with the services of the lawyers he has hitherto retained, and needs to retain other lawyers and prepare for the hearing on sentence and the appeal which he has foreshadowed. He also has civil litigation to which he wishes to attend. This is plainly much better done if bail is granted.

(iii) The need of the applicant for physical protection. We give no weight to this consideration, notwithstanding the complaints of the applicant about his treatment in custody. There is no satisfactory basis for finding that the applicant is placed in any unusual jeopardy.

Protection of the community 20 We must then have regard to the protection of the community (s 22((1)(c) of the Bail Act). The only one of the statutory headings which we need consider is the likelihood of the applicant committing an offence while released on bail (s 22(1)(c)(ii)). We are not persuaded, on the material before us, that there is what can properly be described as a real likelihood of the applicant committing an offence while released on bail. The circumstances of the actual offences in question are so odd as to make repetition unlikely. The real likelihood of some irrational behaviour by the applicant does not, in our view, lead to the real likelihood of an offence being committed. There is nothing else in the material before us which would enable the relevant conclusion to be drawn. The reasons for caution in utilising this ground for refusal of bail are explained in Dunstan (supra).

Conclusion 21 We concluded that the likelihood (in the relevant sense) of the applicant not appearing for sentence outweighed the interests of the applicant in being at large so as facilitate the preparation of the plea on sentence and other litigation. Whilst facilities for retaining lawyers and giving instructions on remand are far from ideal, it is a disadvantage shared by many persons in custody. 22 We were satisfied that, having regard to the matters referred to in s 22, bail would and should be refused upon proper consideration. The appeal was, therefore, dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gallop, Higgins and Gyles.

Solicitor for the Respondent: Director of Public Prosecutions