[1983] HCA 13
Collins v The Queen (1975) 133 CLR 120
[1986] HCA 84
Karout v R [2019] NSWCCA 253
R v AB (No. 2) (2018) 97 NSWLR 1031
[2017] VSCA 57
Sinanovic v The Queen (No. 1) (2001) 179 ALR 520
Source
Original judgment source is linked above.
Catchwords
[1983] HCA 13
Collins v The Queen (1975) 133 CLR 120[1986] HCA 84
Karout v R [2019] NSWCCA 253
R v AB (No. 2) (2018) 97 NSWLR 1031[2017] VSCA 57
Sinanovic v The Queen (No. 1) (2001) 179 ALR 520
Judgment (8 paragraphs)
[1]
Judgment
BELL P: The reasons given by Johnson J for refusing the Applicant's bail application accord with my own. The application, insofar as it was based on s 67(1)(d) of the Bail Act 2013 (NSW), was flawed for the reasons given by his Honour.
The separate application for a stay was only faintly pressed by Mr James QC in circumstances where special leave to appeal in Fangaloka v The Queen [2020] HCASL12 had been rejected in the emphatic language of Gordon and Edelman JJ, namely that it "would have no prospects of success". Mr James accepted that the outcome in that case had at least an unpropitious bearing on the prospects of special leave to appeal being granted in the present case.
The failure to seek expedition of the special leave application in the present case would also have militated against any grant of a stay and any related grant of bail pursuant to s 67(1)(c) of the Bail Act assuming that there was some proper jurisdictional basis for even considering the grant of such relief. The suggestion put in argument that, as the special leave application was to be determined by the High Court on the papers, there was no need or occasion to seek expedition, was not attractive. Where, as here, a party seeks some form of exceptional interim relief pending a future hearing or determination, it would usually be essential that all steps are taken to secure expedition of that hearing or, where there is to be no hearing, determination of an application on the papers.
WALTON J: I agree with the reasons given by Johnson J for the making of orders by the Court at the conclusion of the hearing on 6 February 2020.
JOHNSON J: The Applicant, Hassan Karout, applies for bail in circumstances where he has sought special leave to appeal to the High Court of Australia from a decision of this Court on 18 October 2019 dismissing his appeal against sentence: Karout v R [2019] NSWCCA 253.
On 19 November 2019, the Applicant filed a special leave application which will be dealt with on the papers unless the High Court determines to list the application for oral hearing: Part 41.08.1 High Court Rules 2004. The Applicant has not sought expedition of his application for special leave.
On 5 December 2019, the Applicant filed an application for bail in this Court.
In the event that the Court determined that it had no jurisdiction to entertain an application for bail under s.67(1)(d) Bail Act 2013, Mr James QC for the Applicant, made an oral application for a stay of the Applicant's sentence pending his application to the High Court and a grant of bail under s.67(1)(c) Bail Act 2013.
Following a hearing of the application on 6 February 2020, the Court dismissed the bail application and declined the stay application with reasons to follow. These are my reasons for joining in those orders.
[2]
The Decision Subject to the Special Leave Application
The Applicant pleaded guilty in the District Court to an offence of knowingly taking part in the supply of a prohibited drug, namely 140 grams of cocaine, contrary to s.25(1) Drug Misuse and Trafficking Act 1985. On 6 November 2018, the Applicant was sentenced by his Honour Judge Robison to imprisonment of a period of two years with a non-parole period of one year.
The Applicant sought leave to appeal to the Court of Criminal Appeal against his sentence. On 16 November 2018, his Honour Judge Robison granted the Applicant bail pending the determination of his appeal.
On 18 October 2019, the Court (Hoeben CJ at CL and Fullerton J, Brereton JA dissenting) granted the Applicant leave to appeal against sentence, but dismissed the appeal. The Court revoked the Applicant's bail granted on 16 November 2018. Pursuant to s.18(2) Criminal Appeal Act 1912, the Applicant's sentence of imprisonment resumed and the Court noted that the Applicant's non-parole period will expire on 5 October 2020 with the balance of the term of imprisonment to expire on 5 October 2021.
[3]
The Applicant's Special Leave Application
The Applicant's special leave application seeks to raise issues concerning the proper construction of s.66 Crimes (Sentencing Procedure) Act 1999 with respect to the making of intensive correction orders, and the approach adopted by the majority of the Court of Criminal Appeal in Karout v R where the earlier decision of the Court in R v Fangaloka [2019] NSWCCA 173 was followed.
It is noteworthy that, on 5 February 2020, the High Court refused to grant special leave to appeal from that decision: Fangaloka v The Queen [2020] HCASL 12. In refusing special leave on the papers, Gordon and Edelman JJ said that the application "does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal" and that an appeal to the High Court "would have no prospects of success".
[4]
The Present Application
Senior counsel for the Applicant relies principally upon a combination of s.67(1)(d) Bail Act 2013 and s.25A(6) Criminal Appeal Act 1912 as furnishing a pathway for this Court to grant the Applicant bail although his application for special leave has yet to be determined.
Section 67 Bail Act 2013 provides:
"67 Powers specific to Court of Criminal Appeal
(1) The Court of Criminal Appeal may hear a bail application for an offence if:
(a) the Court has ordered a new trial and the new trial has not commenced, or
(b) the Court has made an order under section 8A (1) of the Criminal Appeal Act 1912 and the person is before the Court, or
(c) the Court has directed a stay of execution of a conviction and the stay is in force, or
(d) an appeal from the Court is pending in the High Court, or
(e) a bail decision has been made by the Land and Environment Court or the Supreme Court.
(2) Despite subsection (1) (e), a Judge of the Court of Criminal Appeal sitting alone cannot hear a bail application if a bail decision has been made by the Supreme Court (however constituted) unless the rules made under the Supreme Court Act 1970 permit the Judge to do so."
Section 25A Criminal Appeal Act 1912 provides:
"25A Certain time to count as part of appellant's sentence
(1) Any time during which a person is at liberty on bail ending the determination of the person's appeal to the High Court from an order or determination of the Court of Criminal Appeal does not count as part of any term of imprisonment or penal servitude under the person's sentence.
(2) (Repealed)
(3) The time during which a person is held in custody counts as part of any term of imprisonment or penal servitude under the person's sentence.
(4) (Repealed)
(5) A reference in this section to bail is a reference to bail whether or not granted under the Bail Act 2013.
(6) In this section, appeal includes an application for special leave to appeal."
In the event that the Court rejected the Applicant's primary argument based on these provisions, the Applicant submitted that the Court should grant a stay and allow bail under s.67(1)(c) Bail Act 2013 applying the principles referred to in Richards (A Pseudonym) v R (2017) 270 A Crim R 311; [2017] VSCA 57 at [16]-[20] (and the cases referred to therein).
The Crown submitted that unless and until special leave to appeal is granted, there is no appeal from this Court that is "pending in the High Court" for the purpose of s.67(1)(d) Bail Act 2013. Further, the Crown submitted that the expanded definition of "appeal" in s.25A(6) Criminal Appeal Act 1912 is limited in its application to that section and does not assist in the construction of s.67(1)(d) Bail Act 2013.
The Crown submitted that s.67(1)(d) Bail Act 2013 does not confer jurisdiction on this Court to grant bail to the Applicant.
Even if the Court had jurisdiction to grant bail, the Crown submitted that the Applicant had not satisfied the special or exceptional circumstances test in s.22 Bail Act 2013 and that there was, in any event, an unacceptable risk so that a grant of bail should be refused if that point was reached on the present application.
With respect to the alternative argument by the Applicant that this Court should grant a stay and allow bail by way of s.67(1)(c) Bail Act 2013, the Crown submitted that no proper basis had been demonstrated for the grant of a stay.
[5]
Decision
The Primary Application for Bail
Section 67(1)(d) Bail Act 2013 has no application in this case as there is not "an appeal" from the Court of Criminal Appeal "pending in the High Court". All that the Applicant has on foot is an application for special leave to appeal.
Section 35(2) Judiciary Act 1903 (Cth) provides that "an appeal shall not be brought from a judgment, whether final or interlocutory … unless the High Court gives special leave to appeal". The distinction between an application for special leave to appeal to the High Court and an appeal (once special leave is granted) is a critical one. Until there is a grant of special leave, there are no proceedings inter partes before the High Court: Collins v The Queen (1975) 133 CLR 120 at 122; [1975] HCA 60; HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [25].
There is no definition of "appeal" in the Bail Act 2013.
Mr James QC cited no authority for the proposition that the Court could consider the terms of a different statue to construe the Bail Act 2013. I do not consider that s.25A Criminal Appeal Act 1912 operates to expand the meaning of the word "appeal" in s.67(1)(d) Bail Act 2013 to include an application for special leave to appeal to the High Court. Section 25A(6) states expressly that "appeal" in that section includes an application for special leave to appeal. The expanded meaning of "appeal" is confined to s.25A only. The purpose of s.25A is to make clear that any sentence does not run when a person is subject to a grant of bail pending the determination of an appeal.
If the legislature intended that s.67(1)(d) Bail Act 2013 extend to a situation where a person has made application for special leave to appeal to the High Court, but had not been granted special leave to appeal, then words to that effect would appear in the Bail Act 2013. Clearly, the legislature had an opportunity to adopt such an approach (if it saw fit) when enacting the Bail Act 2013, but it did not do so. Although s.25A Criminal Appeal Act 1912 had been in existence since 1998 (and s.25A(6) since 2004), the legislature did not include an equivalent provision in the Bail Act 2013.
I am not persuaded that this Court has jurisdiction to grant the Applicant bail under s.67(1)(d) Bail Act 2013.
I do not think that the Applicant's submission with respect to appeal bail is assisted by anything said in R v Sinanovic [2001] NSWCCA 164 or Sinanovic v The Queen (No. 1) (2001) 179 ALR 520; [2001] HCA 35.
Even if the Court had jurisdiction to grant bail under s.67(1)(d) Bail Act 2013, the Applicant faces considerable difficulty in satisfying the special or exceptional circumstances test contained in s.22 of that Act. The Applicant has not demonstrated that he has a strong case for special leave to appeal. Further, the Court has been informed that the Crown and the Applicant have filed their submissions with respect to the special leave application. Despite this, the Applicant has not sought expedition of the determination of his special leave application.
The Alternative Application for a Stay
With respect to the application for a stay of sentence and to invoke s.67(1)(c) Bail Act 2013, it is noteworthy that the provision refers to "a stay of execution of a conviction" only and not "sentence". The Applicant pleaded guilty in the District Court and his appeal to the Court of Criminal Appeal was confined to sentence as is his application for special leave to appeal to the High Court. The word "conviction" is defined in s.4 Bail Act 2013 as including a finding of guilt. Section 5(1)(d) Bail Act 2013 states that the phrase "proceedings for an offence" in that Act means criminal proceedings against a person for an offence and includes "proceedings on an appeal against conviction or sentence". The parties did not make submissions on this aspect and it is neither necessary nor appropriate to express a concluded view on it in this case. However, where the Bail Act 2013 itself distinguishes between appeals against conviction and sentence, it is an open question as to whether the Applicant can rely upon s.67(1)(c) Bail Act 2013.
As the Respondent acknowledged, this Court has accepted that it has jurisdiction to grant a stay of its judgment pending determination of a special leave application if the circumstances justify that course: R v AB (No. 2) (2018) 97 NSWLR 1031; [2018] NSWCCA 148 at [27]. However, the jurisdiction to stay a judgment of an intermediate appellate court to preserve the subject matter of litigation pending a special leave application is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted: Jennings Construction Limited v Burgundy Royale Investment Pty Limited (No. 1) (1986) 161 CLR 681 at 684; [1986] HCA 84. It is for the Applicant to demonstrate that there is a substantial prospect that special leave to appeal will be granted: R v AB (No. 2) at [27]. Further, it would be necessary for the Applicant to seek expedition of the special leave application.
The Applicant has fallen far short of making out a case for a stay pending his special leave application. He has not established that there is a substantial prospect that special leave to appeal will be granted. The Applicant is not assisted in this respect by the High Court's refusal of special leave to appeal in Fangaloka v The Queen. Further, the Applicant has not sought expedition of his special leave application.
As the Applicant has failed to establish that a stay should be granted, clearly s.67(1)(c) has not been engaged to facilitate a grant of bail.
[6]
Conclusion
If the Applicant is granted special leave to appeal, it would be open to him to apply for bail in this Court under s.67(1)(d) Bail Act 2013: HT v Director of Public Prosecutions (NSW) at [25]. There would be a change in circumstances which would permit the Court to entertain a further release application: s.74(3)(c) Bail Act 2013.
Further, there is no impediment to the Applicant applying for bail in the High Court even before a grant of special leave, although a more stringent test is applied at that stage: Chamberlain v The Queen (No. 1) (1983) 153 CLR 514 at 519; [1983] HCA 13 (Brennan J); Sinanovic v R (No. 1) at [11] (Kirby J). However, the Applicant has chosen to make what is a premature application to this Court.
The Applicant has failed to demonstrate a basis upon which the Court should grant bail or, alternatively, a stay pending determination of his special leave application.
[7]
Conclusion
It was for these reasons that I joined in the orders made at the conclusion of the hearing on 6 February 2020.
[8]
Amendments
14 February 2020 - Formatting error in judgment.
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Decision last updated: 14 February 2020