Power to review a review of a bail decision
32 There is another procedural (indeed, statutory) issue to which I should immediately refer. It will be observed from the chronology of events that the Full Court decision which revoked bail was a review of the decision of Higgins J, which was itself a review of a decision of the Chief Magistrate. That Full Court decision established the status quo and, as will be seen later, was pivotal to the reasoning of the Chief Justice in the present case. The Chief Justice, of course, had been a member of the Full Court.
33 It is apparent from the decision of the Full Court that the then counsel for the appellant had argued unsuccessfully that there was no jurisdiction in the Supreme Court to review a decision of the Supreme Court which was itself a review of the initial decision by a magistrate. The appellant (who appeared before us in person) did not raise any point about this in the application before the Court and it was not raised before the court below. The Director objects to the point being considered. The question of successive reviews was, however, raised on behalf of the Director in order to submit that this Court should not grant leave to appeal, but should leave the appellant to that remedy. It was submitted that successive reviews were authorised, subject to the power conferred by s 45(7) to refuse to entertain a request to review if the Court is satisfied that the request is frivolous or vexatious. This raises a question of considerable general importance which is purely a matter of statutory construction. There is no reason not to consider it particularly as the substance of it has been raised in any event.
34 It is, to say the least, most unusual for there to be a full rehearing review of the decision of an inferior tribunal by a single judge being subjected to another full rehearing review by another single judge, and it is strictly that jurisdiction which was exercised by the Full Court here. Normally, when a Court is authorised to exercise a power, such as a power to review, the Court is functus once the power is exercised by a single judge, subject to any special appeal provisions. There is no appeal, even to the Court in banc. See, for example, Maric v R [1981] 2 NSWLR 100 and DPP v Kanfouche [1992] 1 VR 141. The Supreme Court Act 1933 (ACT) is consistent with this pattern. It provides that jurisdiction will generally be exercised by a single judge (s 8), although there is power for a judge to order that the jurisdiction of the Court in the matter shall be exercised by the Full Court (s 13), as happened in the present case. The Act does not provide for appeals from the decision of a judge to the Full Court. The appellate review of decisions of judges of the Supreme Court is by this Court pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth).
35 The nature of bail, and the provisions of Part IV, make it most unlikely that the legislature would have intended unlimited successive reviews, subject only to the power conferred by s 45(7). Bail is always temporary. Bail is defined to mean authorisation granted to a person under the Act to be at liberty (s 3). An accused person may be granted bail only in respect of any period during which he or she is not required to attend court in relation to the offence with which he or she has been charged (s 5). When the accused comes back before the Court, another decision about bail may be made.
36 Part IV envisages that the Court has power to enlarge, vary or revoke bail in applications pursuant to it (s 19(1)(b)). Changed circumstances should be dealt with pursuant to this power rather than by way of review under Part VI which in my opinion is restricted to cases where the applicant wishes to contend that the decision under review was wrong, albeit perhaps on different materials. Part VI is framed in a fashion typical of appellate review by way of full rehearing. Section 43(2) implicitly proceeds upon the basis that there may only be one review absent special provision.
37 I do not regard s 39(5)(d) or s 40(b) as a sufficient indication to the contrary of this analysis. I rather read each as designed to ensure that the policy I discern is adhered to and to be, in effect, enacted out of an abundance of caution. The latter might have been thought desirable in view of s 43(2).
38 Leaving aside textual considerations, it is helpful to approach this question by bearing in mind that at common law there was no appeal (by review or otherwise) from decisions relating to bail. Court bail was simply dealt with by the Court having cognisance of the matter, subject to the general jurisdiction of the Supreme Court, as the superior court of the place, to grant or revoke bail. Any such order was the exercise of original, not appellate jurisdiction. Indeed, the Bail Review Committee 1976 (NSW) recommended against any provision for appeal from or review of a bail decision.
39 In the light of this, it would be odd, to say the least, if the policy were to not only permit reviews, but to permit successive reviews. It is difficult to think of any rational explanation for such a policy, and there is no relevant discussion in the Second Reading speeches. It would breed uncertainty and proliferate litigation. It would tend to take control of bail away from the trial court to successive Supreme Court reviews. It would set up a de facto internal appeal structure in the Supreme Court, where none exists for other purposes. Above all, it is unnecessary. As I construe the Act, there is available one review of every initial bail decision by a Court plus the possibility of a Supreme Court review in relation to the decision of a magistrate. In addition, there is the possibility of an appeal to this Court. This is a significant change from the common law position, and is an adequate safeguard against aberrant exercise of discretion.
40 The nature of bail is such that the relevant circumstances change from week to week, and, indeed, day to day. The provisions of Part IV and V are designed to deal with those exigencies by de novo decisions at first instance. The possibility of a trailing series of reviews of past decisions seems anomalous. Indeed, this is illustrated by the situation which developed in New South Wales. The New South Wales Act had no equivalent of s 19(2) of the Act. Having considered the Report of the Bail Review Committee (1976) (NSW Parliamentary Papers No 46 of 1976), upon which the New South Wales Act was largely based, and the Second Reading speeches, this is not likely to have been a policy decision. It left a gap in the power at first instance, particularly in relation to the revocation of bail. That led to the review provisions of the Act being stretched, and then amended, to overcome the problem. Much of this is illustrated by the history of R v Masters (1992) 26 NSWLR 450 which had occurred prior to the enactment of the Act. The same gap does not exist in the Act. The difference in the relevant provisions is sufficient to distinguish the remarks in R v Hamill (1986) 25 A Crim R 316 relied upon by the DPP. I also observe that those parts of the judgment relied upon by the DPP were obiter dicta, as that was the first review of an initial decision. It is also not clear that the point was argued.
The significance of the approach by the Full Court
41 It follows, in my opinion, that the Full Court decision was made without statutory authority, and, if there had been an appeal on that ground, it would have been set aside. There was no appeal, and the judgment stands as that of a superior Court. In my opinion, neither that circumstance, nor failure of Mr Dunstan to take the point before his Honour or here, relieves this Court from the duty to form a view as to the validity of the judgment. As I have said, the question is one of statutory construction unaffected by any facts, and was pivotal to the decision below.
42 This may be illustrated by the following quotations from his Honour's judgment, all taken from pages 377 to 379 inclusive of the appeal papers:
· … there is no obligation cast on the applicant to show that the magistrate's decision was based on some error of law or fact and in relation to the present application, the Court will act on the material before it. Nevertheless, the fact is that the Full Court has previously revoked bail for reasons given at the time and unless there has been a change in circumstances, or some other extraordinary circumstances that would justify a judge coming to a decision different from that of the Full Court, that decision must be accorded due respect.
· …I should say I do not intend to set out the factual circumstances as alleged by the prosecution or the substance of the charges as they relate to those factual circumstances, beyond what was said in the Full Court.
· Ultimately, it is necessary to say only that the position as it was perceived by the Full Court has not essentially changed.
· As I have said, the prosecution case in relation to all matters is essentially as was disclosed to and perceived by the Full Court, save that there are fewer charges and some are pursuant to a section of the Crimes Act 1914, which was an issue not addressed by the Full Court.
· …I should also say that I am of the view that the situation as perceived by the Full Court with regard to issues relating to danger to the public if the accused were released on bail, remains essentially the same.
In my opinion, his Honour's reliance upon the invalid Full Court decision was inevitable, but amounts in substance to error. The judgment was not authorised by the Act, and should not have been given.
43 His Honour held that the Full Court decision had established the principles applicable to the grant or refusal of bail and the review thereof, and said that he was applying those principles. There are aspects of the Full Court decision in this respect which require close examination because of the manner in which they influenced his Honour's decision in this case and because of their general importance to the administration of justice in the Australian Capital Territory.
Importance of presumption in favour of bail
44 Analysis of the application of the Act to this case must commence with s 8(2), which is set out above, in conjunction with s 55, which provides as follows:
Where a court or an authorised officer, in making a decision in relation to bail (not being a decision in proceedings for an offence committed in connection with bail), is to be, or may be, satisfied as to any matter, it is sufficient if the court or authorised officer is satisfied on the balance of probabilities.
45 The combined effect of these sections is that the appellant was entitled to bail unless the Court was satisfied, on the balance of probabilities, that having regard to the applicable matters referred to in s 22, the Court was justified in refusing bail. The Full Court do not expressly refer to either of sections 8(2) or 55 in the critical part of their reasoning. The only oblique reference to s 8 is where, in paragraph 26, they referred to the prima facie right to bail that the Act confers. The Full Court accepted the DPP's submission that s 22 was not a code, and that the three matters it listed were not exhaustive. This is a debatable question and there is no necessity to decide it for the purposes of this case as no matter outside s 22 was taken into account.
46 I return to the significance of s 8(2). The decision in R v Hilton (1987) 7 NSWLR 745 left no doubt as to the fundamental change which had been made in the law relating to bail by the Bail Act 1978 (NSW), which is the broad model for the Act. It is to be recalled that the NSW Act had been introduced following the Report of the Bail Review Committee, 1976. It was a major reform. In Hilton, the applicant for bail was tried and found guilty of conspiring to bribe a public officer, and was sentenced to nine years penal servitude with a non-parole period of six years. The application was for bail pending appeal. It was held that, notwithstanding the fact that after conviction there was no prima facie entitlement to a grant of bail, the prisoner was nonetheless entitled to apply and in the absence of any statutory criterion, the Court could not imply that the necessity at common law to find special or exceptional circumstances before granting bail to a convicted person applied. Bail was, in fact, granted. By way of footnote, the New South Wales Act was amended thereafter, and the Act picks up the amendment (see s 9).
47 It is also worth recalling that Street CJ said in Hilton, at 748E, in relation to a case (to be contrasted with the present) where there was no statutory prima facie entitlement:
…, a convicted person must make a good case justifying the exercise in his favour of the statutory discretion under s 13 to grant him bail. In this sense he bears an onus of putting forward material sufficient to satisfy the Court that bail should be granted to him. The Court must be satisfied of any relevant matter on the balance of probabilities (s 59).
(Section 59 is the equivalent of s 55 of the Act).
This passage underlines the practical and legal significance of the statutory presumption of bail where it does apply by virtue of s 8 and of the onus borne by the prosecution if it wishes to displace that presumption.
48 The same point is made in the cases in relation to the statutory presumption against bail for certain drug offences contained in s 8A of the New South Wales Act, the substantive provision of which is:
A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the authorised officer or court that bail should not be refused.
49 In R v Masters (supra) at 473, the Court of Criminal Appeal said, in relation to this section:
The presumption against bail expressed in that section imposes a difficult task upon the person so charged to persuade the court why bail should not be refused. That 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. That is the effect of a series of decisions by single judges of the Supreme Court, most recently collected and discussed in R v Kissner (Hunt CJ at CL, 17 January 1992, unreported). We agree with that interpretation of s 8A.
This line of cases was again referred to by the Court of Appeal in R v Budiman (1997) 97 A Crim R 548 at 550.
50 The terms of s 8A in the New South Wales Act are merely the obverse of s 8(2) of the Act and the presumption in s 8 should be accorded no less weight than the courts attached to the legislative intention behind s 8A.
51 The same point is put positively by Legoe J of the South Australian Supreme Court in Farquar v Fleet (1989) 50 SASR 490. The applicant had been charged with murder. The bail authority, namely a special magistrate, refused bail, relevantly on the basis of the seriousness of the charge and the reasonable fear that the applicant would tamper with evidence pertaining to the charge. The matter went to the Supreme Court for review. It was governed by the Bail Act 1985 (SA) and his Honour, at 492, summarised the effect of s 10 of that Act as:
… the bail authority shall release on bail unless, having regard to the matter specified in subss (a)-(g) of s 10, "The bail authority considers that the applicant should not be released on bail".
52 An argument was put that the previous authorities in South Australia which had held that in cases with the serious charge of murder the applicant for bail should establish some exceptional or special circumstances before bail is granted still applied. His Honour rejected this, at 493, in the following terms:
… on a proper interpretation of the Bail Act 1985, particularly ss 10 and 11, I do not consider that the same principles apply. Indeed, as I read the Bail Act, the starting point for the court reviewing a bail authority's decision and, indeed, the discretion that the bail authority and court of review should exercise, is one based on the fact that bail should be granted and the applicant released unless the factors set out in the sub-sections of s 10 persuade the bail authority (or the court reviewing the bail authority) that the applicant should not be released on bail.
53 I also note that in R v Masters (supra), which it will be recalled was a case dealing with s 8A of the New South Wales Act, their Honours said at 473F:
Smart J proceeded … upon the basis that, as part of discharging its onus to show why bail should not be granted, the Crown had to establish that Richards was likely to commit further serious offences if released on bail. The onus which he applied was incorrect. For the purposes of deciding whether Richards had persuaded him that he was not likely to commit suchoffences, it was necessary for Smart J to make his own assessment as to whether Richards had committed the further offence in South Australia to which he had confessed in his signed record of interview. That obligation was not satisfied by merely saying that it was a question to be determined by a jury in South Australia.
By transposing the parties and the onus, this assists in appreciating the task which the prosecution has in carrying the onus of properly satisfying a court that the presumption in favour of bail should be displaced where it applies.
Risk and community protection
54 In this context, the Full Court in the present case said in paragraph 21:
Furthermore, whilst s 22(1)(a) uses the term "probability" and s 22(1)(c) uses the term "likelihood", there is no requirement of proof on the civil standard that the conduct of the kind specified is likely to occur.
Whilst this may be correct, a problem arises when this is read with the later statement at paragraph 26:
However, it is the matter of the protection of the public specified in s 22(1)(c) that causes us most concern. Any risk that the defendant might engage in the sort of conduct that gave rise to the charges he is facing is a strong indication that bail should not be granted, despite the prima facie right to bail that the Act confers. (emphasis mine)
These statements are liable to cause those endeavouring to follow the Full Court to fall into error by not giving proper weight to the effect of s 8(2).
55 In my view, it is wrong to approach the issue under s 8(2) and s 22(1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not (see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-8, 27 ALR 367 at 380-2). If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.
56 It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.
57 We do not sit on appeal from the Full Court judgment, and it may be that, notwithstanding the passages to which I have referred, when considered as a whole their Honours did not actually apply the wrong test. A problem is that the judgment below simply accepts the Full Court principles without further elucidation. His Honour did not expressly ask himself the correct question, and, as analysed below, the manner in which he dealt with the facts certainly supports the conclusion that he did not give proper consideration to the fundamental importance of s 8(2) as it applied to the case before him.
Changed circumstances
58 Furthermore, in my opinion, his Honour was in error in holding that the Full Court decision remained a safe guide to the exercise of his discretion, assuming that it ever was. I cannot agree with his Honour in thinking that the passage of time and events, and the evidence before him, had not significantly altered the factual substratum of the application. At the time of the Full Court decision, there had been no committal hearing and, indeed, no brief had been provided by the DPP to the appellant. By the time the evidence before the Chief Justice was complete, there had been a committal for trial involving the provision of the prosecution statements and the provision of material by the appellant to the committing Magistrate, which statements and material were also before his Honour. The appellant was cross-examined by the DPP before his Honour upon that material. Furthermore, a draft indictment had been provided (albeit on the morning of the hearing before his Honour to an unrepresented applicant) which omitted the most serious charge and some other charges, and included a whole new set of charges based upon a new statutory provision. The DPP had indicated to his Honour that there may be difficulties of proof of a number of the charges.
59 It was also significant that more than 3 months had passed since there had been any serious consideration of the personal and psychological situation of the appellant. In addition, a trial date had been fixed which involved a considerable expedition of a complex case in which legal aid had only just been granted to the appellant. It was necessary for both the appellant and his new lawyers to acquaint themselves with the matter. The appellant had not opposed the early date and, indeed, professed to be keen to have the matter on.
60 The gravamen of the Full Court's decision may be gathered from the following passages in paragraphs 26 and 28:
26. However, it is the matter of the protection of the public specified in s 22(1)(c) that causes us most concern. Any risk that the defendant might engage in the sort of conduct that gave rise to the charges he is facing is a strong indication that bail should not be granted, despite the prima facie right to bail that the Act confers. The concern of some of those to whom the packages were addressed was the subject of evidence to the effect that they would consider hiring private security services to ensure the safety of themselves and their families should the defendant be allowed bail. That concern, in our view, reflects the seriousness of the risk. …
28. We are of the opinion that, whilst the risk that the defendant will not answer bail cannot be overlooked, the risk of conduct endangering the life and safety of others whilst on bail is sufficiently high that it requires the refusal of bail. …In our view, the granting of bail poses an unacceptable risk of danger to the public. The protection of the public alone requires the revocation of bail.
It will be recalled that the Chief Justice, in his decision, expressly adopted the Full Court in that respect.
61 I have already dealt with the Full Court's reference to risk in this context. Leaving that aside, there were two main elements in the approach by the Full Court to the facts. The first was based upon the apparent seriousness of the charges and the danger which would exist to people if the conduct were repeated. The second related to the propensity of the appellant to repeat that conduct if bail were granted. It seems to me that the circumstances which were before, or should have been before, the Chief Justice relevant to each element were significantly different from those before the Full Court.
62 The Full Court had the following to say about the offences:
14. In summary, the offences are alleged to have been committed in early December 1998 when the defendant was alleged to have sent packages containing explosive devices through the post to each of the 28 persons named in the charges under s 19 and s 27(3)(e) of the Crimes Act. The devices were improvised from compressed gas cartridges. One of the devices exploded during routine mail sorting operations at the Fyshwick Mail Exchange, giving rise to the charge under s 129(2). No person received physical injury on that occasion, but the internal roofing of the Mail Exchange was damaged.
15. Following the explosion, investigations revealed that there were 21 packages in the Mail Exchange containing similar explosive devices in similar packaging. A further similar explosive device was delivered to a person in Sydney after having been returned through the post. Further and similar explosive devices were delivered through the post, to persons in Victoria, New South Wales and Queensland. …
23. There is no doubt that the offences charged are extremely serious and that, as we are informed, there is a strong circumstantial case against the defendant. However, apart from directing our attention to the absence of a report at this stage from explosives experts who examined the devices found, counsel for the defendant did not raise any contentious issues on the matter of the strength of the evidence or the likelihood or otherwise of conviction.
Circumstances of the alleged offences
63 The issue at that time would seem to have been the nature of the evidence to associate the defendant with the mailing of the explosive devices, which was described at that stage as being only in very general terms. For the purposes of bail, that association could be assumed by the time of the judgment below. In this sense, the prosecution case had improved. On the other hand, there was evidence which, if accepted, was consistent with the appellant wishing to send a warning to those to whom the packages were addressed, but with no intention that they be injured. Indeed, it was consistent with there being no recklessness involved. Various explanations or hypotheses in relation to the explosion which took place at Fyshwick were suggested and the appellant pointed to the fact that, whatever may have been the truth of it, nobody was injured. It seems to have been assumed by the Full Court that the packages were very dangerous. This was very much in issue before the court below.
64 The material before the Chief Justice very much altered the issue for bail purposes. It is no doubt true, as the Chief Justice said, that these were essentially jury matters, and it is also true that, as Mr Robertson for the DPP submitted to us, explanations could have been tailored to suit the prosecution brief when it was received. However, they inevitably, it seems to me, involved objective facts and circumstances which should have been part of the prosecution case on bail (as well as the trial), as to the precise nature of the alleged explosives and devices which were in fact contained in the packages which were intercepted and did not explode, and as to the degree of danger involved in sending them through the post.
65 There were two statements by Dennis John Sweeney, who describes himself as a qualified police bomb technician, one dated 16 December 1998 and the other dated 4 February 1999. Mr Dunstan has made much of the differences between, and the deficiencies of, these statements. Having read them, it seems to me that at best they give very general opinions without being tied back to the type of analysis one would expect of the actual devices and chemicals in the packages seized. Mr Robertson for the DPP accepted that this was so. Indeed, on 1 April 1999, the DPP wrote to the solicitors for the appellant in the following terms:
I refer to the CSI [Case Status Inquiry] hearing of the above matter in the ACT Magistrates Court on 30 March 1999 and note that the hearing has been adjourned until 19 April 1999.
The majority of the brief has now been provided to your office with the exception of the ballistics reports in relation to the explosive devices and the remaining reports from the scientific branch in relation to fingerprints and DNA sampling.
These reports will be provided prior to the next CSI hearing.
66 This was no doubt the point sought to be made by counsel for the appellant before the Full Court when he pointed to the absence of a report from explosives experts who examined the devices found. Despite the DPP's letter of 1 April, that deficiency was not remedied at the committal, and had not been remedied by the time of the hearing before the Chief Justice. Indeed, we were told by counsel for the DPP that no such report is yet to hand, although one is anticipated. Having in mind the provisions of s 19(6) of the Act, he was asked by the Court whether he was in a position to give any reliable information as to the contents of such a report. Counsel said he was not in a position to do this.
67 It is worth recalling what was put by counsel for the appellant at the bail hearing before Higgins J on 19 March 1999 as to these very matters:
As at 22 February the prosecuting authorities, as is apparent from the transcript, still had no meaningful report in relation to the supposed exploding devices.
They had been sent off to Victoria for analysis there by some experts attached to the Army. The defence have no idea whether they be exploding devices, fizzing devices, smoking devices or what sort of devices and, on cross-examination of Officer Crozier in the lower court, it became fairly apparent that the explosion, as it was originally described, at the Canberra Mail Centre may not have been an explosion of any great moment. Now, I raise that because, if that be the case, and if there is some real debate some three months down the track about whether these things be explosive and how explosive they might be, it goes to the question of the seriousness of the original offences.
I am not in a position to say more than that, but one has to be a little, perhaps, sceptical where three months after the event there is still not a report to indicate with any great certainty just how explosive these things were said to be.
68 The significance that I attach to these matters is not so much the difficulty which the prosecution may have at trial in proving the offences (although this is by no means irrelevant), it is rather because it becomes difficult to reject at this stage the case of the appellant as to the lack of danger in what was done. This, in turn, is critical to the question of safety to the public which formed the basis of the decision of the Full Court, and so the Chief Justice. For the purposes of a bail review, or a bail application, the DPP could have produced a reliable account of the evidence which a properly qualified witness would give, without the formality of a final statement in completely admissible form. The absence of any such material before his Honour was, in my opinion, quite remarkable, given that the actual packages were virtually all retrieved and that the point had obviously been raised before both Chief Magistrate Cahill and Higgins J. The failure to have such material served since, and the inability of counsel for the DPP to vouch for the substance of what might be expected does nothing to alleviate concern as to this point. Notwithstanding the deficiencies of presentation by a litigant in person before the Chief Justice, it was clear from the attack made by the appellant upon the statements of Mr Sweeney, together with his own case that evidence of the actual danger of the packages was a material matter for the purposes of bail.
Psychiatric evidence
69 The other principal element is the propensity of the appellant to repeat conduct in one way or another which would give rise to a significant risk of injury. To a large extent, this issue has turned upon the assessment by various Courts of the psychiatric evidence. The initial application for bail before the Chief Magistrate was supported by a report by Dr Hugh Veness, a consultant psychiatrist, of 8 January 1999, following a consultation at the Belconnen Remand Centre on 4 January 1999. Dr Veness gave oral evidence before the Chief Magistrate. I have not seen the report or a transcript of the evidence of Dr Veness before the Magistrate but it is clear enough, from the summaries of it that I have seen, that his opinion was that the behaviour in question, if it occurred, was the result of depression which could be kept under control by appropriate medication, and that there was no reason to believe that a person of Mr Dunstan's character would not take medication. He had had only the one consultation at that stage and had not discussed the alleged occurrences themselves with the appellant. The prosecution apparently tendered a report from a Dr Cullen, who initially made a tentative diagnosis of a delusional disorder with which Dr Veness did not agree. Higgins J, in his judgment, said that Dr Cullen had expressed the view, in additional material put before him, that his prior tentative diagnosis should not be taken as an expression of the view that such a condition existed, but was merely a possibility. It appears from the judgment of Higgins J that the Chief Magistrate was concerned about the possibility of a condition of the type referred to by Dr Cullen underlying the depression, and that this had been influential in his refusal of bail.
70 Higgins J pointed out that no evidence had been led to counter the evidence of Dr Veness. Dr Veness had been called (albeit by telephone) before his Honour. He adhered to his earlier opinions. In the course of re-examination, the witness had said that he had been in Court at the Magistrate's hearing, had heard the police officer give an outline of the Crown case, and that in formulating the opinions he had given in Court on that day he had assumed that the substance of the allegations was accurate. The last consultation he had had was on 13 January. In answer to a question in cross-examination, the witness agreed that if there were a significant rebuff in relation to the appellant's cause or his sense of grievance that sort of situation could rouse some angry feelings again. Before Higgins J the Crown relied upon the fact that the treating doctor, one Dr Tym, was not called. Counsel for the applicant put that the reference to the angry feelings recurring under a rebuff was an incomplete understanding of the evidence by the doctor who, on the whole, had said that provided the depression remained under control there was no reason to believe that there would be any repeat of the alleged behaviour. It was significant that on oath the doctor said that he was prepared to take on the responsibility of alerting authorities if the appellant did not attend an appointment, alerting authorities if he did not (as far as the doctor could ascertain) take his medication and alerting authorities if he formed the view that the appellant had become a danger to other people in any way.
71 His Honour accepted Dr Veness. The bail conditions imposed by Higgins J included:
11. I shall consult twice weekly with Dr Veness and take such medication and accept such treatment as directed by Dr Veness.
It is common ground that the appellant complied with this condition and with the other onerous conditions imposed by Higgins J during his period of bail.
72 What the Full Court said about this aspect of the matter is set out in paragraphs 24, 27 and 28 of the Judgment, and I do not reproduce them. Their Honours regarded Dr Veness' view as hampered by his inability to discuss the alleged offences with the defendant. They said further:
Dr Veness' view that the defendant is unlikely to be a danger to himself or to others is dependent upon the continued control of his depression which Dr Veness regarded as an essential ingredient in the psychopathology which, he assumed, led to the commission of the offences. That condition is chronic. We accept the opinion of Dr Veness that medication is likely to control the depression, but neither Dr Veness nor anybody else is able to give sufficient assurance the defendant will continue to take the medication, or that the defendant's sense of grievance will not be exacerbated by stressful events at any time in the future even if the defendant were to continue to be on bail in the community. Such stressful events may occur at any time unexpectedly, particularly as the commencement of the committal proceedings draws close. They may be difficult for others to detect.
73 During the hearing before the Chief Justice, after the appellant had been invited to go into the witness box to be cross-examined, he said:
I guess - just before moving on to the cross-examination, your Honour, Dr Veness did advise me that he is available to give evidence by phone if that was felt necessary.
His Honour responded:
Yes, all right. Thank you.
74 Nobody returned to that topic. The appellant, who was representing himself, says that he was exhausted and distracted by his cross-examination and that which followed. The matter was not raised either by his Honour or the DPP. The omission to pursue that matter was unfortunate. By that date Dr Veness had had a number of consultations with the appellant and, with the agreement of his former treating psychiatrist, had taken over care of the case. He thus had a far better opportunity of assessing the appellant than he had at the time of his earlier evidence. He had been able by then to discuss in detail with Mr Dunstan the events and actions that had led to the charges.
75 His Honour gave no separate consideration to the psychiatric evidence in his reasons beyond finding that the situation as perceived by the Full Court remained the same. I can understand the practical reasons which led to the shorthand approach to bail in this case. I also appreciate that there are limits to the amount of time and attention that a busy court can devote to bail applications. However, the Act does require compliance with s 8(2) and s 22 at the time of the application to the tribunal considering bail. In my view, there was no adequate compliance in this case.
Further evidence
76 In the proceedings before this Court, the appellant sought to rely upon a report of Dr Veness of 22 June 1999. This was not opposed by the DPP, although in submissions later Mr Robertson put that it had not been subject to any testing. He did not dispute that it could be reasonably inferred that the views Dr Veness expressed on 22 June would have been views that he would have expressed if called on 2 June before the Chief Justice. No application was made to cross-examine Dr Veness, or to tender any evidence in reply.
77 The report is cogent, indeed powerful, support for the grant of bail. The opening paragraph of the report is as follows:
I have already given evidence in previous proceedings in support of bail application proceedings regarding the abovenamed. I was not called to give evidence at the Supreme Court sitting where his bail, under strict conditions, was revoked. I provide this report in the interests of justice without partiality or inducement of any kind, including monetary payment for it.
Dr Veness expresses his opinion as follows:
I remain firmly of the view that Mr Dunstan does not pose an unacceptable risk in regards to violence towards himself, the public or the individuals to whom the offending packages were addressed, under the conditions of bail set by Justice Higgins.
He undertook and set out a risk assessment in accordance with what he said was established medical opinion, the result of which supported his opinion.
78 In my opinion, this evidence, if called before the Chief Justice, should have been entitled to anxious consideration and may well have been decisive, particularly if the Full Court decision were ignored. Even if it were not, the fact that the opinion was current, and the very much greater qualification of the witness to express his opinion compared to his position at the time of his previous evidence, would have required a complete reconsideration of the issue.
79 Given the cogency of the evidence, and the circumstances under which it was not called before the Chief Justice, I see nothing in the decision of the High Court in CDJ v VAJ (1998) 72 ALJR 1548 which would limit the use of this evidence in the proceedings before us. The arguments presented by the DPP both at the initial hearing and in supplementary submissions do little to detract from the effect of evidence in the absence of any evidence in reply.
Conclusions
80 In my opinion, the judgment below cannot stand for the following reasons:
1. His Honour mistook the nature of the application which he had before him.
2. The principal basis for the decision below was the decision of the Full Court which was not authorised by the statute. If the exercise of the jurisdiction by Higgins J had miscarried then the DPP should have sought to correct the miscarriage by seeking leave to appeal to this Court. I should say that I can see no basis for suggesting that his discretion did miscarry.
3. Even if his Honour had been entitled to give the weight that he did to the judgment of the Full Court, his Honour was wrong in not perceiving that there had been a significant change in the factual substratum which needed to be examined in relation to risk to the public since that judgment, and this meant that his discretion miscarried.
4. The decision below failed to give proper weight to s 8(2) and s 55 of the Act.
5. We now know that there is cogent psychiatric evidence which, in view of the lapse of time and other circumstances since the original psychiatric assessment, requires to be considered.
81 I have come to these conclusions conscious that most of these points were not taken distinctly, and in some cases not at all, by the appellant before his Honour or before us. To my mind, the nature of the points together with the circumstance that they affect the liberty of an unrepresented accused obliges this Court to take them into account.
Leave
82 I prefer to leave for another day the question whether an order of the Supreme Court granting, refusing or reviewing the grant or refusal of bail under of the Act is interlocutory within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
83 The submissions for the DPP relied upon the general principles considered in cases such as Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246. The only authority which directly considered the nature of a bail application for these purposes, Green v Lynch (1983) 70 FLR 206, held that the order was final not interlocutory. The failure to follow this decision by the South Australian Supreme Court in Gray v Sweatman (1987) 45 SASR 517, at least arguably, was not on this point. We have not heard any substantive argument from Mr Dunstan and there has been no opportunity for the Court to have more than a cursory look at the authorities.
84 Whilst the temporary nature of bail, to which I have already referred, the power to enlarge, vary or revoke in s 19(1), the power to bring an unlimited number of applications for bail on the part of the accused (subject to s 19(4), (5)), and the fact that bail is in a general sense ancillary to the criminal process, all point to the order being interlocutory. On the other hand, bail is now a creature of statute in the Australian Capital Territory and an application for bail is made pursuant to the relevant statute. It is not a step in the proceeding in quite the same way that the issue of a subpoena to a stranger might be in civil proceedings (cf Brouwer v Titan (1997) 73 FCR 241, 149 ALR 50). It might be described as a self-contained application. Although my present view is that an order granting or refusing bail is interlocutory, there is a contrary argument which requires more mature consideration on my part. We have not had the benefit of any substantial oral argument from Mr Dunstan on this point, and I have come to the conclusion that, if leave is required, it should be granted.
85 It is only an exceptional case which would warrant the grant of leave to appeal from a bail decision. The temporary nature of bail, the discretionary nature of the decision, and the close connection between bail and the criminal process in the Territory all point to the need for considerable restraint by this Court. In my opinion, the points which arise in the present case involve questions of principle and construction of the Act extending beyond this case and of considerable importance. The necessity to examine the decision of the Full Court in itself would warrant the grant of leave. Indeed, reference of the issue to a Full Court reinforces the point. I would grant leave to appeal and allow the appeal.
86 By way of completeness, it should be noted that the appellant did not address any substantive oral argument to us in support of his grounds of appeal relating to the rejection of evidence. I would not grant leave to appeal on those grounds, on the basis that they raise no point of importance, and are of little substance.
Relief
87 Having determined that the order below cannot stand, the question arises as to what should be done. There must be proper consideration of the appellant's case for bail, either by this Court or by returning the matter to the Supreme Court for that purpose.
88 The matter would normally be returned to the Supreme Court. There is much to be said against that course in the present case. The trial is fixed to commence on 19 July. Preparation will be difficult enough for both parties without the considerable distraction of a further bail hearing. It will be necessary to find a judge to give it urgent attention, as if the appellant is entitled to bail, each day that goes by prior to the hearing is very important to him, to his case and to his family. Each of the other judges has sat on bail in this case. They all, no doubt, have existing commitments. Once the trial commences, the trial judge will assume control over bail no matter what order is made now. If circumstances alter in the meantime, the DPP can apply for revocation of bail pursuant to s 19 of the Act. We have before us the material which was before the Judge at first instance, plus the additional evidence from Dr Veness.
89 On the other hand, I am most reluctant to involve this Court in a discretionary decision which is, par excellence, the province of the Supreme Court which has control of criminal proceedings within the Territory. The Act requires a balancing process. It cannot be said that the evidence here compels either a grant or a refusal of bail. The grant of leave, and the setting aside of the order below, are exceptional. To go further would be a large step.
90 In one sense, there is a choice between giving primacy to justice to the individual on the one hand, compared with preserving the appropriate relationship between courts in the overall administration of justice on the other. With considerable hesitation, I have come to the view that allowing the appeal has sufficiently vindicated the former and that to go further risks compromising the latter. I would return the matter to the Supreme Court.
91 As I will be a minority on this aspect of the matter, it is appropriate that I consider the question of bail for myself. I have done this, and I have considered the draft reasons of Whitlam and Madgwick JJ for granting bail. I favour the grant of bail on the conditions proposed by their Honours. I am not satisfied that having regard to the matters referred to in s 22 I would be justified in refusing bail, broadly for the reasons outlined by their Honours.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.