Appeal - Right of appeal from single Judge refusing bail to Full Court - Whether procedure under Criminal Code (WA), s 702 is an alternative open

Bianchi v The Queen; Dawson v The Queen, unreported; CCA SCt of WA; Library No 960331; 20 June 1996

Caratti v The Queen [1999] WASCA 91

Marotta v The Queen [1999] HCA 4

Mullally v The Queen [1999] WASCA 263

Newhart Developments v Co-Operative Commercial Bank Ltd [1978] 1 QB 814

Re Geneva Finance Ltd (Receiver and Manager Appointed) (1992) 7 WAR 496

Sun-Life Properties Pty Ltd v Chellaston Pty Ltd [1993] FCA 206; (1993) 10 ACSR 476

Tran v The Queen, unreported; CCA SCt of WA; Library No 990117; 11 March 1999

Willers v The Queen, unreported; CCA SCt of WA; Library No 950284; 7 June 1995

1 MALCOLM CJ: I am of the opinion that this application by the appellant for bail should be dismissed for the reasons to be published by Murray J. I only wish to add one or two comments of my own.

2 Assuming that the unsigned copy letter to the Department of Social Security dated 8 December 1992 was wrongly admitted into evidence at the trial, the fact remains that there was evidence that the appellant knew that the five cheques payable to New Zealand Freight Lines and the sixth cheque payable to Boltrans Nominees Pty Ltd ("Boltrans") had been received by Mr Bolger on behalf of Boltrans. As Murray J has pointed out, there was overwhelming evidence that these cheques and the proceeds of them were the property of the company and that the money should have been paid to the Receiver who had been appointed.

3 The Crown case at the trial was that by withdrawing the company's funds from the trust account and applying them to his own use in respect of a claim for costs, the appellant stole them. As a solicitor he would be expected to know and must have known that the funds were the property of the company and payable to the Receiver. The appellant did not seriously contest the clear evidence at trial that the money was the property of the company. He asserted an honest claim of right on the ground that Mr Bolger had paid him the money and that he had a first charge on it for his costs under s 73 of the Legal Practitioners Act 1893. The question whether it was open to the jury to conclude that this claim was excluded beyond a reasonable doubt by the Crown case is at the heart of this pending appeal.

4 I agree with Murray J that there is no serious or reasonable prospect of success in this appeal. In all the circumstances, regarding this as a renewal of the application for bail, I agree with Murray J that the appellant has not made out a case for bail pending appeal. It follows that, in relation to the honest claim of right, assuming that, notwithstanding the lack of any objection at the trial, the tender through Mr Bolger, although he did not prove the document, of a purported copy of a letter apparently written by "Patrick Mullally & Co" to the Department of Social Security was wrong and the letter was inadmissible, the appeal was nonetheless doomed to failure. In any event, Murray J has demonstrated that the document, although an unsigned copy of the letter, was admissible because there was evidence from which a reasonable jury might conclude that the appellant was its author.

5 However, even if that view were wrong, I am of the opinion that, on the face of it, no miscarriage of justice occurred as the jury were entitled to conclude that the appellant knew at all material times that the proceeds of the relevant cheques were the property of the company and that Mr Bolger was not entitled to use them for his own use or benefit and, in particular, as security for his personal costs payable to the appellant.

6 WALLWORK J: The facts concerning the evidence at the trial of the appellant are set out in the reasons for judgment of Malcolm CJ and Murray J which I have had the advantage of reading.

7 As Murray J says in his reasons the question to be determined by this Court was whether there were exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.

8 I agreed that the appellant did not satisfy that test.

9 MURRAY J: In form, although this matter was brought before the Court of Criminal Appeal, it was mounted as an appeal from a Judge of this Court dismissing an application for bail under the Bail Act 1982 (WA). Such a general right of appeal was held to exist in respect of the law as to bail as it was before the enactment of the Bail Act: Lim v Gregson [1989] WAR 1. The right of appeal was that conferred by the Supreme Court Act 1935 (WA), s 58(1)(b). In other words, that was an appeal from the decision of a single Judge to the Full Court and not to that Court constituted as the Court of Criminal Appeal under the Criminal Code (WA), s 687.

10 The question whether that right of appeal survived the enactment of the Bail Act was addressed in Jemielita v The Queen (1994) 12 WAR 362. At 364 Pidgeon J, with whom Owen and White JJ agreed, held that such a right of appeal remained available despite the fact that by s 53 of that Act, specific rights of appeal to the Full Court were granted in respect of the limited class of decisions made under the Bail Act, s 52. It is not necessary for present purposes to reconsider the correctness of that decision.

11 The grounds of appeal are quite inadequate. They were that the learned Judge at first instance erred in law by proceeding in effect to conclusively determine the grounds of an appeal which is pending, brought by the applicant to the Court of Criminal Appeal against his conviction. Further, it is contended that his Honour erred in law by failing to place any, or any adequate weight on the period during which the appellant would remain in custody pending the determination of his appeal against his conviction. I shall return to the history of the matter shortly.

12 When the appeal to this Court was opened it soon became apparent that counsel was effectively re-arguing the application for bail presented to the Judge at first instance, rather than presenting argument in support of the grounds of appeal. He supported this conduct upon a quite different basis to that to which I have referred above.

13 The appellant was presented in the District Court upon an indictment for stealing. On 21 October, after a four day trial, he was convicted of stealing the sum of $26,678.23 by withdrawing the money from his trust account, the applicant being at that time a solicitor. On 22 October he was sentenced to imprisonment for 2 years with eligibility for parole. Under the Sentencing Act 1995 (WA) the non-parole period would expire on 21 June 2000. We are informed that an appeal against conviction has been lodged, although the evidence does not say when that was done. The grounds of appeal are set out in the papers.

14 On about 4 November 1999 the appellant applied for bail pending the determination of his appeal. That application was made under the Bail Act, s 13 and, by Part A of Schedule 1 of the Act, the jurisdiction to consider the application was exercisable by the Court of Criminal Appeal or a single Judge acting under the Criminal Code, s 702: cl 4(d). The application was heard by Heenan J on 12 November and refused on 19 November.

15 The power of the Court of Criminal Appeal to admit an appellant or applicant to bail is also directly conferred on a single Judge by s 702, but the section goes on to provide that if the Judge refuses such an application, the appellant "shall be entitled to have the application determined by the Court of Criminal Appeal as duly constituted for the hearing and determination of appeals under this chapter." That provision clearly offers an alternative route to the Full Court, but on that occasion, constituted as the Court of Criminal Appeal. The procedure does not, of course, involve an appeal from the Judge at first instance, but a renewal of the application before the Court of Criminal Appeal.

16 That might be thought to be the more efficacious procedure, enabling the applicant to call upon the Full Court to reconsider his or her case for bail de novo. But that is not the procedure which has been employed in this case, although in argument the merits of the appellant's case for bail were canvassed. The Crown was allowed time to provide written submissions as it was taken by surprise by the argument presented for the appellant. Those submissions have been received and responded to, a process which was completed on 17 December, 1999. On 22 December 1999 this Court dismissed the appeal and refused the appellant bail pending his appeal against his conviction.

17 In a case such as this the jurisdiction to grant bail is governed by the Bail Act, Schedule 1, Part C, cl 4, which requires the court to consider whether "there are exceptional reasons why the defendant should not be kept in custody". Bail may only be granted if the Judge is satisfied that such is the case and in addition, that the ordinary principles governing the grant of bail may be satisfied. I may say immediately that no issue would appear to arise with respect to the application of those ordinary principles. The appellant is a person to whom bail would be granted upon their application. The question is whether there are exceptional reasons why he should not be kept in custody pending the determination of his appeal.

18 One matter raised is the fact that given the time of the year and the timing of the appeal against conviction, it would be unlikely to be disposed of, even if listed expeditiously, before the expiration of the major portion of the non-parole period of the appellant's sentence. That alone cannot be enough to constitute an exceptional circumstance: Robinson v R (1991) 65 ALJR 519 per Gaudron J at 519 - 520, but it may be enough in a case where it is possible for the court considering the grant of bail to conclude that there are such strongly arguable grounds of appeal as to enable the court, without finally determining the matter, to conclude that there are good prospects that the appeal against conviction is likely to be successful.

19 The appellant's appeal against conviction is based on a number of grounds. Before the single Judge reliance was placed on four, chosen as the strongest available, in the effort to demonstrate that there were good prospects of success in the appeal. Before considering them specifically, it is necessary to know something about the case at trial and the evidence before the District Court.

20 I have mentioned that the appellant was charged with stealing a sum of money. The Crown case was that since about 1972 a Mr Bolger conducted a transport business under the name "New England Freight Lines". It was proved at trial that in 1992, on the advice of his accountant, Mr Bolger incorporated a company called "Boltrans Nominees Pty Ltd", a company of which he and his wife were the shareholders and directors. That company took over the business and continued to trade under the registered business name, "New England Freight Lines". Later in that year, because Mr Bolger suffered a serious injury which affected the operation of "Boltrans Nominees Pty Ltd", the company became unable to pay its debts and a receiver was appointed.

21 The company's largest creditor was the Commonwealth Bank. The loan or loans made by the bank were secured by a floating charge over the assets of the company. When the terms of repayment of the loan were breached, the receiver appointed by the bank took control of the company's assets, including its outstanding debts.

22 When the company got into difficulty, Mr Bolger consulted the appellant, who was then a practising solicitor. During the course of the appellant's dealing with Mr Bolger, he received from Mr Bolger six cheques for the total sum of $26,678.23. That was early in December 1992. Five of the cheques were made payable to New England Freight Lines and the sixth to Boltrans Nominees Pty Ltd. They bore various dates from 21 October 1992 to 16 November 1992. It is clear that they were received by Mr Bolger for Boltrans Nominees Pty Ltd. The evidence, I think, was indeed overwhelming in relation to that aspect of the matter and it could hardly have been clearer that the money was that of the company and should have been delivered into the hands of its receiver.

23 However, the evidence was that the appellant paid the cheques into his trust account in December 1992 and January 1993. Thereafter, between December 1992 and December 1993 the appellant withdrew all that money and used it for his own purposes. His trust account ledger shows that the money was withdrawn to discharge an asserted liability of Bolger to pay disbursements and legal costs incurred with the appellant.

24 At trial it was, of course, the Crown's contention that by removing the funds from the trust account to his own use the appellant stole them, those being monies owned by the company and payable to its receiver. Although much was in issue at trial, the appellant did not, I think, seriously contest, as indeed he could not, the ownership of the money. His defence was not that the money was his, having been paid to him by Bolger, but he asserted an honest claim of right to it on the ground that it was given to him by Bolger and properly paid into his trust account in which place he had a first charge upon the money in payment of his costs under the Legal Practitioners Act 1893 (WA), s 73. For present purposes it is unnecessary to comment generally upon this defence or upon whether the claim said to arise in that way could justify the withdrawal of funds from the trust account, rather than their preservation therein, merely upon the authorisation of Mr Bolger.

25 As to the grounds of the appeal against conviction upon which reliance was placed in supporting the application for bail, I may say at the outset that the ground concerning the admissibility in evidence of a schedule identifying a payment as "security for costs" seems to me to be of no persuasive power, although the schedule was clearly inadmissible. Again, as to the ownership of the money, I think the ground relied upon is weak. The evidence seems to me to amply demonstrate that the directions of the trial Judge in the District Court upon this issue were given in appropriate terms.

26 As to the ground concerned with the directions given by the trial Judge about the proposition relied upon by the defence that the appellant's criminal responsibility was negated by an honest claim of right pursuant to the Code, s 22, the argument seems rather to focus upon her Honour's transposition at some points of her direction of the word "genuine" for the word "honest" in discussing with the jury the nature of the "defence". I think there is no substance in that, but I have carefully read the direction given by the trial Judge in the District Court and I am unable to see anything in it which did not clearly leave with the jury the issue relevant to the application of s 22 and leave them with a clear understanding of the impact of that issue upon the Crown's capacity to prove its case of theft.

27 Finally, as to the question of an honest claim of right, the Crown at trial tendered through Mr Bolger, although he did not prove the document, a copy as it appeared to be of a letter purporting to be written by "Patrick Mullally & Co" to the Department of Social Security in connection with Mr Bolger's position as a person who may be entitled to receive social security benefits. The document is dated 8 December 1992. It is unsigned. Relevant to its authorship is the author's code at the top left hand corner of the letter, "PEM:6564:CL:jmr". The letter refers to the receivership of the Commonwealth Bank of the property of the company Boltrans Nominees Pty Ltd of which Mr Bolger is described as a director. It says:

"Boltrans Nominees Pty Ltd is not in receipt of any funds, as all of these funds are claimed legally by the Receiver on behalf of the Commonwealth Bank."

The letter continues by observing that Mr Bolger will not receive any distribution of funds from the company as the debt owing to the Commonwealth Bank is substantially in excess of any monies which the company may receive. The letter concludes:

"As at present and for the foreseeable future, Mr Bolger will not be in receipt of any distribution or funds of any sought (sic) whatsoever, or any property from his company."

28 Clearly, if the appellant was the author of that document, his capacity to maintain an honest claim of right to the money in his trust account was gravely impaired. In his evidence at trial when shown the document, Mr Bolger recalled that he instructed the appellant to draft the letter and provided the information contained therein, but he had no knowledge whether or not the letter had been sent. The letter is argued to be inadmissible on the ground that its authorship is not established. As to that it would be noted that the letters "PEM" at the top of the letter in the authorship code are the initials of the appellant. It was suggested that an employee of the legal firm was a Mr Patrick Mungar. There was, however, no evidence of Mr Mungar's middle name or, if he has one, whether it has the initial "E". Nor was there evidence that he was employed by the legal firm at the relevant time.

29 In my view the inadmissibility of the document in evidence at the trial is only weakly arguable. I think it to be admissible, although an unsigned copy, because there is evidence from which a reasonable jury might conclude that the appellant was its author. That evidence is supplied by Bolger's recollection, when his memory was refreshed by seeing the document, that he had instructed the appellant to write such a letter for him, and he had supplied to the appellant the information to be inserted therein, together with the presence on the document of the appellant's initials "PEM". Of course, if the jury did not find themselves so satisfied, then they would not use the content of the letter as evidence against the appellant.

30 However, if they were satisfied that he was its author, it was effectively an admission by him of facts which showed that he knew who was the owner of the money when he received it. He knew to whom the money should go and he knew that he had no right to it. In that regard, as Heenan J commented:

"Its contents show merely that the appellant knew what any solicitor must have known: that is, that the money was not available for payment of his costs, whether or not Mr Bolger had authorised its use for that purpose."

31 I am unpersuaded that there are any serious prospects that the appellant may overturn his conviction on appeal. I do not consider that Heenan J in any way erred in his approach to the matter and, allowing the argument to have the greater width in which it was presented, as if this Court was seized of the matter pursuant to the Code, s 702, I do not think the appellant can make a case for the grant of bail pending his appeal. For those reasons I joined in the orders made on 22 December 1999.