Bail Act 1982 (WA), s 14; Sch 1, Pt C, cl 4

Ex parte; Maher (1986) 1 Qd R 303

1 MURRAY J: The application before the Court is effectively one for bail pending an appeal against conviction and an appeal against sentence. There is a third element to the document of application which asks that the applicant be released on grounds that he has served more than enough time in custody and paid more than enough by way of penalty. That is an element of the application which is beyond the competence of the Court to deal with. It effectively would require the Court to determine the application for leave to appeal against sentence which is before it, which in the present context it is not open to the Court to do, any more than it is, as Mr Rechichi has mentioned during the course of argument, open to the Court to make a definitive judgment about the worth and validity of the appeal against conviction.

2 I should commence my reasons by saying something very briefly about the statutory framework in which the matter comes before the Court. It does so under the Bail Act 1982, s 14, and in particular subs (2) of that section which provides that the Court may exercise a jurisdiction in respect of bail, subject to subs (2a), whatever may have been the previous history of applications in respect of bail. But subs (2a) provides that after the jurisdiction generally provided by the section has been invoked once by a defendant - in other words, after one application has been made - in relation to an offence or group of offences for which he is required to appear, it may not be further invoked by that defendant in relation to that offence or group of offences unless the defendant satisfies the Judge - in this case this Court - that either new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked, or that he failed to adequately present his case for bail on the first occasion.

3 The application is made and the jurisdiction of the Court to deal with the application comes from the provisions of the Act, Schedule 1, Part A which provides that in a case of this kind where bail is sought prior to the determination of an appeal under the Criminal Code the jurisdiction may be exercised by a Judge of the Court acting under s 702 of the Criminal Code or the Court of Criminal Appeal itself.

4 When the application was first brought before the Court it was returned before his Honour Miller J and heard by him on 11 September, at which time his Honour dealt with the matter completely and after a full hearing concluded that the grounds for the grant of bail pending the determination of the applications for leave to appeal had not been made out and the application was refused.

5 It is now renewed before this Court presently constituted and therefore under those circumstances in strict law either new facts have to be demonstrated, new circumstances must have arisen, the circumstances must have changed since the matter was dealt with by Miller J or it has to be the case, as is not suggested, that the applicant failed to adequately present the case for bail to his Honour when the matter first came before the Court.

6 The matter might indeed, in my opinion, be shortly dealt with upon that basis. It should be said, I think, that Mr Rechichi relies upon changed circumstances, in particular concerned with the application for leave to appeal against conviction, those changed circumstances being, he suggests, that two additional grounds of appeal have suggested themselves to him, having regard particularly to decision of this Court in the case of Fowler v R [2001] WASCA 130 and the decision of the High Court in Azzopardi v R [2001] HCA 25.

7 I will come back to those particular matters shortly, but as I understand the thrust of the argument that is presented by Mr Rechichi and developed by him today, having been originally outlined both in submissions placed before the Court and in his affidavit and a particular annexure which is the amendment sought to be made to the application for leave to appeal against conviction, it is upon that basis that he presents the application to the Court today. So it might, as I say, be dealt with upon the basis of whether they truly constitute changed circumstances to justify the Court looking at the matter substantively again, but in my opinion, for my part, it is equally convenient and perhaps more appropriate in the particular circumstances to look again in the context of the applications by way of appeal at the central thrust of the Act in relation to the conditions which govern the grant or refusal of bail after conviction and pending appeal.

8 They are to be found in Schedule 1 to the Bail Act, Cl 4 of Pt C to that Schedule, which provides that the Court is to consider in such a case as this whether there are exceptional reasons why the defendant should not be kept in custody pending the determination of the appeal, and bail is only to be granted if the Court is satisfied that such reasons exist to justify and authorise the grant of bail.

9 In other words it ought to be clear and kept clearly before the mind of the Court that the power to grant bail in those circumstances is of a particularly limited kind. There are a number of cases in which that test for the grant of bail has been considered. One of them is a case upon which the applicant places particular reliance, a decision of Callinan J in the High Court in Marotta v R [1999] HCA 4 and the other is a decision of Caratti v R [1999] WASCA 91, a decision in fact, coincidentally, of his Honour Miller J given on 5 July 1999, in which his Honour reviews the authorities and expresses a conclusion about the approach which may generally be taken to the question whether exceptional circumstances are able to be demonstrated in support of an application for the grant of bail pending appeal.

10 Both of those cases support the view that where one has a combination of a strongly arguable case on appeal and in addition if bail is refused so much of a sentence would be served as to make the resolution of the point of the appeal in favour of the applicant rather a hollow victory, then bail may be granted and the test may be regarded as satisfied. It is not the case that bail in those circumstances must be granted. It is the case that they present themselves as circumstances which may in a particular case constitute exceptional circumstances and justify the grant of bail and it is to be noted that where the matter is approached in that way the courts have been careful to emphasise that one is concerned both with the presence of a strongly arguable case in the mind of the court hearing the application for bail and the service of time in custody if bail is refused.

11 The history of this matter may be shortly referred to. The offences in respect of which the applications for leave to appeal against conviction and sentence are made are four in number, as I understand it: one offence of wilful damage and three of attempted assault with intent to do grievous bodily harm, all contrary to provisions of the Criminal Code. After a trial of some three days in duration in July 2001 in the District Court, the applicant was remanded in custody and was, as I have understood the position, sentenced by the Court in 24 August 2001 to what may be best described for present purposes as an aggregate term of 4 years imprisonment, comprised of three sentences of 4 years imprisonment for the attempted assaults with intent to do grievous bodily harm and a sentence of 2 years imprisonment in respect of the count of wilful damage.

12 Those sentences were all permitted to run concurrently and so, as I say, an aggregate term of 4 years imprisonment was imposed. Eligibility for parole was ordered and so it was the case, as the trial Judge expressly said in passing sentence upon the applicant, that the applicant would become eligible for parole after serving a period of 16 months. Then as to the question of backdating the sentence, the learned trial Judge noticed, as I have understood his Honour's remarks upon sentence, that there were various other matters which had come before the courts in respect of which it might be said that the applicant had spent time in custody together with time spent in custody on remand in relation to the matters for which sentence was to be passed.

13 As to that his Honour thought that, although taking a strict view of the Sentencing Act probably it was the case that no backdating of the sentences he passed was permissible, the point might be stretched and at least some backdating might be permitted to the extent to which allowance had not previously been made and credit had not previously been given in relation to time spent in custody on remand by other sentencing judges.

14 His Honour determined that the appropriate period in that regard was a period of 12 months and so he backdated the sentences he imposed to that extent, leaving, it will be seen, as his Honour thought, a period of 4 months from the date of imposition of sentence before which eligibility for parole, subject to any decision the Parole Board might make, would arrive and the applicant informs us, presumably upon advice that has been received from the authorities, that the earliest eligibility date for release on parole in that context would be November 16 this year and then a period of parole would be undertaken.

15 I make those observations simply by way of an account of the history of the matter and in respect of this question of release on parole and service of the sentence, to make the point that sitting here today, the time in which the applications for leave to appeal against conviction and sentence might be dealt with by this Court, is limited in the context of the non-parole period which probably remains to be served.

16 Indeed, before his Honour Miller J there was some discussion of this matter. His Honour thought that it might be possible to give the appeals expedition to enable them to be dealt with in November before the question of eligibility for parole would arise. The applicant thought, no doubt reasonably, that it would be impossible to take advantage of any such expedition, in view of the current state of his applications and their degree of preparedness, so that was simply noted to be a solution which did not appear to him to be practically possible. His Honour said that the appeal could be brought on for hearing in November but the applicant did not want it to be brought on for hearing then and it therefore remains to be listed in the ordinary way. So it was to be dealt with upon the basis that I have mentioned and the unavailability, for one reason or another, of what is sometimes thought to be a solution in such cases and that is simply to expedite the hearing of the appeals to the degree that that is possible.

17 I will deal with the application for bail in the context of the application for leave to appeal against sentence firstly. I do not propose in these reasons to speak at any length about the application for leave to appeal against sentence. The document I have which records its terms is one dated 28 August 2001 and is the form, as I understand it, in which that application was initiated.

18 The grounds are expressed in lengthy terms but they are those, as I have understood it, which were before Miller J, in respect of which his Honour said:

"In relation to the application for leave to appeal against sentence there are numerous grounds upon which that application is made but in essence the contention is that the sentence was excessive and that insufficient time was given to the applicant by way of an allowance for the past time spent in custody. All of those grounds are arguable but in my view not strongly arguable."

19 As I say it is not productive, I think, to go through those matters in detail. All I need say, it seems to me, is that in relation to the application for leave to appeal against sentence, and in that context, those grounds remain the grounds which are presently relied upon, although further amended grounds are foreshadowed by the applicant in his affidavit in support of the application, and no more can be said than that those grounds are arguable but not strongly arguable. Indeed, it seems to me that the application for leave to appeal against sentence is perhaps not unfairly described as being barely arguable.

20 I turn then to the question of exceptional circumstances in the context of the application for leave to appeal against conviction. Again, that matter was before his Honour Miller J. He detailed the grounds on which the application for leave was before the Court at that time, those concerned with the failure to produce witnesses and documents, the conduct of counsel for the defence at trial, and the criticism advanced of the learned trial Judge in relation to the directions given to the jury. As his Honour Miller J put it:

"Having looked carefully at the grounds of appeal, in my view there are no strongly arguable grounds of appeal against conviction."

21 Again, for my part, I can say no more than that that appears to me also, having looked at those grounds, to be the case. No ground, in that context, to apply the exceptional circumstances test would emerge. It leaves, it seems to me, the question of the additional grounds, those which now appear in the application for amendment which I presume is proposed to be made and appear before this Court in the document dated 19 September 2001, as grounds 1 and 2. They are grounds concerned with matters of the accused's credit and upon those matters he places principal reliance in his application to this Court.

22 Ground 1 is concerned with observations and comments about the facts made by the learned trial Judge to the jury in relation to conflicting statements apparently made out of court on different occasions by the applicant. His Honour said that the jury might well have noticed that those statements made out of court could not both be correct and truthful statements, so that, as his Honour put it to the jury, 'That would have an impact upon your assessment of Mr Rechichi's credibility,' credibility in that context obviously being referred to in the sense of the credibility of so much of that material as was of a self-serving character, so much of the material as was material upon which the applicant would rely in his defence.

23 His Honour then continued and concluded his remarks by saying, 'Once a person's credibility has been undermined in your light then you wonder whether you can accept anything that that person says, but that is a matter for you to make a judgment about yourself.' The applicant puts strongly to this Court the proposition that that ground is of some power and is concerned to focus attention upon what the applicant takes to be an improper aspersion upon his credibility coming from the mouth of the trial Judge in charging the jury on the occasion in question, but it is to be noticed that the observation made by the trial Judge was one which simply drew the jury's attention to the circumstances mentioned and told the jury that it was for them to make a judgment about the impact that the various statements made out of court by the accused had, in considering the credibility of an account which was given of an exculpatory character. Again that seems to me to be at best an arguable ground but not a strongly arguable ground.

24 The second ground upon which reliance is particularly placed is of a similar kind and it concerns a further remark of this character made by his Honour in charging the jury when he said in the part that is quoted in the ground of the application:

"Now, it is important to bear in mind in this case the fact that you have not heard from Mr Rechichi in the witness box. He has not become a witness like the other people who you have heard from during the trial and what do you make of that?"

25 What is not quoted in the ground is his Honour's continuation of that observation where he provided the answer to the question in these terms:

"Well, consistent with this presumption of innocence, he does not have to give evidence at the trial. He is entitled, as he has, to sit in the dock and see whether the prosecution has proved these charges against him. You cannot assume he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other and it does nothing to establish his guilt."

26 There are other observations that his Honour might have made but in that his Honour seems to me to have contented himself with the classic direction that the absence from the witness box of the accused person is not to be taken in any way as evidence which might prove his guilt and is not to be taken in any way to count against him in the course of the trial. That seems to me, in that context, to be a rather weaker additional ground of application for leave to appeal against conviction even than the ground now first advanced.

27 In short, it seems to me that in this context, where reliance is placed upon exceptional circumstances coming from a combination of the time which remains before eligibility for parole will arrive and the sentence might be regarded as being effectively served, and the persuasive power of grounds of appeal, the exceptional circumstances which must be demonstrated before the Court would grant the application for bail are to my mind not demonstrated sufficiently and in my view this application must be dismissed.

28 STEYTLER J: I agree with what has been said by Murray J and would only add this: insofar as the applicant contends that because of his failure adequately to identify or formulate his grounds of appeal at the time of the earlier application he failed adequately to present his case for bail on that occasion, that contention is met, in my opinion, by the conclusion which I too would reach, essentially for the reasons expressed by Murray J, that I am not satisfied that there are exceptional reasons why the applicant should not be kept in custody.

29 There is, in my opinion, essentially for the reasons already expressed, insufficient in the various grounds or proposed grounds of appeal against conviction and sentence to warrant them being described as strongly arguable and no other circumstance has been pointed to which in my opinion can properly be regarded as exceptional. In those circumstances I too would dismiss the application.

30 ROBERTS-SMITH J: The relevant principle on an application for bail pending appeal is that the applicant must show exceptional reasons before bail can be granted. In the context of this application the applicant's primary contention is that his grounds of appeal are so strong and hence the prospects of him succeeding on appeal are so strong as to constitute exceptional reasons.

31 Since his application for bail before Miller J, the applicant has amended, or foreshadowed proposed amendments to, his grounds of appeal against conviction and he has elaborated on those grounds before us today. Even accepting those as relevant changed circumstances, I am not persuaded that either appeal has such a prospect of success as to constitute exceptional reasons. I agree with the reasons given by Murray J and Steytler J for refusing the application and I too would refuse it for those reasons.