12. It seems to me that those common law principles are those that are now enshrined in s 19 of the Bail Act. The special or exceptional circumstances which are urged here relate to Mr Hillier's health. And there is evidence that Mr Hillier has health difficulties. However, those health difficulties are those that apply to many persons serving terms of imprisonment, and the Corrections Health Service here, or in New South Wales, is entirely appropriate to deal with those circumstances.
13. It has always been the case that added to the special or exceptional circumstance that is relevant to a conviction appeal, is the prospects of success of the appeal. Ms Walker has taken me to the remarks of Callinan J in the High Court appeal where his Honour would have in effect upheld the appeal and remitted the matter for retrial. Those issues will, no doubt, be agitated in the Court of Appeal. But it is a fact that it was only Callinan J who took that view on a bench of five Judges. Gleeson CJ expressly took a different view, and the other three judges in the majority did not address that. Their order was not to remit the matter for retrial, rather to remit it for the rehearing of the appeal, thus reinstating the original conviction.
14. It seems to me that this is not a situation where a court can say, at this intermediate stage, that there are strong prospects of success. It is not a situation with a glaring and obvious piece of evidence that either was in and should not have been, or should have been but was not in evidence. It is not a situation of fresh evidence matter, where there is some compelling DNA material or other identification material that could be borne in mind.
15. It is an appeal which is, in the normal run of appeals, a situation where there is a range of circumstances which, taken together, it will be urged, ought persuade the Court of Appeal applying the appropriate test as laid down by the High Court here. Or, I should say, it is restated by the High Court in the Hillier decision, would compel the Court of Appeal to form a view that the jury ought not to have convicted and set aside the conviction.
16. Those arguments will be developed in great detail, no doubt, both by counsel for Mr Hillier and counsel for the Crown at the appeal. But it seems to me that at this stage there is nothing in the material that will be going before the Court of Appeal that puts it in any situation other than any other conviction appeal on that ground where the counsel for the convicted person and the convicted person point to a range of factors which, taken together, they say will persuade a court of appeal to intervene to set aside a jury decision. That is the situation in every appeal brought against every serious conviction, one could say, throughout Australia.
17. I see from figures published just recently, that over 100 convictions for murder occur in superior courts across Australia within a 12 month period. The reality is that in many, if not most, cases appeals are launched, and the ground of appeal is very commonly the ground that will be urged here, or at least was urged before in which the Court of Appeal, by a majority, found in favour, and that is that a reasonable jury ought not to have convicted. That is not, it seems to me, a basis for a grant of bail. The reality is that the practice around Australia is that, properly, in accordance with the Statute and Common Law, bail in cases where there has been conviction by a jury, particularly in the serious cases, is rarely granted indeed.
18. Delay was counted as a factor. Delay is certainly a very significant factor where appeal is against sentence, and where the situation can frequently occur in less serious matters, that the period of imprisonment will be wholly or substantially served before the appeal could be dealt with. This is an appeal against conviction rather than sentence, and the non-parole period is a very long period indeed.
19. This Court was in a position to offer dates for the re-hearing of the appeal in May, although they were, quite properly, not able to be taken up by counsel for Mr Hillier or counsel for the Crown. And the understanding that Ms Walker put before me this morning, which is the understanding the Court has, is that dates are being arranged in August that would be mutually convenient to the senior counsel briefed in the appeal. The senior counsel briefed in the High Court appeal will be available on some mutually convenient dates in August, and the Court will be arranging its sittings to ensure the matter is allocated a date in August to allow the matter to proceed. So delay, it seems to me, is not a special exceptional circumstance in this case. Indeed on the contrary, given the nature of the matter, the court is taking steps to ensure that it will be heard as promptly as possible.
20. It is an unusual set of circumstances in the sense that Mr Hillier had his conviction set aside by the Court of Appeal and was at liberty for some 15 months before the High Court revoked that decision and the Court made it clear that that is itself an unusual set of circumstances. However, the Court, in making the orders that it did, made no comment or observation in relation to Mr Hillier's liberty pending the retrial for the rehearing of appeal. And it seems to me that the unusual nature of the successful Crown appeal against a conviction in the Court of Appeal is not of itself a ground for the further grant of bail.
21. Taking into account all the matters that have emerged before me, I am not satisfied that Mr Hillier is able to get over the very substantial hurdle that has been placed by the Parliament reflecting the long common law tradition in the face of a person who has been convicted of a serious offence by a jury. The reasons set down by Brennan J as he then was, and Street CJ in the cases that I have referred to, is at the centre of the criminal justice system.
22. A verdict of guilty by a jury is a very solemn matter, and while the Court of Criminal Appeal exists properly to review such a matter, it is a very difficult task indeed to persuade a court that bail would be granted following a jury conviction on a charge of murder.
23. In considering the argument based on the likelihood of the success of the appeal, I make it clear that I express no view as to the likelihood one way or the other. Those arguments will need to be dealt with in a full and proper course at the appropriate time, and full and careful consideration given to every point.
24. I am simply stating today that it is not a case, it seems to me, where it could be said that there is that very strong or overwhelming prospect of success that would justify the grant of bail in the circumstances where a jury has convicted a person of murder and a court has imposed the appropriate significant level of sentence that would be expected for such an offence. The application, therefore, is denied on the basis that special or exceptional circumstances are not made out. And I do not need to hear further on the general bail application.
25. I should say that in the course of his submissions counsel for the Crown indicated that it was his expectation that Mr Hillier would remain in the Australian Capital Territory in the remand centre. That would not be the norm. The norm would be that persons serve their term of imprisonment in the New South Wales prison system and would be brought to Canberra shortly before appeal. In these circumstances, however, next week there will be definite dates in August for the hearing of the appeal.
26. Mr Hillier has indicated in the affidavit that was before me that he does wish to further carefully and comprehensively instruct his counsel in relation to the appeal, particularly given the remarks of Callinan J. There is now a ground of appeal that will need to be very carefully addressed that was not a central ground in the matter that was previously heard before the Court of Appeal. And he would be seriously disadvantaged if he was not able to have the sort of regular contact with his counsel and his solicitor. That would be the situation if he was removed to New South Wales.
27. The Australian Capital Territory does not yet have a permanent prison, and it follows that persons who have been convicted and sentenced to a term of imprisonment will generally be serving that sentence in the New South Wales system, and would not necessarily be brought to Canberra even for the hearing of their appeal.
28. This is a case, however, given the unusual way that it has progressed through the system and given the fact that the Court of Appeal has previously upheld the appeal that been reversed by the High Court, given the fact that issues have emerged, at least in one Justice's decision, that will require further careful consideration by Mr Hillier's legal team, and given that Ms Walker has indicated that Mr Hillier has - while probably not being committed today to indicating what those initial grounds are - is giving instruction on a preliminary basis of other possible grounds for appeal, it seems to me that the interests of justice will very much be served by Mr Hillier remaining in the Australian Capital Territory, where he is able to confer closely and in a detailed manner with his legal advisers, and also where access to his children would be easier, but that is not a compelling matter. It obviously is to Mr Hillier, but it is not a compelling matter for my recommendation. My recommendation is based on the fact that justice will be better served if Mr Hillier can have as full as possible access while in custody to his legal team, and that can only occur if he remains in the Australian Capital Territory.
29. I note that it is not a matter that I can give a clear order on. I have indicated that view, and if there was a different view to be taken administratively it may be a case that the court would make binding orders, but I am sure that those will be taken into account.
30. So the application today is refused.