R v Clarke Ii [2001] ACTSC 39

4. Shortly thereafter, however, such sureties were provided and the applicant was then conditionally at liberty.

5. Bail continued thereafter, with some variations to the conditions thereof, until 2 March 2000.

6. Prior to that date, on 27 January 2000, the applicant had, following negotiations with the Crown, been charged on a fresh indictment containing five counts alleging fraudulent conduct contrary to the Corporations Law. The maximum penalty for each of those offences is 5 years imprisonment. The sums involved, however, still exceeded $4,000,000. On 27 January 2000, the applicant was arraigned on that indictment before Gallop J, and entered pleas of guilty to the five counts contained therein.

7. Although an agreed statement of facts had yet to be settled, his Honour promptly accepted those pleas and recorded convictions thereon. At that stage a solicitor, Mr Theakston of Saunders & Company Solicitors, appeared for the applicant. Mr Theakston raised no objection to the course his Honour took. The matter was then adjourned to 2 March 2000 for the sentencing proceedings to continue.

8. Mr Theakston advised the Court that Mr Borick of the Adelaide Bar had been briefed to appear for the applicant in the sentencing proceedings and was expected to adduce "substantial plea material."

9. The applicant's bail was continued upon conditions varied so as to include daily reporting conditions and a condition that he not leave the Territory after 31 January 2000.

10. On 4 February 2000, the applicant appeared personally before Gallop J. The Crown was also represented. A list of eleven bail conditions was mutually agreed between the parties and adopted by his Honour.

11. On 28 February 2000, the applicant again appeared personally. A minor variation was made to the bail conditions, apparently by mutual consent.

12. At the continuation of the sentencing proceedings on 2 March 2000, Mr Borick appeared for the applicant. The statement of facts had not yet been settled, though Mr Borick was optimistic that it would be settled later that day.

13. The matter was stood down to 2.15 pm. Upon resumption Mr Borick advised his Honour:

"Mr Clarke has instructed Ms Saunders [his solicitor] that he intends to make an application to change his plea and that our instructions are withdrawn."

14. The legal advisers then withdrew. The applicant proceeded with an application to change his plea. He sought an adjournment to the next day to prepare his submissions. His Honour reminded the applicant that convictions had been entered and that leave was required to permit a change of plea and set aside the convictions.

15. In opposing that application, Mr Maidment, for the Crown, submitted:

" . . .if your Honour were to allow Mr Clarke's application to stand the matter down until tomorrow morning, we would oppose continuation of bail."

16. The reasons for such a change of attitude on the part of the Crown was expressed by Mr Maidment in the following terms:

"In our respectful submission, the landscape has changed significantly, not least because Mr Clarke has entered into a deed of settlement with Mr Taylor [The Receiver/Manager of Burns Philp Trustee Company] settling all civil actions and allowing Mr Clarke $25,000 or thereabouts Australian, which we understand he now has, and, as it were, disposing of all the civil claims as between himself and the Receiver and the Company. Now, that, in our submission, would provide Mr Clarke with added incentive to leave Australia in the knowledge that he did not have to concern himself with any civil proceedings brought by the Receiver, which civil proceedings he has been steadfastly fighting now for a number of years. And it has also provided him with the money to pay some of the other debts which he may face on his return to the United States, namely, to pay out the Inland Revenue in the United States and to pay lawyers - all lawyers' fees which may properly be claimed against him. Therefore he would be in a position to start with a clean financial slate and at least $25,000 Australian in his pocket as from . . ."

" . . . I have heard enough to see the force of the Crown's position."

18. There then followed a dialogue between his Honour and the applicant concerning his application for an adjournment to prepare submissions to support his application to change his plea. The applicant made it clear that his dispute was as to the allegation of "intent to defraud." He did not deny his breach of duty as a director.

19. It is plain that his Honour was not favourably impressed with this application. He referred to it as "playing ducks and drakes with the court," "humbug" and "delaying the evil day."

20. A short adjournment was granted. In doing so, his Honour told the applicant:

" . . . Now you, Mr Clarke, having answered to your bail at 2.15pm, are in custody."

21. The applicant, though technically regarded as in custody, was permitted to remain in the precincts of the court, rather than in the cells. His Honour said to the applicant:

" . . . I will suffer you at large until 3 o'clock, that is you do not have to enter into any bail. I simply suffer you at large until 3 o'clock provided you confine yourself to the precincts of the court building."

23. The matter resumed later in the afternoon. The application for an adjournment was refused and the applicant then proceeded forthwith to outline his case for changing his plea. His contention seemed to be that, though a trustee company, Burns Philp was entitled to deal with the property of the trusts it administered as if it was a bank dealing with depositors' funds. His Honour rejected that contention as wrong in law. The applicant then suggested that his belief that he could "overdraw" trust accounts held by Burns Philp negated "intent to defraud."

24. His Honour told the applicant that contention was "totally unbelievable." He considered that a jury would also find it so.

25. Thereafter followed a discussion as to "bail for overnight."

26. The applicant pointed to his earlier compliance with the onerous bail conditions he had previously had imposed upon him. He was, he said, aware that the Crown would press for a "substantial custodial sentence." Had he wished to flee, he said, he could have done so already. He needed access to documents, his computer, the Internet and a telephone.

"Well, I see it as a different situation to any situation which has prevailed up till now. I refuse your application for bail."

28. The next day, Ms Saunders appeared for the applicant. Her instructions had been restored, including instructions that the applicant would adhere to his pleas of guilty. Ms Saunders sought an adjournment for a month to obtain a psychiatric report.

29. She also applied for bail on behalf of the applicant. She said that the applicant had a cardiac related medical appointment on 13 March 2000 which he needed to attend. It had previously been established that the applicant had a genuine cardiac condition though the Crown did not agree that it required such attention.

30. The Crown did not oppose the adjournment application. It did oppose the grant of bail.

31. The first ground advanced was that there was no need for the applicant to be at liberty so as to attend upon his Sydney specialist. The second was the "flight risk," again, on the basis that all civil claims had been settled with the Receiver.

32. Notwithstanding that settlement, the Receiver had prepared, and the prosecution tendered, a calculation of losses sustained by Burns Philp and its clients as a consequence of the applicant's offences. It totalled between $4.3m and $4.5m. The Deed of Settlement, which ceded certain bank accounts and other choses in action to the Receiver whilst reserving some funds to the applicant, was produced. Of course, the Deed had no effect in relation to the losses suffered by the clients of Burns Philp. The trustees or beneficiaries suffering loss were still at liberty to sue the applicant notwithstanding the settlement of claims against the applicant on behalf of Burns Philp.

33. Ms Saunders pressed the application for bail so that the applicant could attend upon his Sydney specialist. She pointed out that the applicant had already been on bail for a "very long time" (1 year 159 days, according to the Crown). He could have fled the jurisdiction at any time, she submitted.

34. His Honour declined the application saying that he would list the matter on 13 March 2000 at 9.30am to consider a grant of bail for the purpose only of attending the medical appointment in Sydney. His Honour gave as his reasons the following:

"He is in a different position to any position that he has been in thus far. He has pleaded guilty to these offences, the facts have been presented, he is in the position of a person - he has actually been convicted of those offences."

35. On 13 March 2000, the applicant appeared personally to pursue his request for bail. He indicated that he continued otherwise to be represented (by Mr Geoffrey Nicholson QC) in the sentencing proceedings.

36. The applicant referred his Honour to relevant provisions of the Bail Act 1992 ("Bail Act"), including s 9. That section reverses the presumption in favour of bail in the case of a person sentenced to serve imprisonment whose appeal is then pending. As the applicant pointed out, it does not apply to a person convicted but not yet sentenced.

37. However, his Honour, whilst noting the terms of s 9, considered that the onus lay with the applicant to make a new case for bail to be granted to him.

"Each time you have attended in accordance with the bail recognisance entered into by you that has caused that bail to be spent. You have not got a continuing right to bail."

39. The applicant sought to support his application by reference to overcrowding at the Belconnen Remand Centre and his need to consult legal counsel (Mr Nicholson QC) and his medical specialist.

40. He pointed out, in relation to the "flight risk," that he had been on bail for two months following the entry of convictions and for nine months following committal. He contended that the settlement he had reached with the Receiver did not prejudice his application.

41. Mr Maidment, in opposition, dwelt upon the degree of criminality and deception exhibited in the past by the applicant. He also referred to an order made in 1995, at the request of the applicant, permitting him to change his name to "Peter Robert D'Orleans."

42. That had entitled the applicant to the issue of a United States passport in that name.

43. However, those facts had been known to prosecuting authorities since the applicant's arrest in August 1997.

44. The relevance of that change of name was that it was said to indicate continuing untrustworthiness on the part of the applicant. He had not used that name for the purposes of the proceedings against him relating to Burns Philp.

46. His Honour noted that an applicant for bail who has pleaded guilty to serious offences and has had those pleas accepted by the recording of convictions was in a less favourable position than one merely committed for trial.

47. Reference was made to cramped and crowded conditions at the Belconnen Remand Centre, the need for preparation for the balance of the sentencing proceedings and the applicant's state of health. Also referred to were past breaches of orders and directions in the civil proceedings. The precise breaches were not detailed but his Honour declared himself satisfied that the applicant:

" . . .has treated the authority of this Court and Mr Taylor, as the Official Liquidator of the company, with contempt."

" . . . as a result of a settlement with the Official Liquidator, the applicant now has money with which he could flee the country and if he leaves his present custody, he would have an opportunity to flee and the money to enable him to do it.

I have considered all the material which is before me. I am particularly not persuaded about the case that the applicant has made or endeavoured to make. I think that the overriding consideration prevailing, in my mind anyway, is that there is a strong probability that he would not appear in court if there is an opportunity for him to flee and, all things considered, and particularly having regard to his present position, I am not prepared to grant him bail and the application is refused."

48. The matter was then adjourned to 10 April 2000 to continue the sentencing proceedings.

49. However, on 31 March 2000, Mr Nicholson QC applied to vacate that date. In the course of doing so, Mr Nicholson referred to:

" . . . your Honour's decision to revoke first and then not to exceed [sic-"accede"] to a grant of bail tied to the question of preparation of the proceedings."

HIS HONOUR: I did not revoke bail.

MR NICHOLSON: I apologise, failed to extend bail.

HIS HONOUR: I did not give him bail."

50. That was, his Honour said, because the applicant had pleaded guilty and been convicted and, secondly, because "there was a date certain fixed for sentencing proceedings".

51. The adjournment was granted with his Honour being informed that an appeal was being (or had been) instituted against the refusal of bail. The matter was re-listed before Gallop J on 15 May 2000 at 10.00 am.

52. On 12 April 2000, the applicant applied to the Federal Court of Australia for leave to appeal against Gallop J's decision to refuse bail. A Full Court (Higgins, Finn and Weinberg JJ) refused leave on the basis that the Supreme Court could, under the Bail Act, itself review Gallop J's decision: Clarke v R [2000] FCA 518. Hence this application which was heard on 20 April 2000.

53. The power to review such a decision arises pursuant to s 43(1) of the Bail Act.

"The Supreme Court may review any decision of an authorised officer, the Magistrates Court or the Supreme Court (however constituted) in relation to bail."

54. The powers of the Court on review are set out in s 45:

"(1) The power to review a decision under this Division includes a power to affirm or vary, the decision or to substitute another decision.

(2) A decision as varied or substituted shall be in conformity with this Act.

(3) The review of a decision shall be by way of re-hearing and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review."

55. In Dunstan v DPP (1999) ACTSC 92 FCR 168 it was held that the power of a Full Court of this Court (or of a single Judge where appropriate) to review a "bail decision" is a power to review an original decision not itself being a review of a primary "bail decision." That decision was contrary to the view taken in an earlier decision of a Full Court of this Court in Johnsen v Dustan [1999] ACTSC 30 (9/4/99). However, nothing turns on that for present purposes. This is a review of a primary bail decision.

56. The usual manner of dealing with an application to grant, vary or revoke bail by reason of changed circumstances, as Madgwick J in Dunstan (supra) noted at 180 [40], is by "de novo decisions at first instance".

57. The number and scope of applications in relation to bail is referred to in s 19. A Court may not only grant bail to an accused person but also "enlarge, vary or revoke" bail already granted.

58. The Court, in determining whether to grant bail, has a wide power to "have regard to any information it considers relevant and reliable" (s 19(6)).

59. There is an extended definition of a "person accused." Literally, this applicant had ceased to be merely an accused person once he was convicted. He would ordinarily thereafter no longer be referred to as "the accused" but rather as "the offender" or "the prisoner." However, for the purposes of the Bail Act, under s 3(2), the expression "person accused" includes a reference to a convicted person awaiting sentence.

60. The entitlement of a "person accused" to bail, for present purposes, is governed by s 8 (s 7 deals with bail for "minor offences," s 7A for breach of the peace and s 8A for "domestic violence offences"). Section 8(2) provides:

"A person-

(a) accused of an offence to which this section applies ...

is entitled to be granted bail in accordance with this Act unless-

(c) the court or authorised officer is satisfied that, having regard to the matters referred to in whichever of sections 22 and 23 apply to the accused person, the court or authorised officer is justified in refusing bail ..."

61. That presumption in favour of a grant of bail is reversed only if the "person accused" is not only convicted of an offence but also imprisoned and has appealed against the conviction or sentence (s 9). Bail will be granted in those circumstances only if "special or exceptional circumstances exist justifying the grant of bail."

62. The presumption in favour of an accused person being at liberty pending disposition of criminal proceedings is reinforced by s 10(3):

"Where, during an appearance by an accused person before a court, no specific order or direction is made by the court in respect of bail, the court shall be deemed to have dispensed with the requirement for bail."

63. That is deemed to be a "bail decision" (s 12).

64. Where a bail order has been made, as had happened here before to the applicant's appearance before Gallop J on 2 March 2000, the accused person has the benefit of s 33(2A):

"If the accused person appears before a court in accordance with a bail undertaking referred to in subsection (1) but no specific direction is made by the court in respect of bail, the court is to be taken to have continued bail."

65. Thus, his Honour's comment that the bail order in existence as at 2 March 2000 was "spent" on the applicant's appearance before the court in compliance with its terms was not entirely accurate. It was not "spent" on the applicant's appearance. However, his Honour was empowered, pursuant to s 19(1)(b) to "enlarge, vary or revoke" the bail granted to the applicant. It is apparent that it was his Honour's intention to revoke bail and, despite his Honour's erroneous assumption that bail had simply expired, making it necessary for a fresh application for bail to be made, the effect of his Honour's orders was that he revoked bail on 2 March 2000 and then refused an application to grant bail made by the applicant firstly by his solicitor and then in person.

66. The application for leave to appeal against the orders of Gallop J revoking bail and refusing to grant bail thereafter was, as we have noted, dismissed by a Full Court of the Federal Court on 12 April 2000. That refusal of leave was not by reason of any perceived lack of merit in the applicant's case but rather because an adequate and satisfactory review as of right existed under s 43 (see Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431). A fresh application for bail by the applicant would have been limited by s 19(5) (a subsequent application for bail may be made only if the accused person had been unrepresented "at the hearing of his or her first application ... for bail" or there was sufficient "fresh evidence or information of material significance").

67. Accordingly, a Full Court of this Court was convened on 20 April 2000 (Higgins, Crispin and Ryan JJ) to review the decisions of Gallop J to revoke and then refuse bail.

68. On that review, the applicant was represented by Mr Nicholson QC. The Crown was represented by Mr Maidment of counsel.

69. Mr Nicholson QC noted that on 2 March 2000 there had been no application to revoke bail. There had been no breach of the conditions of bail alleged. The only relevant change of circumstances since the applicant had been convicted upon the fresh indictment presented on 27 January 2000 was that, between 24 and 28 February 2000, the applicant had settled the civil action against him brought by the Receiver of Burns Philp and became entitled to receive approximately $25,000. It must have been contemplated, he submitted, that, when bail was continued on 27 January 2000, the applicant would remain on bail until he was sentenced. That contention, it was submitted, was supported by the terms of s 33(2A).

70. Mr Nicholson QC submitted that there had been no relevant alteration of circumstances, other than the apparent vacillation by the applicant as to his adherence to his pleas of guilty, to support a decision to revoke bail. Once the application to grant bail had been made by the applicant, at least following his re-affirmation of his guilty pleas when he was represented by Ms Saunders, the onus passed to the applicant to show a significant change of circumstances (see s 19(5)). Hence, the need to appeal from the primary decision refusing bail.

71. It was submitted that the circumstances relied on by the Crown, namely, that the applicant had settled his civil dispute with the Receiver, far from increasing the flight risk, had in fact, reduced it. Mr Nicholson QC relied on the fact that the applicant had already spent nearly three years either in custody or at very restricted liberty. That was, of course, almost 60% of the period fixed as the maximum sentence applicable to any of the offences with which he stood charged. Thus his fear of a custodial sentence beyond a reasonable non-parole period was likely to be less than it would have been were credit not to be given, as the Crimes Act 1900 and ordinary sentencing principles require, for time spent in custody and at restricted liberty.

72. Mr Maidment conceded that the Crown had, on 27 January 2000, consented to the grant of bail as varied on that date. Before then it had consistently opposed bail. The decision to consent to a grant of bail, Mr Maidment said, had been made because the applicant appeared to be prepared to "face the music." That consent had extended to the variation of bail made on 4 February 2000. Mr Maidment conceded that the Crown had known of the settlement with the Receiver prior to that date and had not intended to apply to vary or revoke bail on the basis of the receipt of those funds.

73. However, Mr Maidment contended, the Crown had not agreed to consent to bail beyond 2 March 2000. The decision to oppose bail on 2 March 2000 was caused, he said, by the applicant's "erratic behaviour" in respect of his legal representation and his pleas.

74. He contended that the applicant, a person with a history of deceit and defiance of Court orders, was merely seeking to put off the evil day. It was, he said, entirely open to his Honour to have concluded that there was, as at 2 March 2000, a substantial probability of flight.

75. Nevertheless, Mr Maidment did concede that the Crown could not maintain its assertion that the settlement monies of $25,000 were available to fund any flight plans the applicant might have formulated.

76. In reply Mr Nicholson QC highlighted the complexity of the facts relevant to the sentencing proceedings and the need for facilities, not practicable at the Belconnen Remand Centre, to enable preparation of the case with the assistance of the applicant. He expressed the fear that a lack of preparation would tend to lengthen the sentencing hearing even beyond the week already estimated.

77. This Court, after a brief adjournment, announced its decision that bail should be granted on stringent conditions, being those that had been agreed on 27 January 2000, but varied so as to require all funds payable by the Receiver to the applicant to be held in trust by the applicant's solicitors to be disbursed only as agreed by the Director of Public Prosecutions (Cth) or with leave of the Court.

78. The reasons given were expressed in summary form as follows:

* It was accepted that there was a risk of flight.

* It was acknowledged that there was a history of deceitful conduct on the part of the applicant.

* However, it was noted that the risk of flight had been deemed not unacceptable as at 27 January 2000 both by the Crown and Gallop J. The circumstances since then had not heightened any intent to flee the appellant might have formed.

* The discussion of a change of plea on 2 March 2000 could not be regarded as raising the flight risk save as a matter of speculation.

* There was a positive need for the applicant to be at liberty to ensure the smooth preparation and conduct of the sentencing proceedings which might otherwise be obstructed.

79. It was indicated that more detailed reasons would later be provided. These are those reasons.

80. The criteria for the grant of bail to adult accused persons are set out in s 22 Bail Act. There is no distinction drawn in that section between a person convicted but not yet sentenced and a person yet to be convicted, nor is there any distinction between a person who disputes guilt and one who admits it.

81. In each case there is a presumption in favour of bail. Of course, a plea of guilty and the recording of a conviction may assist to displace that presumption.

82. Section 22(1) requires a court or authorised officer to "have regard" to three criteria in deciding whether to grant bail (and, if so, on what conditions). Section 22(1)(a) refers to "the probability of the person appearing in court" (the flight risk). Section 22(1)(b) refers to "the interests of the person charged." Section 22(1)(c) refers to "the protection of the community." In the latter subsection, reference is made to the "likelihood" of harm of the kind there specified (interference with the course of justice; offences on bail; harassment of persons).

83. In the present case it was acknowledged that no concern arose in relation to s 22(1)(c) criteria and that s 22(1)(b) criteria positively favoured release on bail. The area of concern was s 22(1)(a).

84. So far as s 22(1)(a) is concerned, the court is confined to considerations of:

"(i) The background and community ties of the person, having regard to the nature of his or her home environment and employment and to his or her criminal record; and

(ii) The circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the person absconding."

85. In the present case, those criteria were plainly adverse to the applicant, particularly as guilt had been admitted. There was a high probability of a full-time custodial sentence, albeit offset against the time spent in custody and under conditions of restricted liberty.

86. The only ties to the Australian community the applicant has had, at least since both civil and criminal proceedings were commenced in relation to Burns Philp, were those constituted by those proceedings. Clearly, those proceedings, both the civil and criminal proceedings, would provide a motive for flight rather than the contrary.

87. The risk of flight was, of course, not a fanciful one. The level of it depended upon whether it appeared that, even if the applicant were doing his best within lawful limits to delay the "evil hour," he would, as he claimed, "face the music" rather than abscond.

88. If the applicant were to abscond he would, of course, become an international fugitive pursued by all authorities to which Australia has access. Given the recording of convictions, extradition for sentence would be extremely likely if the applicant were found in any of the many countries with whom Australia has, or might come to have, extradition arrangements. The latter prospect would be even less attractive to the applicant if he had been used before his arrest as the DPP alleged, to a lavish, even if "itinerant," lifestyle.

89. The Full Court of the Federal Court in Dunstan (supra) gave consideration to the issue of the magnitude of risk and the burden of discharging the onus of establishing it.

90. The threshold question in Dunstan was whether a Full Court of this Court could review a decision by a single judge of the Court to review a Magistrate's decision to refuse bail pending completion of committal proceedings. The single judge, Higgins J, had reversed that decision, granting conditional bail. The decision of Higgins J was purportedly reviewed and reversed by a Full Court (Miles CJ, Gallop and Crispin JJ): Johnsen v Dunstan [1999] ACTSC 30; [1999] 150 FLR 158. After Mr Dunstan's committal for trial, a primary application for bail was made before Miles CJ. His Honour considered that bail should be refused. In doing so, however, the Full Court of the Federal Court considered that his Honour had erred in a number of respects.

91. First, he had been deceived by the form of "order" made in the Magistrates Court ("Bail not applied for, Bail refused"). That led his Honour to suppose that he was reviewing a Magistrate's decision to refuse bail. However, as Gyles J pointed out (at 179 [31]), if bail had not been applied for, no bail decision had been made.

92. The second error was that his Honour placed reliance, in refusing to grant bail, on the revocation of bail by the Full Court of this Court holding that, unless there had been a relevant change in circumstances, a single judge should not grant bail in apparent conflict with that decision.

93. The primary concern in Dunstan was the protection of the community (s 22(1)(c)). Mr Dunstan's alleged crimes (he was subsequently convicted of a number of them) related to the sending of relatively low-powered but, nevertheless, dangerous letter bombs to persons against whom he had a grievance. Those grievances remained current, hence there was a perceived risk of further efforts by him to harm those persons.

94. Madgwick J accepted that, even under the then current circumstances, there was "some degree of risk" of further offences. However, it did not amount, in his Honour's view, to "any real likelihood (in the sense of a substantial chance)." His Honour said:

"It is a wrong approach to deny a person bail in an effort to eliminate the risk that such a person might commit offences if free to do so. There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass. The question posed, by the Bail Act is whether the Court is satisfied that any risk is sufficient to justify the Court denying the accused person a legal right, the right to bail established by s 8. Weight must be given to this presumption in favour of bail. I am not satisfied that the degree of risk that Mr Dunstan would commit an offence if released on bail justifies the Court denying him bail." (174 [21])

95. Gyles J (with whom Whitlam and Madgwick JJ concurred) stated, having reviewed the relevantly applicable provisions of the Bail Act, that:

"The combined effect of these sections is that the appellant [Dunstan] was entitled to bail unless the Court was satisfied, on the balance of probabilities, that having regard to the applicable matters referred to in s 22, the Court was justified in refusing bail." (182 [45])

96. It was expressly noted that the Bail Act had reversed the common law position that there was no presumption in favour of bail in respect of a convicted but unsentenced person (see 182 [46]).

97. Thus the prosecution carried the onus of properly satisfying the Court that the statutory presumption in favour of bail should be displaced.

98. The Full Court of this Court in Johnsen v Dunstan (supra) had said that the terms "probability" and "likelihood" where used in s 22 did not:

"[require] ... proof on the civil standard that the conduct of the kind specified is likely to occur." (165 [21])

"Any risk that the defendant might engage in the sort of conduct that gave rise to the charges he is facing is a strong indication that bail should not be granted, despite the prima facie right to bail that the Act confers." ([26])

99. Those statements were subjected to considerable criticism on appeal. Gyles J opined that they:

" . . .are liable to cause those endeavouring to follow the Full Court to fall into error by not giving proper weight to the effect of s 8(2).

In my view, it is wrong to approach the issue under ss 8(2) and 22 (1)(c) on the basis of elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not ... If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of a real likelihood is simply to be ignored in the balancing process." (184 [54-5])

100. In the present case, the adverse risk to be weighed was that of flight (s 22(1)(a)) rather than, as in Dunstan, the commission of further offences. Nevertheless, it is clear that the approach to the assessment of the strength of the relevantly identified risk and its role in the balancing process must be the same for any of the factors referred to in s 22(1).

101. Balanced against the flight risk, was the clear need for the applicant to be at liberty properly to instruct his legal advisers (s 22(1)(b)). If that need was obstructed there was a real risk that the proceedings would be unduly protracted or, even, unfair to the applicant.

102. It is unnecessary to determine whether s 22 (and s 23A) permit factors other than those enumerated from being taken into account. Certainly, in considering flight risk, the Court is expressly limited to the matters referred to in s 22(1)(a)(i) and (ii). A similar limitation applies in relation to "the interests of the person charged" (s 22 (1)(b)(i), (ii) and (iii)).

103. In this case, the Crown had the onus of demonstrating that the likelihood of flight raised by the seriousness of the charges faced by the applicant, his lack of ties to Australia and his obvious record of deceit and untrustworthiness outweighed the clear need for him to be at liberty, albeit on restrictive conditions.

104. The Crown could not point to any evidence of preparation for flight or any statement of intention to flee. The applicant had no prior criminal history. He had been on bail for 1 year and 159 days without breach of any of the very restrictive conditions imposed on him.

105. Further, the only alteration in the circumstances extant as at 27 January 2000, when even the Crown was prepared to concede that the flight risk had lessened to the extent that it no longer opposed bail, was that civil proceedings with the Receiver had been settled. The only other change was that on 2 March 2000 when the applicant surrendered himself to the Court, he sought to withdraw his guilty pleas, disputing whether his state of mind had constituted "intent to defraud" at the time of his admitted misconduct. He had also dismissed his legal advisers.

106. It is difficult to accept that any of those events could have objectively heightened the flight risk. Settlement of the civil proceedings removed one source of trouble in Australia from which the applicant might have been motivated to flee.

107. The quibbles raised by the applicant and his dismissal of his legal advisers did not logically lead to a heightened risk of flight. It did create uncertainty. However, that uncertainty was short-lived. The quibbles were abandoned, the solicitor re-engaged. Unless those facts could have been construed as the formation of an intent to flee there was no reason to perceive, from these facts, any increased likelihood of flight.

108. Accordingly, the prosecution, in our view, had failed to adduce any material upon which Gallop J could reasonably have denied bail.

109. Further, in so far as his Honour accepted the submissions of the Crown that the settlement of civil proceedings heightened the risk of flight, his Honour was in error. It was, if anything, a contrary indication.

110. The change of plea and dismissal of counsel, at least given the not irrational grounds for the applicant pursuing those courses of action, even if he had been seeking either to delay sentencing or diminish his perceived guilt, were not capable of being viewed as materially altering the flight risk. In short, whilst we acknowledge that there was a very real risk that the applicant might flee the jurisdiction, the basis upon which bail had been revoked was unsustainable.

111. There were also strong reasons which in our view required that bail be granted. Section 8 of the Bail Act provides that a person is entitled to be granted bail unless the Court can be satisfied that its refusal is justified by reason of the matters referred to in ss 22 and 23. Prior to his Honour's decision it had been accepted by the Commonwealth DPP that a consideration of those matters in relation to the applicant did not justify a refusal of bail though it was accepted that bail should be granted only on extremely onerous conditions. When released on bail the applicant had continued to attend court on regular occasions as required. The reasons advanced by the DPP for its change of attitude to bail were in our view unconvincing and at least in one significant respect quite misconceived. The charges carried a maximum penalty of only 5 years imprisonment and whilst some accumulation of sentences was possible the applicant's counsel had argued that, given the time already spent in custody or at very restricted liberty, it was by no means certain that the sentences actually imposed would require him to serve any further period in custody. Whilst that submission seemed to reflect a somewhat optimistic view, it was nonetheless a matter of some concern that a refusal of bail might mean that the bulk of the non-parole period had been effectively served before any sentencing decision had been made. Evidence of the kind that is usually taken into account during the sentencing process is often not available when an application for bail is considered and due care must be exercised to ensure that, so far as is reasonably practicable, a protracted sentence is served only following a judicial determination that it is an appropriate punishment for the offence charged rather than a mere corollary of a refusal of bail.

112. In those circumstances we set aside his Honour's revocation of bail and denial of a new bail order, substituting therefor bail on stringent terms.

113. On 15 May 2000, the applicant answered to his bail for the continuation of the sentencing proceedings. He applied for an adjournment as his legal representation had been withdrawn pending negotiations with the Receiver concerning funds due to the applicant. His Honour refused applications to strike out the indictment, for rulings of law before sentence and to permit a change of plea. Reasons were reserved. The applicant was initially remanded in custody but was then granted bail by his Honour on 18 May 2000 to appear on 26 June 2000 on the same terms as before. He failed to appear on that day. His whereabouts are not presently known.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Court.

Solicitor for the Applicant: Maliganis Edwards Johnson

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions