Hadba v R [2004] ACTSC 62

Supreme Court of the ACT|2004-07-27|Before: Higgins CJ, Gyles JJ, Crispin J

NOUHAD HADBA v THE QUEEN [2004] ACTSC 62 [2004] (27 July 2004)

CRIMINAL LAW - allegation of automatism due to intoxication - interpretation of ss 338 and 339 of the Crimes Act 1900 (ACT) - intoxication due to combination of alcohol and drugs - some taken in exceptional circumstances specified in s 338(2) - whether intoxication self-induced - general principles.

BAIL - requirement that person convicted and sentenced to term of imprisonment not be granted bail save in special or exceptional circumstances - whether risk of serving longer period in custody than that contemplated in sentence a special or exceptional circumstance.

Crimes Act 1900 (ACT), ss 61 (2), 338(2), 339

Commonwealth of Australia Constitution Act Chpt III

Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Director of Public Prosecutions v Majewski [1976] UKHL 2; [1977] AC 443

Edwards v Macrae (1991) 14 MVR 193

Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

Hoffman v Chief of Army [2004] FCAFC 148

2. the conviction and the sentence be affirmed with such sentence to be taken to have commenced 31 days prior to this date.

1. This is an appeal against a decision of Magistrate Fryar, convicting the appellant of an offence under s 61 (2) of the Crimes Act 1900 (ACT) by committing an indecent assault upon a person then between 10 and 16 years of age. The appellant also appeals against the perceived severity of the sentence of 15 months imprisonment which the Magistrate imposed subject to an order that the sentence be suspended after six months upon condition that the appellant enter into a recognisance to be of good behaviour for a period of three years and comply with certain conditions. Having regard to the age of the alleged victim and the nature of the offence charged, it would be inappropriate to identify her and she will be referred to as "the complainant".

2. The appeal was referred to the Full Court pursuant to s 13 of the Supreme Court Act 1933 (ACT) on 26 March 2004 together with related questions as to the effect of s 9 of the Bail Act 1992 (ACT) in cases to which s 216(1) of the Magistrates Court Act 1930 (ACT) applies and as to the power of the Supreme Court to relieve an unsuccessful appellant of the need to serve the whole of the sentence appealed from even if he or she has already spent a lengthy period in custody due to refusal of bail pending the appeal.

3. The indecent assault was allegedly committed at the appellant's home in the early hours of the morning of 7 November 2002. The complainant, who was then 14 years old, had earlier had an argument with her mother and decided to leave home. She walked to the Chisholm shops where she met two friends. The appellant, whom she had known for some months, worked at a takeaway shop and the complainant told him that she and her friends were looking for a place to stay overnight. He told them that they could stay at his house and arranged to meet them at Chisholm Sports Club at 8.30 that evening. He subsequently picked up the girls and drove them to his home after a brief diversion to the Erindale shops to buy a bottle of vodka and some cans of Coca Cola.

4. After arriving at his home, the appellant had a shower and then came out into the lounge room where the girls were listening to music. He smoked a joint of marijuana and then began to drink vodka and Coca Cola with the complainant. At some stage during the evening they all moved into the spare bedroom where the girls were to sleep and continued the conversation. The precise sequence of events that followed seems somewhat unclear but, according to the evidence of one of the girls, the appellant went to sleep at about midnight but subsequently fell out of bed and remained on the floor asleep. The girls left the house at about 1.30 am and returned at about 3.00 am. Upon their return they found the appellant in one of the beds in their bedroom. The complainant and one of her friends got into another bed while her other friend slept on the floor. The appellant later got into bed with them, though with his head at the end where the girls' feet were located. There was some conversation but the complainant, who was wearing a jumper and a G-string, went to sleep.

5. The complainant gave evidence that she had woken up to find that the appellant's head was between her legs, her G-string had been removed and she could feel that he was licking her in an area that her Worship found to have been near the complainant's genital area, "close to but external to her vagina". Her friends were woken by the sound of the complainant screaming at the appellant to get off her. They saw him stand from a kneeling position and noted that he had no pants on. He swore and left the room.

6. The appellant gave evidence that during the course of the evening he had taken an Aropax tablet at about 10.00 pm and two Normison tablets at 12.30 pm. He had also consumed at least two large glasses of vodka and Coca Cola and up to three glasses of wine and had smoked two joints of marijuana. He claimed to have remembered nothing between going to bed and waking at about 6.30am. It was submitted on his behalf that if he had acted in the manner alleged during the intervening period, his mental faculties must have been so impaired by the drugs and alcohol he had consumed that he had been acting as an automaton. Evidence was given by two psychiatrists, Dr Knox and Dr Parmegiani, concerning this possibility.

7. The learned Magistrate found that the complainant was a very credible witness and that her evidence had been corroborated in various respects by the evidence of other witnesses. Her Worship dismissed the suggestion of automatism, observing that the appellant's case on that issue was based upon intoxication and stating that, once intoxication is established, the onus is upon a defendant to prove that it was not "self-induced" as defined in s 338 (2) of the Crimes Act. Since the appellant's intoxication had not been caused by the proper administration of a prescription drug, the provisions of s 339 precluded consideration of the evidence as to his intoxication in determining whether he had carried out the alleged acts voluntarily and intentionally. Hence, it was unnecessary to consider the evidence of Drs Knox and Parmegiani. Disregarding that evidence, the appellant must have understood the nature of the relevant acts and intended to commit them. Accordingly, her Worship was satisfied that his guilt had been proven beyond reasonable doubt.

8. Mr Purnell SC, who appeared for the appellant, submitted that her Worship had fallen into error in doing so. He maintained that, in the light of the expert evidence as to the likely effect of the drugs and alcohol that the appellant had consumed earlier that night, the possibility that he may have carried out the relevant acts in a state of automatism had not been excluded and that neither s 338 nor s 339 had required her Worship to ignore that evidence.

9. At the time of the alleged offence s 338 was in the following terms:

intoxication means intoxication because of the influence of alcohol, a drug or any other substance.

(2) For the purposes of this part, intoxication is self-induced unless it came about--

(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or

(c) from the administration of a drug for which a prescription is required and that was administered in accordance with the directions of the medical practitioner or dentist who prescribed the drug; or

(d) from the administration of a drug for which no prescription is required and that was administered--

(i) for a purpose recommended by the manufacturer; and

(ii) in accordance with the dosage level recommended in the manufacturer's instructions.

10. Section 339 provided that:

Evidence of self-induced intoxication cannot be considered in determining whether an act or omission that is an element of an offence was intended or voluntary.

11. The latter section was clearly intended to require judges and magistrates to depart from their usual obligation to consider all of the relevant evidence in determining whether each element of an offence had been proven beyond reasonable doubt. It was apparently enacted with a view to preventing the so-called "drunks' defence" which involved defendants claiming that their violent conduct could not have been voluntary or intentional because they were too drunk to be in control of their mental faculties. Such claims were usually specious and dismissed, if only because the nature and extent of the conduct was not consistent with the alleged absence of voluntariness and intention. However, public concern was generated by a small number of well-publicised cases in which the defendant succeeded in escaping conviction on this basis and legislative intervention was considered desirable. Penal provisions should generally be strictly construed lest injustice be caused by casting the net more widely than the legislature intended and there does appear to be a real risk that the operation of ss 338 and 339 could cause injustice in some circumstances. Nonetheless, the legislature clearly intended to require courts to ignore evidence of self-induced intoxication when determining issues of voluntariness or intention in relation to acts or omissions alleged to constitute elements of offences and to deem any intoxication to have been self-induced unless it "came about" by reason of one or more of the factors specified in s 338(2).

12. This is an intriguing approach to the criminal law and even those most anxious to ensure that people did not escape criminal responsibility for their conduct might reasonably be concerned at the legislative method chosen to achieve that end. The ACT Legislative Assembly clearly has power to redefine the elements of any Territory offences, to define such concepts as intention and voluntariness and, subject to the provisions of the Evidence Act 1995 (Cth), to restrict the admissibility of evidence. However, s 339 does not purport to do any of those things. Rather, it purports to forbid courts from considering credible evidence that might otherwise have cast doubt on whether an accused person is guilty of the offence charged.

13. There may, perhaps, be some question as to the validity of such an approach or at least as to the extent to which it could be pursued. In particular, it seems doubtful that a Territory enactment could validly command a court to ignore evidence of alibi, evidence given by certain classes of people or all evidence adduced on behalf of the accused.

14. Despite the absence of any entrenched doctrine of the separation of powers in New South Wales, a law of that State has been held to be invalid on the ground that the exercise of the jurisdiction thereby conferred would have been incompatible with the maintenance of public confidence in the integrity, impartiality and independence of the Supreme Court as a court in which federal jurisdiction had also been invested under Chapter III of the Commonwealth of Australia Constitution Act (the Constitution): Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51. Mc Hugh J explained at 118 that "it is a necessary implication of the Constitution's plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts".

15. The legislative provisions with which the present case is concerned are quite different from those with which the case of Kable was concerned, but it may be arguable that a law purporting to require a Territory court to ignore potentially exculpatory evidence could similarly undermine public confidence in the impartial administration of the court's judicial functions. It might also be argued that such a provision is inconsistent with provisions of the Evidence Act and hence ineffective by reason of s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). However, no issue was raised on this appeal as to the validity of s 339 and it is unnecessary to consider any questions of this nature.

16. Section 338 contains no provision expressly dealing with intoxication that has come about by reason of a combination of alcohol and drugs, only some of which may have been taken in circumstances falling within the exceptions to the deeming provision in s 338(2).

17. Mr Purnell submitted that such intoxication could not be taken to have been self-induced unless, perhaps, the evidence established that the quantities of alcohol and/or drugs that the accused had consumed in circumstances not falling within the statutory exceptions would of themselves have resulted in his intoxication. Conversely, Mr Refshauge SC, who appeared for the respondent, submitted that the intoxication must be regarded as self-induced if any alcohol or potentially intoxicating drug consumed, other than in circumstances falling within the statutory exceptions, had contributed to the ultimate state of intoxication.

18. These competing submissions seem to have been predicated upon different approaches to what has been referred to in other contexts as the "but for" test of causation and either of the suggested approaches could give rise to undesirable consequences. Mr Purnell's argument might lead to a situation in which a person who took a prescribed drug such as Normison and thereafter proceeded to irresponsibly consume a large quantity of alcohol would be entitled to claim that the resultant intoxication had not been self-induced because it had been partially attributable to the prescribed medication. On the other hand, the interpretation for which Mr Refshauge contended would involve the consequence that a person who had consumed a single glass of wine with a meal before taking prescribed medication which unexpectedly proved to have a dramatically intoxicating effect would be denied the opportunity to rely upon the exception contained in s 338(2)(c) merely because the wine had made a minor contribution to the overall level of intoxication. Similarly, a person who had consumed a glass of beer which had been "spiked" with vodka without his knowledge might be denied the opportunity to rely upon the exception contained in s 338(2)(a).

19. The provisions of ss 338 and 339 are not concerned with the voluntary consumption of alcohol or drugs per se, but rather with self-induced intoxication and it is the causation of the relevant state of intoxication that is the decisive issue. At least in the civil law it is now clear that issues of causation must be determined not by reference to the "but for" test but by the application of the "common sense" test described by the High Court of Australia in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. In our opinion any question of whether intoxication came about as a consequence of one or more of the factors specified in s 338(2) should be approached in a similar manner. The resolution of any such issue will ultimately involve questions of fact and it would be impracticable to attempt to define how the relevant provisions should be applied in every conceivable scenario. However, a number of observations may be made.

20. First, the issue may not be resolved merely by enquiring as to what quantities of alcohol or drugs seemed likely to have had the most potent effect. The potential for one drug to potentiate the effects of others may make this an unreliable guide. In any event, a person who has consumed even a considerable amount of alcohol but stopped drinking before reaching any real state of intoxication should not, by reason of those facts alone, be denied the opportunity to demonstrate that his later intoxication had been effectively caused by, for example, the unexpected effect of medication which was later prescribed due to some unexpected injury or sudden illness. Such a person may have made themselves more vulnerable to intoxication but that is not the test. The decisive question is what caused the intoxication.

21. Second, the issue may not be resolved merely by enquiring as to what quantities of alcohol or drugs were taken last or which provided what might be described as the crest of the wave of the defendant's intoxication. The intoxication of a person who drank alcohol intending to later take prescribed drugs which he or she knew were likely to have an intoxicating effect if taken whilst alcohol was present in his or her bloodstream may well be taken to have been self-induced. Whilst much may depend upon the evidence in the case in question, such circumstances could justify a conclusion that, even if the prescribed drugs were not taken in contravention of any direction given by the prescribing medical practitioner or dentist, the ultimate state of intoxication was effectively caused by the defendant's decision to drink the alcohol knowing that he or she would later take the other drugs.

22. Third, whilst the Crown retains the burden of proving voluntariness and intention, an evidentiary onus is cast upon a defendant to raise a triable issue as to whether his or her intoxication came about as a consequence of one or more of the exceptional factors specified in s 338(2). This burden is not discharged merely by adducing evidence that some components in the relevant cocktail of drugs and alcohol had been prescribed or even that the prescribed drugs were taken in accordance with the directions of the prescribing medical practitioner or dentist. The defendant must also adduce evidence of facts and circumstances sufficient to raise a real issue as to whether those drugs may have been a real and effective cause of his or her intoxication.

23. In the present case, the evidence adduced by the appellant was, in our opinion, insufficient to raise such a triable issue. At the trial he gave no evidence as to the directions given by the prescribing medical practitioner. Further evidence was admitted by leave on the appeal and that evidence revealed that he had been warned not to drink alcohol whilst taking the medication. Even in those circumstances, it may have been open to him to have raised an issue as to whether the subsequent intoxication had been attributable to a mistake based, perhaps, upon some misapprehension as to the likely effect of disregarding this warning. But he did not give any evidence of any such mistake and therefore it is unnecessary to consider any such possibility. Consequently, the Magistrate's view that the intoxication of the appellant had been self-induced was in our opinion correct.

24. Furthermore, if we had come to a different conclusion as to the effect of ss 338 and 339 we would, nonetheless, have concluded that the intoxication did not raise a reasonable doubt as to whether the appellant's actions were voluntary and intentional. Mr Purnell's argument that the appellant's intoxication may have caused him to commit the relevant acts involuntarily was substantially reliant upon the expert evidence of Dr Knox. His evidence was based upon assumptions as to the quantities of drugs and alcohol that the appellant had consumed and his inability to remember anything between going to bed and awakening at about 6.30 am. In re-examination Dr Knox gave what Mr Purnell submitted was potentially decisive evidence.

Doctor, accepting the assumptions that I put to you in chief plus what the learned magistrate put to you in your cross-examination, that is the taking off of the G strings and the underpants plus the doing of a sexual act between 3 am and 5.30 am, in your opinion on the balance of probabilities did Mr Hadba's mind control his will in carrying out those actions?

I think there's considerable possibility that his will was not controlling his behaviour.

25. We are prepared to assume that the circumstances described in the question would not, of themselves, have excluded the possibility that the appellant had acted involuntarily. However, the question put to Dr Knox did not include an account of many other facets of the appellant's conduct, such as inviting the girls to stay at his house overnight, obtaining and drinking vodka and wine despite being warned not to consume alcohol with the prescribed drugs, adding marijuana to the cocktail, giving vodka to the complainant, removing his trousers and getting in to the bed with the girls at a time when they were also partially undressed. Nor did it include any reference to the appellant's response to the complainant's apparently outraged scream by swearing and leaving the room. There was also some evidence to the effect that he had demanded that the light be turned off, presumably to avoid the other girls seeing that he was not wearing any pants. The Magistrate made no finding as to whether she accepted this evidence and for present purposes it must be disregarded. Nonetheless the other acts that we have mentioned, together with his conduct in apparently removing the complainant's G-string as well as his own underpants and putting his head between her legs, provide compelling grounds for inferring that he intentionally committed the indecent assault charged. The theoretical possibility that the more proximate acts could have been committed whilst he was in a state of automatism does not, in our opinion, raise any reasonable doubt as to his guilt.

26. Mr Purnell advanced a further argument based upon the apparent acceptance by Dr Parmegiani that if, after taking the amount of Normison described, the appellant had gone to sleep in the same bed as the complainant with his head at the same end as her feet, it was possible that his subsequent actions could have been attributable to an "erotic dream reflex".

27. Whilst it seemed difficult to accept that such an automatic reflex could have extended to the appellant removing the complainant's G-string as well as his own underpants, Mr Purnell pointed out that there was no direct evidence as to when or how the G-string was removed. However, the complainant, whom the Magistrate found an impressive witness, gave evidence that she had gone to sleep wearing it but was no longer wearing it when she awoke. The accused had had his head between her legs and his underpants had also been removed. In these circumstances, there were strong grounds for inferring that the accused had removed the complainant's G-string prior to her awakening. Furthermore, the scenario put to Dr Parmegiani involved an even more limited account of the potentially relevant events than that put to Dr Knox. In our opinion, his concession as to the theoretical possibility that the more proximate acts could have been attributed to an "erotic dream reflex" whilst he was in a state of automatism again fails to raise any reasonable doubt as to his guilt.

28. Mr Purnell also challenged the Magistrate's finding that the evidence of the complainant had been corroborated in various respects by the evidence of other witnesses. Despite his careful analysis of the evidence we are satisfied that it was open to her Worship to find that there had been corroboration of various aspects of the complainant's evidence.

29. We are also unable to accept that the approach taken by the Magistrate to sentencing was vitiated by appealable error. Her Worship expressly rejected the contention that the appellant had committed the relevant acts in a state of automatism, even one attributable to self-induced intoxication, and in our opinion she was entitled to do so. It is true that the offence was not aggravated by violence and that the offender did not persevere when the complainant woke and objected, though he may have had little choice given the presence of the other girls. Nonetheless, the offence was a serious one, involving an indecent assault upon a 14 year old girl in circumstances involving a gross breach of trust.

31. The other questions referred to the Full Court arise substantially from the provisions of s 216(1) of the Magistrates Court Act which is in the following terms:

If an appeal to which this division applies has been duly instituted, the enforcement or execution of the conviction, order, sentence, or penalty appealed from shall be stayed until the appeal is concluded, or is abandoned or discontinued, and, if the appellant is in custody, he or she may, if not detained for any other cause, be granted bail in accordance with the provisions of the Bail Act 1992.

32. This section was obviously intended for the benefit of appellants but, as counsel for the respondent pointed out during an earlier bail application, s 9 of the Bail Act provides that a court must not grant bail to a person who has been convicted of an offence and sentenced to a term of imprisonment unless satisfied that special or exceptional circumstances exist justifying the grant of bail. This means that such an appellant is likely to remain in custody and, because the sentence has been stayed from the filing of the noticeof appeal until the appeal has been concluded, the time spent in custody pending the conclusion of the appeal will not count as part of his or her sentence. Consequently, a person whose appeal against a sentence of six months imprisonment is dismissed will have to serve the whole of the unexpired term of the sentence even if he or she has already spent six months or more in custody before the judgment dismissing the appeal is delivered.

33. A person effectively required to remain in custody for much longer than the period required by the sentence would undoubtedly be left with a justified sense of grievance. Furthermore, it is obviously undesirable to permit a situation to continue in which people may be deterred from pursuing apparently viable grounds of appeal due to fear of extending their period of imprisonment should their contentions ultimately be rejected.

34. In other jurisdictions there are express statutory provisions that enable an appellate court to relieve an appellant of such a consequence. Even in this jurisdiction, the problem does not arise in relation to appeals from a single judge of the Supreme Court to the Court of Appeal because there is no provision comparable to s 216(1) in the Supreme Court Act.

35. In the present case the risk of potential injustice that might have been caused by the unintended consequences of s 216 was taken into account as a special, if not exceptional, circumstance for the purposes of s 9 of the Bail Act which, considered in the context of other relevant facts and circumstances, was held to justify the grant of bail pending the conclusion of the appeal. However, such a course would not always be appropriate and it is generally undesirable for a judge or magistrate hearing an application for bail to feel obliged to take into account an unwarranted and apparently unintended limitation on the Supreme Court's power to avoid unjust consequences of the appellate process.

36. In our opinion the provisions of s 218 of the Magistrates Court Act 1930 confer ample jurisdiction upon the Supreme Court to vary the sentence appealed from in order to ensure that any periods spent in custody pending the appeal are properly taken into account. Such an appeal involves a rehearing of the matter, though not a rehearing de novo (see s 214 of the Magistrates Court Act). Generally speaking, even on a rehearing, a decision will not be reversed, in whole or part, in the absence of appealable error (Warramunda Village Inc v Pryde (2002) 116 FCR 58 at [35]). However, in our opinion, s 218 does provide power for the Supreme Court to vary a sentence appealed from to take into account any periods spent in custody pending the appeal in order to give effect to the sentencing magistrate's intention and to prevent any injustice that might otherwise arise upon the dismissal of such an appeal.

37. In the present case we would affirm the conviction and sentence but order that the starting date be backdated by 31 days to reflect the fact that he has already been detained in custody for the whole of the period between 24 February 2004 when initially sentenced and 26 March 2004 when released on bail.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Chief Justice Higgins and Justice Crispin.

38. I agree with the orders proposed by Higgins CJ and Crispin J. I have had the advantage of reading in draft the judgment of Higgins CJ and Crispin J and agree with the substance of it.

39. The point of importance in the case related to the ingenious argument of counsel for the appellant relating to automatism and the effect of Part 14 of the Crimes Act 1900 (ACT) dealing with intoxication. The alleged automatism would have been a result of intoxication owing to the combined effect of alcohol, marihuana and the prescription drugs. The argument that Normison alone would have been responsible has no proper foundation in the evidence. The same may be said of the suggestion of a reflex action caused by an erotic dream.

40. The learned Magistrate was correct in holding that such intoxication was self-induced within the meaning of s 338 and s 339 of the Crimes Act and so not to be considered. No finding of automatism could be made as it would depend upon the effect of the self-induced intoxication.

41. Even if s 338(2)(c) is construed so as to apply in circumstances where the prescription drug is taken on top of a substantial quantity of alcohol and marihuana, the learned Magistrate was correct in holding that it had not been established that intoxication had resulted from a prescription drug which had been taken in accordance with the necessary instructions. The instructions were simply not proved. The medical practitioner in question was not called. The appellant was not asked what instructions were received from the medical practitioner. This was no technicality having in mind the express terms of the subsection. It cannot be assumed that dosage was the only instruction received. The evidentiary onus of proving the necessary facts obviously lay upon the appellant. As it happens, Exhibit 1 explains the omission.

42. That conclusion makes it unnecessary to decide how Part 14 of the Crimes Act may have applied if the prescription drugs had been taken in accordance with instructions. Automatism and intoxication have been amongst the most controversial issues in criminal law and the related medical literature. There is a very considerable background to Part 14. In the United Kingdom the ramifications of the decision of the House of Lords in Director of Public Prosecutions v Majewski [1976] UKHL 2; [1977] AC 443 have caused much debate. In Australia the decision of the High Court in R v O'Connor [1980] HCA 17; (1979-1980) 146 CLR 64 declining to follow Majewski has also occasioned controversy in the authorities, in various Law Reform Commissions and in various legislatures. A number of aspects were recently referred to by Wood CJ at CL in R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 at 87-104. I would prefer to only deal with those issues in respect of Part 14 which are necessary to determine for the purposes of this case. I therefore do not express any opinion concerning Part 14 going beyond that which directly calls for decision in this case.

43. Even if the foregoing analysis were wrong, I would not allow the appeal on the basis of automatism. The hypothesis of automatism is too far-fetched to raise any reasonable doubt. No properly instructed magistrate could acquit on the basis of it. On no reading of the medical evidence do the facts in this case permit a finding that the stringent requirements of automatism (as they are to be understood) were present (see, eg, Edwards v Macrae (1991) 14 MVR 193 per Gleeson CJ at 197, 199-200).

44. I should add that I have reservations concerning the assumption underlying some of the argument, namely, that s 216 of the Magistrates Act should be read down so that bail is to be refused notwithstanding the stay of execution of the sentence of imprisonment unless the Court is satisfied that special or exceptional circumstances exist justifying the grant of bail. The judgment of Higgins CJ and Crispin J adequately demonstrates that such a situation is anomalous and is unlikely to have been intended by the Parliament. The evident intention of s 216 was to grant an automatic stay of execution whenever an appeal has been instituted, regardless of the merits or otherwise of the appeal or any other circumstance. In that respect it is as if the conviction has not occurred pending disposition of the appeal. That does not apply, for example, in the usual appeal from conviction in the Supreme Court.

45. In my opinion, it is arguable that the words `in accordance with the provisions of the Bail Act 1992' in s 216(1) mean that the Bail Act 1992 is the mechanism by which bail is to be granted, but that the provisions of s 9 of that Act do not apply in relation to a sentence execution of which has been stayed by the provisions of s 216 of the Magistrates Court Act. On this argument, the potential inconsistency which would otherwise exist between the statutory provisions is best resolved by application of the Latin phrase `generalia specialibus non derogant' so that the special provisions of s 216 of the Magistrates Court Act would prevail (Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Hoffman v Chief of Army [2004] FCAFC 148 per Black CJ, Wilcox and Gyles JJ at [10]). There is no need to express any final view about that issue in this case.

I certify that the preceding paragraphs numbered thirty-eight (38) to forty-five (45) are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Counsel for the appellant: Mr FJ Purnell SC with Mr Hausfeld & Mr Sharwood

Solicitor for the appellant: Baker Deane & Nutt Lawyers

Counsel for the respondent: Mr R Refshauge SC with Mr Morters

Solicitor for the respondent: ACT Director of Public Prosecutions

Capital Territory (Self-Government) Act 1988

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