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[1999] HCA 4
procedural. Each appellant was admitted to bail pending determination of his appeal, subject to the specified individual residence conditions, undertakings, surrender requirement, and no-contact condition.
Callinan J released Marotta, King and Bull on bail while they waited for their High Court appeals. The decision did not decide whether their convictions were correct. Bail was granted because several circumstances operated together: the appeals had obtained special leave and raised an arguable point, the appeals could take months, significant prison time might be served before a decision, and no risk of absconding or offending was identified. The judge stressed that special leave alone would not justify bail. Each appellant had to comply with residence, financial, attendance and non-contact conditions.
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Callinan J dealt with three applications for bail pending appeals to the High Court: Marotta, King and Bull. The reasons were a revised account of an ex tempore judgment given on 8 December 1998, and were published on 9 February 1999. The proceeding concerned interim release while the appeals were pending. It did not determine whether the convictions should be upheld or set aside.
No linked legislation citations have been extracted yet.
The applicants had been convicted in the District Court of Western Australia on 2 July 1997 of sexual penetration without consent and indecent assault. They had also been acquitted of other charges arising from an incident alleged to have occurred on 18 November 1995 ([1]). Bull was sentenced to eight years’ imprisonment, Marotta to seven years, and King to six years ([2]).
A majority of the Court of Criminal Appeal dismissed their conviction appeals on 19 January 1998. Ipp J dissented ([5]). The applicants applied for special leave on 13 February 1998 ([6]). After earlier bail applications were adjourned and the special leave applications expedited, special leave was granted in all three cases on 20 November 1998 ([7]-[8]).
The ground for which special leave was granted concerned evidence of sexually explicit telephone conversations between Bull and the complainant, and related conversations. The proposed appeal challenged the Court of Criminal Appeal’s treatment of that material as evidence of the complainant’s “disposition in sexual matters”, rather than part of the res gestae, and its resulting exclusion under ss 36BA and 36BC of the Evidence Act 1906 (WA) ([9]). Callinan J did not decide that evidentiary issue in these bail reasons.
Timing mattered. The appeals were unlikely to be listed before the week commencing 22 March 1999 and might not be heard until May 1999. Callinan J considered that substantial parts of the prison terms, and possibly the whole of one custodial term, might be served by the time the High Court published its appeal decisions ([1], 18, 18). The reasons also set out the applicants’ anticipated eligibility for work release, home leave or parole, while noting that eligibility did not guarantee release ([3]-[4]).
Bail was granted to each applicant. The conditions required each to live at a specified address, enter a $10,000 bail undertaking, and provide a $10,000 surety undertaking. Each also had to surrender to the Sheriff when notified in writing of the appeal hearing date, to serve any remaining balance of the sentence, and was prohibited from communicating directly or indirectly with the complainant or any prosecution witness. The specified residence differed between applicants.
The central reasoning is cumulative. Callinan J accepted that exceptional circumstances were required for bail under the High Court’s inherent jurisdiction ([15]). He did not treat any single consideration as automatically decisive. Instead, he assessed the combined circumstances of the three applications, and expressly said that special leave alone would not establish the required circumstances ([19]).
First, special leave had been granted in all three cases. Callinan J described that fact as relevant ([17]). The judgment had earlier referred to Chew v The Queen [No 2], where the grant of special leave was treated as indicating that an appeal raised questions of substance and was not frivolous ([12]). But the judgment distinguishes relevance from sufficiency: the grant contributed to the assessment but did not settle it.
Second, the proposed appeal point was considered arguable and potentially substantial. Callinan J stated that this view was reached without seeking to prejudge the appeals, and considered that success would probably justify a retrial (18). This was a preliminary assessment for the bail applications, not a finding that the convictions were wrong.
Third, the expected appeal timetable mattered in relation to the sentences. The appeals might not be determined until months after the bail decision. Callinan J considered the possibility that substantial custodial periods would be served before the appeal decisions were published (18, 18). He reasoned that if the applicants were ultimately acquitted, the benefit of acquittal could be a “hollow” one if imprisonment had already been served (18).
Fourth, the judge considered the circumstances of the conviction appeals. There was a carefully reasoned dissent in the Court of Criminal Appeal (18). The reasons also note that a concession had apparently been made there that some evidence had been wrongly excluded, while recording the respondent’s position that the concession did not affect the correctness of the convictions or the Court of Criminal Appeal’s decision (18). The judgment therefore records the disagreement without resolving it.
Other factors included that the applicants had been granted bail pending trial (18), that their cases were broadly alike apart from the likely duration of imprisonment (18), and that there was no suggestion they were likely to abscond or offend while on bail (18). Callinan J also considered that granting bail, while requiring the full actual prison terms to be served if the appeals were refused, would not adversely affect the public interest in the convictions and their consequences (18). The reasons acknowledge that success on the legal ground might still leave the applicants needing to address the proviso, but distinguish their argument from a case based only on the proposition that the verdicts were unsafe and unsatisfactory (18).
The ultimate conclusion was carefully limited: it was the combination of these factors and the particular facts that met the threshold. The judgment is not authority, on its own terms, for an automatic entitlement to bail whenever special leave is granted.
The reasons discuss earlier approaches to bail pending appeal, but do not provide a comprehensive account of the law before and after the decision. They state that several single Justices had held that exceptional circumstances must be shown for bail granted under the High Court’s inherent jurisdiction ([15]). Callinan J also noted that special leave and the approaching end of a custodial period had not usually been regarded as special circumstances by themselves in cases such as Parsons v The Queen and Robinson v The Queen ([15]).
The judgment’s contribution is therefore best stated narrowly. It applies the exceptional-circumstances requirement through a cumulative, fact-specific assessment. It confirms that special leave is relevant, while expressly rejecting the proposition that special leave alone would be enough ([17], [19]). It also treats the likely time in custody before appellate determination, the possible practical value of a successful appeal, and the absence of identified bail risks as matters capable of contributing to the assessment ([18]).
Callinan J considered whether the fact that bail was granted might treat the conviction as provisional. He expressed doubt about that characterisation. In his view, the verdict remains in force unless quashed; bail only interrupts one consequence of the verdict, namely service of a custodial sentence ([10]). This explains how interim release can coexist with the continued legal effect of the conviction while the appeal remains unresolved.
The reasons also discuss the effect of changes to the special leave process. Callinan J referred to the insertion of s 35A of the Judiciary Act 1903 (Cth), and to Gaudron J’s observation in Robinson that the considerations relevant to bail might not be as restricted under the newer procedures ([11]). The judgment does not define the full reach of that statutory change. It uses the point as context for considering the relevance of special leave.
At [10], Callinan J wrote: “The verdict stands unless and until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail.” In plain English, release pending appeal does not itself cancel the conviction. The conviction remains in place unless the appeal succeeds; bail temporarily affects imprisonment.
At [17], he stated: “On any view, the fact that a grant has been made must be a relevant factor.” The point is that special leave has significance in a bail assessment. It indicates that an appeal has passed the special leave threshold, but the reasons at [19] make clear that it is not independently decisive.
At 18, Callinan J referred to substantial parts of the custodial sentences being likely to have been served, and possibly completed in one case, by the time the appeal decisions were published. This identifies the practical time-related concern: an appeal decision may arrive after much or all of the prison term has already been served.
At 18, he said that if the applicants were acquitted, “the benefit of such acquittals would be hollow victories.” In plain English, a later successful appeal may have limited practical value if the person has already spent the relevant period in prison. This was one factor among several, not an independent test.
At [19], he emphasised “the combination of the matters” and the facts of these cases. He then said that “[a] grant of special leave alone certainly would not do so.” This is the clearest statement of the decision’s limiting principle: the outcome rested on a combined assessment rather than a single trigger.
The decision is most directly relevant to an application for bail pending a High Court appeal where special leave has already been granted, and where the applicant can point to a potentially substantial appeal issue and a realistic prospect that the appeal will not be determined until significant imprisonment has been served. The decision also shows the relevance, in the particular assessment, of prior bail pending trial, a dissenting appellate judgment, the absence of identified risks of absconding or offending, and conditions capable of securing attendance and restricting contact with witnesses ([18]).
It does not establish that any one of these facts is sufficient. In particular, the judgment expressly says that special leave alone would not establish exceptional circumstances ([19]). Nor does it decide the bail position for every convicted person, every appellate court, or every sentence. Its reasoning is tied to the High Court’s inherent jurisdiction and to the circumstances before Callinan J.
The orders illustrate how conditions were tailored to these applications: specified residences, financial undertakings, sureties, a requirement to surrender when given notice of the appeal hearing date, and a prohibition on contact with the complainant and prosecution witnesses. The judgment records those conditions as part of the orders, not as a universal checklist applicable to every bail application.
The supplied judgment contains no later cases applying, distinguishing, or otherwise treating Marotta v R. It would therefore be unsafe to state from this source how later courts have received or developed its reasoning.
The cases that Callinan J himself cited are earlier authorities discussed in the reasons: Chamberlain v The Queen [No 1], Robinson v The Queen, Chew v The Queen [No 2] and Parsons v The Queen. The judgment’s account of them is limited to the propositions and context set out at [10]-[15]. It does not provide a record of later treatment of Marotta.
For research purposes, the source supports identifying the decision as a single-judge ruling on bail applications, and as a fact-specific explanation of how several considerations may combine to meet an exceptional-circumstances threshold. Any claim about its subsequent precedential treatment would require later authorities not included in the material supplied here.
The reasons do not specify a formula for weighing the listed circumstances or define how much weight each factor should receive in a different case. Callinan J states that their combination was sufficient on these facts, while leaving open how a different combination would be assessed ([19]).
The reasons also do not determine the merits of the evidentiary appeal ground. They describe the question of whether certain telephone-conversation evidence was wrongly excluded, but the bail judgment does not decide whether the evidence was admissible or whether any error affected the convictions ([9], 18, 18). Likewise, it notes the possible relevance of the proviso without resolving its application to the eventual appeals (18).
Finally, the judgment does not explain the precise relationship between the changes to special leave procedures under s 35A of the Judiciary Act and the scope of the bail discretion. It notes the possible relevance of that procedural change, but does not lay down a general rule about its effect ([11]). Those questions, along with any later judicial treatment of the decision, cannot be answered from this judgment alone.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
CALLINAN J
Matter No P5/1998
JAMES LUIS MAROTTA APPELLANT
AND
THE QUEEN RESPONDENT
Marotta v The Queen; King v The Queen; Bull v The Queen
(P5-1998) [1999] HCA 4
Date of Order: 8 December 1998
Date of Publication of Reasons: 9 February 1999
ORDER
The appellant be admitted to bail pending the determination of his appeal to this Court on the following conditions:
1. That the appellant reside with his parents at 148 Whitfield Street, Bassendean.
2. That the appellant enter into a bail undertaking in the form of Form 6 of the Bail Regulations (WA), in which he agrees to forfeit $10,000 to the Crown if he is convicted of the offence of failing to appear as required.
3. A person approved by a Justice of the Peace enter into a surety undertaking in writing that he will, subject to the Bail Act 1982 (WA), forfeit $10,000 if the appellant fails to comply with any requirement of his bail undertaking.
4. That on a date to be fixed by notice to him in writing by the Deputy Registrar of this Court, as the date on which his appeal will be heard and determined, he surrender himself to the Sheriff of the Supreme Court of Western Australia to serve any balance of his sentence then
2
remaining unserved in accordance with the warrant of commitment pursuant to which he is confined at that time.
5. The appellant shall not communicate with the complainant named in the indictment or any other prosecution witness either directly or indirectly.
Representation:
R K Williamson for the appellant (instructed by Williamson & Co)
B Fiannaca with V R Campbell for the respondent (instructed by Director of Public Prosecutions (Western Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
CALLINAN J
Matter No P8/1998
RODNEY WILLIAM KING APPELLANT
AND
THE QUEEN RESPONDENT
Date of Order: 8 December 1998
Date of Publication of Reasons: 9 February 1999
P8/1998
ORDER
The appellant be admitted to bail pending the determination of his appeal to this Court on the following conditions:
1. That the appellant reside with his wife at 17 Clark Street, South Bunbury.
2. That the appellant enter into a bail undertaking in the form of Form 6 of the Bail Regulations (WA), in which he agrees to forfeit $10,000 to the Crown if he is convicted of the offence of failing to appear as required.
3. A person approved by a Justice of the Peace enter into a surety undertaking in writing that he will, subject to the Bail Act 1982 (WA), forfeit $10,000 if the appellant fails to comply with any requirement of his bail undertaking.
4. That on a date to be fixed by notice to him in writing by the Deputy Registrar of this Court, as the date on which his appeal will be heard and determined, he surrender himself to the Sheriff of the Supreme Court of Western Australia to serve any balance of his sentence then remaining unserved in accordance with the warrant of commitment pursuant to which he is confined at that time.
2.
5. The appellant shall not communicate with the complainant named in the indictment or any other prosecution witness either directly or indirectly.
Representation:
R K Williamson for the appellant (instructed by Williamson & Co)
B Fiannaca with V R Campbell for the respondent (instructed by Director of Public Prosecutions (Western Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
CALLINAN J
Matter No P9/1998
CHRISTOPHER JOHN BULL APPELLANT
AND
THE QUEEN RESPONDENT
Date of Order: 8 December 1998
Date of Publication of Reasons: 9 February 1999
P9/1998
ORDER
The appellant be admitted to bail pending the determination of his appeal to this Court on the following conditions:
1. That the appellant reside at 95 Unnaro Road, Hillman in the State of Western Australia.
2. That the appellant enter into a bail undertaking in the form of Form 6 of the Bail Regulations (WA), in which he agrees to forfeit $10,000 to the Crown if he is convicted of the offence of failing to appear as required.
3. A person approved by a Justice of the Peace enter into a surety undertaking in writing that he will, subject to the Bail Act 1982 (WA), forfeit $10,000 if the appellant fails to comply with any requirement of his bail undertaking.
4. That on a date to be fixed by notice to him in writing by the Deputy Registrar of this Court, as the date on which the appeal will be heard and determined, he surrender himself to the Sheriff of the Supreme Court of Western Australia to serve any balance of his sentence then remaining unserved in accordance with the warrant of commitment pursuant to which he is confined at that time.
2.
5. The appellant shall not communicate with the complainant named in the indictment or any other prosecution witness either directly or indirectly.
Representation:
R G W Bayly for the appellant (instructed by Bayly & O'Brien)
B Fiannaca with V R Campbell for the respondent (instructed by Director of Public Prosecutions (Western Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CALLINAN J. These are revised reasons for the ex tempore judgment I gave on 8 December 1998. These are applications for bail pending the hearing of appeals to this Court in 1999. In the ordinary course of events the appeals are unlikely to be listed for hearing before the week commencing 22 March 1999 and it is possible that they will not be heard until May 1999. The applicants were convicted of the offences of sexual penetration without consent and indecent assault by the District Court of Western Australia on 2 July 1997. The applicants were also acquitted of other charges of sexual penetration without consent, indecent assault and deprivation of liberty. The charges arose out of an incident alleged to have occurred on 18 November 1995.
Each applicant was sentenced to a term of imprisonment; Mr Bull to a term of eight years, Mr Marotta seven years and Mr King six years.
The Director of Public Prosecutions did not dispute that Mr King is eligible for work release, which would mean that he may be released from prison to go to a job, if he has one, in January 1999. He is eligible for release on parole on 2 July 1999. Mr Marotta is eligible for home leave in March 1999. He could then, if successful in obtaining home leave, be permitted to go home on one day each month. In September 1999, if he has a job, he may be released on work release. He will be eligible for parole in March 2000. Mr Bull will be eligible for parole on 31 October 2000.
It is not certain, of course, that release will occur on the dates when each of the persons to whom I have referred is eligible for release. That will depend upon other matters, but there is no suggestion in any of the evidence that there has been any disqualifying conduct.
Appeals by the applicants against conviction were dismissed by a majority of the Court of Criminal Appeal of the Supreme Court of Western Australia (Pidgeon and Franklyn JJ, Ipp J dissenting) on 19 January 1998.
Applications for special leave to appeal to this Court from those decisions were filed on 13 February 1998.
In Perth on 19 and 21 October 1998 I heard applications for bail pending the hearing of those applications for special leave. I then ordered that the applications for bail be adjourned sine die and that the applications for special leave be expedited to be heard on 20 November 1998. I also made consequential orders with respect to the timing of various interlocutory proceedings to lead to the hearing of the special leave applications.
Special leave in each of these matters was granted by this Court (Gleeson CJ, Gummow and Kirby JJ) on 20 November 1998.
Their Honours refused special leave to appeal on the ground that the verdicts of guilty were inconsistent with the acquittals. The ground of appeal in respect of which special leave was granted is as follows:
"[T]he Court of Criminal Appeal was wrong in law to rule that evidence of the sexually explicit contents of the telephone conversation between Mr Bull (an appellant) and the complainant soon before the time of the alleged offences, and other related conversations, was evidence of 'the complainant's disposition in sexual matters', and not part of the res gestae, and was, therefore, inadmissible by virtue of ss 36BA and 36BC of the Evidence Act 1906 (WA)".
In Chamberlain v The Queen [No 1]1 Brennan J observed that a verdict of a jury was not to be treated for the purposes of an application for bail as provisional. That was a case however, in which an application for bail had been brought pending the hearing of an application for special leave to appeal to this Court. With respect, I doubt whether a grant of bail does treat a verdict of guilty as provisional. The verdict stands unless and until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail.
Since his Honour's decision in Chamberlain, the Commonwealth Parliament has amended the provisions concerning the Court’s power to allow an application for special leave to appeal by the insertion of s 35A of the Judiciary Act 1903 (Cth). That a change in the law may perhaps justify a different view from that which was stated by Brennan J, was adverted to by Gaudron J in Robinson v The Queen2. Her Honour said there:
"Since the introduction of new procedures with respect to the grant of special leave to appeal in criminal cases, it may be that the considerations to be taken into account by this Court are not quite as restricted as they were in the case of applications pending the grant of special leave to appeal."
The granting of bail by this Court is not without precedent. For example in Chew v The Queen [No 2]3, Toohey J held that the fact that the applicant had obtained special leave to appeal was a relevant factor in his Honour's consideration of an application for bail, as it indicated that the appeal was thought to raise some questions of substance, and was not frivolous.
In that case the appeal had been heard. What seems to have impressed his Honour was that by the time the decision could be expected to be given the whole of the custodial part of the sentence in question there would have been served. Although the appeal had been heard in that case, that did not seem to be the decisive factor in his Honour's decision and, indeed, counsel representing the Director of Public Prosecutions was not able to point to any practical difference between that case and this case, particularly when, as there, his Honour carefully abstained as indeed he was, with respect, probably bound to do, from expressing any view as to the likely outcome of the appeal upon which he had by then sat.
Applications for special leave to appeal to this Court are not liberally granted. The annual reports of the High Court set out the statistics for cases and special leave applications heard in the year preceding their publication. In the year ending 30 June 1996 there were 71 applications for special leave to appeal from decisions in criminal matters and only 15 were granted. In the year ending 30 June 1997, 17 out of 70 were granted and in the last completed year ending 30 June 1998, 20 out of 86 applications were successful.
I accept that it has been held by a number of Justices of this Court sitting alone, that exceptional circumstances need to be shown for a grant of bail by this Court in the exercise of its inherent jurisdiction to grant bail4. I also accept that in some cases it has been held that a grant of special leave to appeal5, and the imminence of the end of a custodial period of a sentence have not usually of themselves been regarded as special circumstances6. However, the outcome of those cases was no doubt affected by the facts which the Justices of this Court had to consider in them.
The official records of this Court might suggest to some that a grant of special leave is, of itself, such a rare event, that it is a rather exceptional circumstance in itself.
On any view, the fact that a grant has been made must be a relevant factor.
(1983) 153 CLR 514 at 519-520. ↩
(1991) 65 ALJR 519 at 519. ↩
(1991) 66 ALJR 221. ↩
Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 518-519. ↩
Parsons v The Queen (1998) 72 ALJR 1325; Robinson v The Queen (1991) 65 ALJR 519. ↩
Parsons v The Queen (1998) 72 ALJR 1325; Robinson v The Queen (1991) 65 ALJR 519. ↩
Marotta
R [1999] HCA 4; 73 ALJR 265; 160 ALR 525
(1983) 153 CLR 514
(1991) 65 ALJR 519
(1991) 66 ALJR 221
(1998) 72 ALJR 1325
Each appellant was admitted to bail pending determination of his appeal, subject to the specified individual residence conditions, undertakings, surrender requirement, and no-contact condition.
I have decided that in these cases bail should be granted. The reasons for my decision are:
special leave has been granted in all of the cases;
without in any way seeking to pre-judge the appeals, I am of the view that they raise an arguable point, which may have real substance and which, if it succeeds, would probably justify a retrial;
pending trial, the applicants were granted bail;
substantial parts of the custodial sentences are likely to have been served and possibly completed in one case by the time this Court's decisions are published;
all of the applicants are, save with respect to the duration of the periods likely to be served, in the same position;
if the applicants are acquitted, then the benefit of such acquittals would be hollow victories;
the appeals in these cases will not in the normal course be heard for some months yet: there is no reason why the appeals should be given priority over other pending criminal appeals, and it may be expected that the Court would reserve its decision for some time after the hearing;
it seems to have been accepted that a concession was made in the Court of Criminal Appeal that some evidence had been wrongly excluded, although it has been made clear to me by the respondent to these applications that it contends that that concession did not in any way affect, or should not have affected the correctness of the convictions and the decision of the Court of Criminal Appeal;
I am of the view that so long as it be clear that the full terms in actual time to be served in prison are served if the appeals are refused, the public interest in the fact of the convictions and their consequences will not be adversely affected, whereas, there is, in my opinion, no public benefit or interest in the incarceration of people who might turn out to have been wrongly convicted according to law;
although even if the applicants make out their legal points, they may still have to demonstrate that their cases do not call for the application of the proviso, their cases are not ones in which they simply contend that the verdicts were unsafe and unsatisfactory and on that account alone should be set aside;
there is a carefully reasoned dissenting judgment in the Court of Criminal Appeal;
there is no suggestion that these applicants are likely to abscond or offend whilst on bail; and
there is, and almost all penal legislation and executive policies relating to parole, work release, home detention, rehabilitation and the like recognise, a real distinction between custody in prison and the head sentence actually imposed: and accordingly it is not inappropriate to have regard to the non-custodial aspect of a sentence in considering an application for bail.
Those are the reasons which lead me to the conclusion that bail should be granted in these cases. I emphasise that it is the combination of the matters to which I have referred and the facts of the cases before me that demonstrate sufficiently exceptional circumstances to warrant bail. A grant of special leave alone certainly would not do so.