Commonwealth DPP v Germakian

CATCHWORDS: CRIMINAL LAW - drug offences - importation - guilty verdict - bail extended until sentencing hearing - appeal against grant of bail - BAIL APPLICATION - Crown appeal - principles

Bail Act 1978 Crimes and Courts Legislation Amendment Act 2005 LEGISLATION CITED: Customs Act 1901 Judiciary Act 1903 Supreme Court Act 1970

Cain (No 1) (2002) 121 A Crim R 365 Chamberlain v The Queen (No 1) (1983) 153 CLR 514 House v The King (1936) 55 CLR 499 Peel v The Queen (1971) 125 CLR 447 R v Franco (Unreported, 23 July 1991) R v Brown (Unreported, 25 July 1991) R v Brown (Unreported, 15 March 1994) R v Budiman (1997) 97 A Crim R 548 R v Hilton (1987) 7 NSWLR 745 CASES CITED: R v Iskandar (2001) 120 A Crim R 302 R v Kissner (Unreported, 17 January 1992) R v Masters (1992) 26 NSWLR 450 R v Morton (Unreported, 15 May 1990) R v Southgate (1960) 78 WN(NSW) 44 R v Toubya (Unreported, 15 November 1990) R v Velevski (2000) 117 A Crim R 30 R v Wilson (1994) 34 NSWLR 1 Roberts and Lardner (1997) 97 A Crim R 456 Ruhani v Director of Police (2005) 79 ALJR 1431 Solomons v District Court (NSW) (2002) 211 CLR 119

PARTIES: Commonwealth Director of Public Prosecutions Mendoza Hahn Germakian

COUNSEL: A: S M McNaughton R: T M Healey

SOLICITORS: A: Commonwealth DPP, Sydney R: Eakin Lawyers, North Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40615/06

IPP JA TOBIAS JA BASTEN JA

Wednesday 4 October 2006 COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v MENDOZA HAHN GERMAKIAN Judgment 1 IPP JA: I agree with Tobias JA. 2 TOBIAS JA: On 18 May 2005 the respondent was charged pursuant to s233B(1)(a)(iii) of the Customs Act 1901 with importing into Australia a commercial quantity of cocaine. On that date the respondent was taken into custody at the International Terminal at Sydney Airport having arrived from Los Angeles earlier that day. He was travelling on an Australian passport and is an Australian citizen. He had no check in baggage on the flight, but had taken on board a black suit bag and a backpack and he admitted to Customs Officers that he had packed them himself and was aware of their contents. 3 On 3 August 2005 the respondent was committed to Sydney District Court for trial. On that day he applied for bail which was refused. On 4 August 2005 he made an application to the Supreme Court for bail which was opposed by the Crown but granted by Hulme J subject to conditions. Pursuant to s45 of the Bail Act 1978 (the Act), the Crown sought review of that decision which was heard by Hall J who, on 12 August 2005, affirmed the decision to grant bail made on 4 August 2005 subject to the conditions which had then been imposed. 4 The respondent's first trial in respect of the subject charge commenced on 3 April 2006. He pleaded not guilty. On 11 April 2006 the trial was aborted because the jury were unable to agree on a verdict. The trial judge, Judge Taylor, continued the respondent's bail on the existing conditions. 5 The matter was listed for a second trial to commence on 18 September 2006. Again, the respondent pleaded not guilty to the charge contained in the indictment. The trial proceeded before her Honour Judge Murrell until 22 September 2006 when the jury brought in a guilty verdict. The matter was then adjourned by her Honour to 17 November 2006 for a sentencing hearing. Notwithstanding that the respondent had been found guilty of the offence charged, he made application for bail to be continued until the sentencing hearing. This was opposed by the Crown but granted by her Honour upon the same conditions as before. There was no issue but that her Honour had the power to grant bail for the period between the date of the respondent's conviction and his sentencing: see ss6(c)(ii) and 16(e1) of the Act. 6 On 25 September 2006 Commonwealth director of Public Prosecution (the Director) requested a review of her Honour's decision pursuant to s48(1)(a)(iv) of the Act. On 28 September 2006 Latham J remitted the matter to this Court pursuant to s51 of the Supreme Court Act 1970 and in accordance with the practice adopted since 1979 of applications of this nature, when made to the Supreme Court, being referred to the Court of Appeal: see R v Budiman (1997) 97 A Crim R 548 at 549. 7 Given that the offence in respect of which the respondent was found guilty was one under s233B of the Customs Act, s8A(2) of the Act applied to the respondent's original application for bail before Hulme J and continues to govern this Court's approach to the Director's request for review of the decision of Judge Murrell to continue bail notwithstanding that the respondent had been convicted of the offence charged within the meaning of the Act (see the definition of "conviction" in s4(1)). Section 8A(2) provides as follows: "A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the … court that bail should not be refused." 8 The respondent is "a person accused" notwithstanding that he has been relevantly convicted of the offence charged: see s4(2)(a) of the Act. 9 The principles applicable to an application for bail (before conviction) and to which s8A applies are, in my view, accurately set forth in the judgment of Hall J at [29]-[36]. In setting out those principles, his Honour applied the following statement of Hunt CJ at CL in R v Kissner (Unreported, 17 January 1992) where, in following an earlier decision of Wood J, his Honour said: "The presumption against bail expressed in s8A imposes a difficult task upon an application to which the section applies. Its effect is not merely to place an onus upon the applicant to establish his entitlement to bail. He must satisfy the court that bail should not be refused. Wood J said (and I agree) that the presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail … Wood J also adopted (as I do) the views expressed by Badgery-Parker J in a series of cases that, by the presumption against bail enacted by s8A, the Legislature intends the courts to place less weight upon the circumstances which are common to all applicants, and more weight upon the strength of the Crown case against the applicant in the particular case under consideration. The strength of the Crown case has become the prime consideration where s8A applies: see for example: Regina v Michael Youssef Toubya (15 November 1990); Regina v Garry Roy Morton (15 May 1990); Regina v Antonio Franco (23 July 1991); Regina v David Clyde Brown (25 July 1991), all unreported. Common to all bail applications are the circumstances that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, an usually with severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence and to support his family. Also common to most bail applications by persons charged with the offences to which s8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; an application would otherwise be unlikely to be considered in relation to such serious matter. The Legislature has, notwithstanding all those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s8A has erected. As Badgery-Parker J said: if the Crown case is a strong one, the applications for bail in which they will be sufficient to do so must necessarily be somewhat special, and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one. On the other hand, if the Crown case is not a strong one, the circumstances to which I have referred in the last paragraph will ordinarily be given greater weight, and the task of the applicant (although still a substantial one) will be correspondingly less difficult." 10 The foregoing statement of Hunt CJ at CL was followed and applied by the Court of Criminal Appeal in R v Masters (1992) 26 NSWLR 450 at 473, by Kirby P in R v Brown (Unreported, 15 March 1994) and by this Court in Budiman at 550. 11 More recently, in R v Iskandar (2001) 120 A Crim R 302 at 305 [14], Sperling J, having cited the authorities to which I have referred, summarised the position in the following terms: "In view of the authorities binding on me, I proceed on the basis that where s8A applies, an application for bail should normally or ordinarily be refused. A heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not the exclusive consideration. Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case. The application must be somewhat special if the Crown case in support of the charge is strong." 12 In Iskandar, Sperling J determined that bail should not be refused as the applicant had very strong community ties with her parents, her siblings and her child as well having no criminal record. Furthermore, there was specific evidence tending to indicate a probability that the applicant would appear in court given the security which her parents had provided over the equity in their home. A further factor in that case (see [21]) was that it was not part of the Crown case, so far as the evidence before his Honour disclosed, that the applicant had any personal involvement in the procurement of drugs as distinct from their distribution. 13 Sperling J further considered the matter in R v Cain (No 1) (2002) 121 A Crim R 365. The applicant had been charged with two counts of conspiracy to import commercial quantities of ecstasy and cocaine. Accordingly, s8A of the Act applied. After referring to his judgment in Iskandar, his Honour had regard to a number of considerations referred to in s32 of the Act and although he assumed for the purpose of the application that there was a strong Crown case and, therefore, a strong motivation for flight, he nevertheless found that the applicant had very strong community ties with his de facto wife, his children and his extended family and that there had been no previous failure to appear in court, a factor that was fortified by the prospect of forfeiting a sum in excess of $1 million secured over real estate owned by members of his family. 14 Of particular relevance were his Honour's observations (at 367 [9]) that, with respect to the applicant's own interests, "he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial for [sic] a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights." 15 Section 32 of the Act sets out the criteria which a court is obliged to take into consideration when determining whether to grant bail to an accused person. Relevantly, those considerations include the probability of whether or not the applicant will appear in court in respect of the offence for which bail is being considered (s32(1)(a)); the interests of the applicant having regard to the period that he or she may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody (s32(1)(b)(i)); and the protection and welfare of the community having regard to the nature and seriousness of the offence, whether or not the person has failed to observe any reasonable bail condition previously imposed in respect of the offence, the likelihood of the person interfering with evidence, witnesses or jurors and whether or not that person was likely to commit any serious offence while at liberty on bail (s32(1)(c)). 16 It is apparent that the above factors referred to in s32 of the Act were taken into consideration by, and were such as to persuade Hall J to affirm the decision of Hulme J of 4 August 2005 to grant the respondent conditional bail. His Honour considered (at [37]) that although there could operate a strong incentive for the respondent not to answer bail because of the likely penalties that might be imposed upon him if he was convicted, given the short time that he had been on bail there was no evidence to reinforce that concern. 17 Furthermore, his Honour found that there was no evidence which established a potential capacity to abscond created by the existence of overseas contacts or substantial financial resources. Although he was mindful of the overseas element of the alleged offence, his Honour considered that the evidence did not substantiate any alleged link or association between the respondent and overseas contacts. His Honour also considered that there was no evidence that the respondent had received any financial benefits from the alleged importation of the relevant drugs which were estimated to have a street value between $1.3 and $1.6 million. 18 I pause here to observe two matters. The first is that in a case to which s8A applies, such as the present, the s32 considerations to which I have referred do not have the force that they otherwise would have in cases to which s8A would be inapplicable. As was Hunt CJ at CL observed in Kissner, by enacting s8A with respect to an offence such as the present, the legislature intended the court to place less weight upon the circumstances which are common to all applicants for bail and more weight upon the strength of the Crown case against the applicant in the particular case under consideration. 19 Accordingly, given the heavy burden that rests upon an applicant to satisfy the court that bail should be granted in a case to which s8A applies, and that the application must be "somewhat special" if the Crown case in support of the charge is strong, the mere fact that a consideration of the relevant s32 considerations would ordinarily support the grant of bail is not of itself sufficient to displace the presumption against bail in relation to offences to which s8A applies. 20 The second observation I would make is that, on one view of it, Hall J in [37] of his judgment, when observing that there was no evidence which established a particular capacity of the respondent to abscond or the existence of overseas contacts or substantial financial resources to enable or encourage him to do so, would seem, at least prima facie, to have reversed the burden of proof. With respect, I would have thought that to displace the presumption imposed by s8A, the onus did not lie upon the Crown to provide evidence which established a particular capacity by the respondent to abscond or that he had received any financial benefits from the alleged offence, or that he had overseas contacts or other financial resources: rather, the onus lay with the respondent to positively establish that he had no such capacity and/or that he had no link or association with the persons who supplied the drugs that he allegedly imported. However, it must be acknowledged that the Court has not been favoured with a transcript of the evidence before Hall J which may have related to these matters. 21 The foregoing notwithstanding, it is fair to say that Hall J also declined to accept that as the matter stood at the time of the application before him, there was no irrefutable Crown case against the respondent. At [39] of his judgment, his Honour observed: "In the context of statutory presumptions against a grant of bail, on the particular facts of the case such as the present, one cannot ignore or give no weight to the common law presumption operating in the accused's favour, the presumption of innocence, at least so far as that matter can potentially have relevance in assessing the level or extent of the strength of the Crown's case." 22 His Honour thus concluded that on the basis of the evidence before him and those factors referred to in s32 which he had identified as relevant to the presumption against bail which the respondent was required to overcome, the present was "one of those limited cases" involving an alleged offence under s233B of the Customs Act in which bail should not be refused. 23 According to the evidence before this Court and, in particular, the affidavit of Phillipa Jane Hill sworn 27 September 2006, who was responsible for the carriage and conduct of the matter on behalf of the Crown, it would appear that the respondent's defence to the offence charged was that he had no knowledge that his luggage contained the subject drugs. As the respondent's written submissions on this application confirmed, the issue at the trial was his actual knowledge and intent. He purported to support that defence by his sworn evidence at the trial. It is equally apparent that the jury did not believe him: hence, their finding of guilty as charged. 24 This notwithstanding, application was made to Judge Murrell for the respondent's bail to be continued until the sentencing hearing on 17 November 2006 on the following grounds: (a) The respondent had been granted bail on 4 August 2005, which had been affirmed on 12 August 2005; (b) The respondent had not breached any conditions of that bail and had, in particular, reported daily to the police prior to trial and continued to reside with his mother; (c) The respondent's mother had agreed to forfeit the sum of $90,000 secured by way of second mortgage over her home unit in the event that the respondent failed to comply with any of his bail conditions; and (d) The respondent had a young son who, although he resided with his mother, nevertheless had a strong bond and regular contact with his father. 25 The Crown opposed the application upon the grounds, inter alia, that the jury had heard the Crown case and the evidence from the respondent but nevertheless had returned a verdict of guilty. Further, in the circumstances that the quantity of cocaine imported was 13 times the commercial quantity and given that the maximum penalty for the offence charged was life imprisonment and/or a fine of $825,000, recent authorities involving the importation of a similar quantity of drugs had resulted in custodial sentences of some years being imposed, including non-parole periods ranging from six to seven years. Quite properly, the respondent accepts that a lengthy custodial sentence will be imposed on him when he is sentenced. 26 The Crown thus submitted that having been convicted and inevitably facing a sentence of a significant term of full-time custody, although one might accept, given the nature of his defence, that he was not a flight risk before trial, his conviction constituted a significant change in circumstances since he was granted bail on 4 August 2005, thus rendering him a greater flight risk than previously. 27 Unfortunately, we have not been provided with any transcript of Judge Murrell's decision on the respondent's application. According to the affidavit of Ms Hill, it would appear that after hearing argument, her Honour merely concluded that she had no concern that the respondent would not attend court on 17 November next for sentence given his previous compliance with his bail conditions. On that basis, she granted the respondent's application to continue bail upon those conditions. 28 In Budiman Mason P, with whom Powell and Sheller JJA agreed, revoked bail upon the basis that the trial judge, when continuing bail after Mr Budiman's conviction and before he was sentenced, had taken into account that it was desirable that he have access to his legal representatives to prepare for his sentencing hearing and that he had been most scrupulous in responding to his bail in the period prior to his conviction. However, notwithstanding those factors, in the President's opinion, the trial judge had erred in failing to give effect to the conviction, the likely sentence and the imperative of s8A with the result that bail was revoked. 29 Furthermore, the President assumed that Mr Budiman's conviction would be the subject of an appeal in which event s30AA of the Act provided that notwithstanding anything in the Act, if an appeal was pending in the Court of Criminal Appeal against a conviction on indictment or a sentence passed on conviction on indictment, bail must not be granted by that Court or any other court unless it was established that special or exceptional circumstances existed justifying the grant of bail. His Honour considered that those principles would apply to a case such as the present at least by way of analogy. His Honour referred to the reference by Kirby P, with whom Sheller JA agreed, in R v Wilson (1994) 34 NSWLR 1 at 6 to the opinion expressed by Badgery-Parker J in R v Waters that "in an application for bail, where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed." 30 In the same case Hunt CJ at CL (at 7) also agreed with that statement of Badgery-Parker J in Waters and added that an appeal would have "to have an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application." 31 Wilson was a case like the present where no appeal against conviction had been filed although an undertaking to lodge one had been given. In those circumstances, Kirby P expressed the view, with which Sheller JA and Hunt CJ at CL agreed, that it would be clearly appropriate to have regard to the circumstances for which Parliament had allowed bail in s30AA, namely, only in "special or exceptional circumstances". 32 In Budiman Mason P also emphasised that s30AA was only relevant as indicative of a more general principle as its terms had not yet been directly engaged. Nevertheless, it would be difficult to see any difference in principle in the application of s8A where on the one hand the offender has been convicted but not yet sentenced but where a custodial sentence was inescapable and, on the other, where the offender had been sentenced to imprisonment but had lodged an appeal to the Court of Criminal Appeal either against conviction or against sentence. In other words, if in the latter case special or exceptional circumstances must exist to justify a grant of bail, it is difficult to see any reason in principle why a similar test should not apply to a case such as the present where the respondent has been convicted and is facing the inevitability of a custodial sentence of some years. 33 In my opinion, therefore, I would conclude on the material before the Court that the trial judge, in determining to continue the respondent's bail, failed to give effect to the fact that the respondent had been convicted of the offence charged, that the likely if not inevitable sentence would involve a period of imprisonment and the imperative of s8A(2) that the Court must be satisfied that bail should not be refused in the circumstances. Subject to what follows, I would therefore propose that bail be revoked. 34 In his written submissions to this Court, the respondent has requested that the following factors be taken into account should this Court be of the view that her Honour's discretion miscarried so that this Court should exercise the discretion to grant bail afresh:

(a) The respondent's desire to conclude a business marketing course currently being undertaken at TAFE that concludes mid-November 2006 prior to the sentencing date of 17 November 2006.

(b) The respondent has a 9 year old son and needs further time to prepare his son for the psychological separation incurred when he goes into custody pending the hearing of his appeal to the Court of Criminal Appeal.

(c) The respondent currently conducts a business that depends entirely upon him to operate and he needs time to negotiate the sale of the business.

(d) The respondent intends to lodge an appeal against the finding of the jury.

(e) The respondent needs time to raise funds to cover the cost of his appeal.

(f) The respondent needs time to lodge his current taxation returns.

(g) The respondent needs time to sell his personal property.

(h) The respondent has part-time care of his son and needs time to make other arrangements for him, especially collecting him from school and taking him to sports and other school functions. He has custody each second weekend.

(i) The respondent has reported daily to police since being granted bail in August 2005 and has appeared on every occasion when required at court and attended every meeting required by his legal advisers.

(j) The respondent has surrendered his passport and has sufficient family ties so that he should not be considered a flight risk. His mother is his only relative in Australia and they have a very close relationship. Security bail has been lodged by the mother on her only home, which would be in jeopardy if he breached bail by failing to appear for sentence. 35 Factors (b), (h), (i) and (j) above generally correspond with those that were advanced before Judge Murrell. Of themselves they could not, in my opinion, justify the continuation of bail which her Honour granted. This because it is apparent, as I have already observed, that her Honour did not give effect to the fact that the respondent had been convicted of the offence charged, that it was likely, if not inevitable, that he would be sentenced to a period of imprisonment and to the imperative of s8A that the court must be satisfied that bail should not be refused in the circumstances. 36 The question which then arises is whether factors (a), (c), (d), (e), (f) and (g) are such as to outweigh those which her Honour failed to take into consideration so as to justify this Court coming to the view that bail should not be refused. I have already referred to factor (d) which, in my view, tells against any such finding. Factors (e), (f) and (g) are not such, in my opinion, as to justify such a finding, especially in the absence of sworn evidence to support them. For instance, there is no reason why the respondent cannot lodge his current taxation returns notwithstanding that he is in custody. The same observation applies to factors (e) and (g). 37 I do not regard factor (c) as carrying much weight given the findings of Hall J as to the support which the respondent has received from his family and friends. There does not appear to me to be any reason why he cannot delegate to an appropriate person the task of negotiating the sale of his business and personal property. 38 As to factor (a), I can accept for present purposes that it would be desirable for the respondent to complete the business marketing course which he has apparently undertaken. However, there are no doubt many examples where a convicted person would wish to be able to be free to complete courses and/or otherwise deal with their business affairs against the prospect of future incarceration. There is nothing unusual about such matters. Whether taken individually or collectively, I do not regard the factors now relied upon by the respondent as sufficiently special or exceptional to outweigh the statutory presumption, especially after conviction, that bail should be refused. 39 Accordingly, not only did the exercise by her Honour of her discretionary power to continue the respondent's conditional bail miscarry, but a reconsideration of the factors relied upon by the respondent to justify an exercise by this Court of its discretion to grant bail are insufficient to satisfy me, in terms of s8A(2), that bail should not be refused. 40 Accordingly, I would propose that the conditional bail granted by Judge Murrell on 22 September 2006 be revoked. 41 BASTEN JA: The power of the Supreme Court invoked in the present proceedings is to "review any decision … in relation to bail", including a decision of the District Court: Bail Act 1978 (NSW), s 45(1). The decision under review was made by Judge Murrell in the District Court at Sydney on 22 September 2006. Bail was granted, subject to conditions, the final condition apparently being that the accused, Mendoza Germakian, appear before the Court for sentence on 17 November 2006. 42 The power of the Court under Part 6, Division 2 of the Bail Act can only be exercised at the request of certain persons, one of whom is the Director of Public Prosecutions. The Director of Public Prosecutions (Cth) is prosecuting Mr Germakian is an offence of importing a commercial quantity of cocaine, contrary to s 233B(1)(a)(iii) of the Customs Act 1901 (Cth) as in force at the relevant time. The trial Court, and this Court, exercises federal jurisdiction for this purpose. The powers conferred by the Bail Act should, pursuant to s 68(1) of the Judiciary Act 1903 (Cth) apply, these Courts respectively being vested with federal jurisdiction by s 68(2): see Solomons v District Court (NSW) (2002) 211 CLR 119 at [3]. 43 Although the reference to the Director of Public Prosecutions, as a person who may request review of a bail decision, in s 48(1) of the Bail Act, must be understood as a reference to the State Director, the conferral of federal jurisdiction under s 68(2) of the Judiciary Act will result in a conferral of power on the Commonwealth Director, by a combination of the State and Commonwealth laws: see Peel v The Queen (1971) 125 CLR 447. 44 Section 8A of the Bail Act provides that in particular cases to which the section applies, a person "is not to be granted bail unless the person satisfies the … court that bail should not be refused". As in force prior to its amendment by the Crimes and Courts Legislation Amendment Act 2005 (NSW), s 8A(1)(b) provided that the section applied to an offence under s 233B of the Customs Act 1901 (Cth). Despite the repeal of s 233B, and the present reference in the Bail Act inserted by the 2005 Amendment Act to the provisions which replaced s 233B, Part 15 of the Bail Act provides that s 8A, as in force before the amendments, "continues to apply in respect of offences under the Customs Act 1901" to which it applied prior to the amendments. Taken on their own, these provisions are constitutionally ineffective. They are given effect by operation of s 68(1) of the Judiciary Act. 45 The Director accepted, in written submissions, that the Court might decline to entertain the application, absent "special facts or special circumstances", pursuant to s 22A of the Bail Act. That approach was misconceived. Section 22A only applies in relation to an application where bail has already been dealt with by the Supreme Court. Further, it clearly refers to an application for bail under Part 4 and not to review of a bail decision under Part 6. 46 The proceeding undertaken in this Court is a "review" of a decision made by a judge of the District Court. In the matter of Budiman (1997) A Crim R 548 at 549 the President stated that "the jurisdiction of this Court is an original jurisdiction not depending upon demonstrating error on the part of the trial judge". His Honour noted that he had expressed a similar view in Roberts and Lardner (1997) 97 A Crim R 456. 47 Although the report of Budiman refers to an application to review a bail decision under "s 65" of the Bail Act, the application must, as in this case, have been brought under s 45. However, Roberts and Lardner was not such a case, but was an application to the Supreme Court under s 28 of the Bail Act. An application under s 28 undoubtedly invokes the original jurisdiction of the Court; an application for "review" under s 45 does not, at least where the decision under review is itself the decision of a judicial officer, in this case a judge of the District Court exercising the criminal jurisdiction of that Court. Even if principles applicable under Ch III of the Australian Constitution applied, this is not the first occasion on which the jurisdiction of a Court has been invoked: c.f. Ruhani v Director of Police (2005) 79 ALJR 1431 at [10] (Gleeson CJ); [39] and [49] (McHugh J) and [108] (Gummow and Hayne JJ). Accordingly, in my view, the applicant in the present proceeding must demonstrate error in the exercise of a discretionary power on the part of the trial judge. 48 The Director is hampered in that exercise by the absence of any reasons for the decision under review. However, that circumstance is not fatal to the application. If, from the objective features of the case, this Court can discern that, applying proper principles, a different decision should have been reached, it is open to the Court to infer that an error of the kind identified in House v The King (1936) 55 CLR 499 at 505 in fact occurred. 49 The power of the Court to grant bail in the circumstances is said to derive from a combination of ss 6(c)(ii) and 16(e)(i) of the Bail Act. The latter deems "the period between the conviction of a person and the sentencing of the person" to be the period of an adjournment, for the purposes of the former. For this purpose, the term "conviction" is defined in the Bail Act, s 4(1), to include a finding of guilt which in this case resulted from the verdict of the jury. 50 Despite the finding of guilt, Mr Germakian remains "a person accused of an offence" of the kind with which he was charged and put on his trial: see definition of an accused person: s 4(2)(a). Accordingly, the presumption against bail contained in s 8A of the Bail Act applies. However, despite that presumption, Mr Germakian had been granted bail prior to the recent trial at which he was convicted. 51 Although it would seem that Mr Germakian has probably been "convicted" of an offence, for the purposes of the Criminal Appeal Act 1912 (NSW), he has not yet appealed, or sought leave to appeal, against that conviction. He has expressed an intention, through his counsel, to do so. It follows that the terms of s 30AA of the Bail Act are not yet engaged: if they were, neither the District Court nor this Court would be entitled to grant bail unless it were established "that special or exceptional circumstances exist justifying the grant of bail". In that case, a highly significant factor would be the likelihood of success on appeal: see R v Wilson (1994) 34 NSWLR 1 at 4E and 6D (Kirby P, Sheller JA agreeing) and at 7, Hunt CJ at CL referring to R v Southgate (1960) 78 WN(NSW) 44, Chamberlain v The Queen (No. 1) (1983) 153 CLR 514 at 519-520 (Brennan J) and R v Hilton (1987) 7 NSWLR 745 at 746-747 and 752; see also Velevski (2000) 117 A Crim R 30. In circumstances where a significant sentence of imprisonment is an almost inevitable result of conviction for an offence involving more than 10 times the commercial quantity of cocaine, a similar test would generally be applicable where the period for which conditional liberty was sought was no more than two months. 52 Chamberlain (No. 1) involved an application for bail pending determination of an application for special leave to appeal to the High Court; Brennan J stated: "I may say at once that I do not think there is any likelihood of her failing to answer to her bail if bail were granted."

His Honour noted that the practice of granting bail pending a special leave application "will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending". However, his Honour continued (153 CLR at p 519): "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. … 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." 53 The difference between a special leave application in the High Court and an appeal to the Court of Criminal Appeal is that, in the latter case, a superior court has not yet ruled on the existence of an appellable error occasioning a substantial miscarriage of justice. Further, where bail is sought between the jury verdict and the imposition of sentence, it cannot be said that the effect of a grant will be to suspend or defer the sentence. Nevertheless, for the reasons of principle articulated by Brennan J, the fact of the jury's verdict must be treated as a relevant consideration to which very significant weight should be given. That approach is consistent with the approach adopted in Wilson, a case in which Kirby P refused bail pending sentence, despite stating that he would "unhesitatingly say that I believe that the applicant would" answer to a grant of bail: 34 NSWLR at 3G. To this approach must be added the statutory presumption against the grant of bail, contained in s 8A. 54 Tobias JA has identified and considered each of the factual considerations relied upon by Mr Germakian in seeking to support the bail granted by the trial judge. However, as his Honour demonstrates, the circumstances relied on in the present case, as in Wilson, demonstrate no sufficient character of the exceptional, special or even the unusual. Accordingly, the proper inference is that the discretionary power exercised by the trial judge miscarried. The review should be granted and bail revoked.

03/11/2006 - Minor typographical errors - Paragraph(s) [47], [49]

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