REGINA v NUNAN

SPIGELMAN CJ JAMES J BELL J

JUDGMENT 1 SPIGELMAN CJ: On 4 December 1997 the applicant was sentenced by her Honour Judge Murrell SC to a fixed term of ten weeks imprisonment for each of the offences. The appellant had pleaded guilty to an offence of cultivating a prohibited plant, namely cannabis, contrary to s23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). She had pleaded not guilty to a charge of supply of cannabis leaf contrary to s25(1) of the Drug Misuse and Trafficking Act 1985. However, after a trial she was found guilty of the second offence. 2 In her Reasons on Sentence, her Honour emphasized that "The offences should be seen as part and parcel of the same incident". Police had attended the applicant's thirty-five acre property at Rocky Hall where they had located fifteen cannabis plants in a greenhouse. Inside the home police located 3.6 kilograms of dried (or drying) cannabis plants. As her Honour remarked: "The police did not locate any indicia that a commercial enterprise was being conducted. There is no evidence whatsoever that the prisoner was growing or keeping cannabis for the purpose of selling it. Indeed, all the evidence points to the opposite conclusion. The prisoner's own use of cannabis was very substantial ... However ... it is plain from the quantity of material in question that the prisoner was disseminating some of the drug within her premises to other people." 3 The applicant was sentenced on 4 December 1997. On 15 December 1997 she was granted bail by Hidden J of the Supreme Court. She entered bail on 16 December 1997. That bail was granted on the assumption that an appeal had been lodged on her behalf. That appears clearly from the third condition of the bail which included the obligation to 'prosecute the appeal diligently'. The Court was not provided with a transcript of the reasons of Hidden J. 4 The Court was informed that the applicant complied with the reporting conditions attached to the grant of bail by Hidden J. Subsequently she discovered that, contrary to her belief, no appeal was in fact on foot. She surrendered herself and made application for bail which came before Grove J on 18 August 1998. He granted bail. She had been in custody for twelve days. 5 In his reasons of 18 August 1998, Grove J said: "No trace can be found of a notice of appeal or application for leave to appeal to the Court of Criminal Appeal. That is unsurprising having regard to there having been found, apparently in the records kept at Mullawa, a notice of appeal to the District Court filled in and apparently signed by the applicant. That particular form would be appropriate for an appeal for a person sentenced in the Local Court seeking to invoke the jurisdiction of the District Court. In short, it appears that the applicant was given the wrong form. What happened to it after she filled it in is not clear, although as I have said a copy appears to have remained in the records of the custodial centre. The application for bail, however, did reach the Court and a bail file Number 73447 of 1997 was raised ... The bail application came before Hidden J on 15 December 1997. It would appear from my examination of the file to have been assumed by all present on that occasion that there was in existence an application for leave to appeal to the Court of Criminal Appeal. Although the file does not contain any record of his Honour's reason for decision, it is plain that he was satisfied that special circumstances existed, justifying the grant of bail and I would further infer that a powerful consideration would be the circumstance that the entirety of the sentence would be completely served before in any practical sense, the appeal could be heard." 6 Grove J exercised the powers of this Court pursuant to s22(1)(c) of the Criminal Appeal Act 1912 (NSW) to extend time for the lodgment of an application for leave to appeal and he added: "The consequence of that order is that there is now a pending appeal or application for leave to appeal, in respect of which a bail application may be obtained." 7 His Honour also said: "The bail granted by Hidden J is probably a nullity given the absence of a foundation of appeal …". 8 The primary submission on behalf of the applicant was that sentence has now expired and accordingly there is no need to address the application for leave to appeal. 9 The formal sentence of her Honour was in the following terms. "In each matter you are sentenced to a term of imprisonment of ten weeks to commence today 4 December and to expire on 11 February 1998. Those sentences are to be served concurrently." 10 The issue turns on the proper construction of s18(2) of the Criminal Appeal Act 1912 which provides: "18(2) The time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment or penal servitude under the appellant's sentence." 11 The issue is what does 'at liberty on bail (pending the determination of his or her appeal)' mean within this section. 12 Counsel for the applicant relied on s6(e) of the Bail Act 1978 (NSW) which provides: "6. Bail may be granted in accordance with this Act to an accused person in respect of any one or more of the following periods ... (e) The period between the lodging of an appeal and its determination, being an appeal against a conviction or order or against the severity of the person's sentence." 13 By s62 of the Bail Act 1978 the power of the Supreme Court to grant bail in its inherent jurisdiction has been abolished. The power of the Supreme Court to grant bail is identified as a grant of bail 'in accordance with this Act' (s28 of the Bail Act 1978). 14 The power of the Court of Criminal Appeal to grant bail under s30 of the Bail Act 1978 is expressed in the following way: "30. The Court of Criminal Appeal may grant bail in accordance with this Act to any person accused of an offence if, in connection with the offence - (a) an appeal is pending in the Court; .... ". 15 Section 30AA of the Bail Act 1978 provides: "30AA. Notwithstanding anything in this Act, if - (a) an appeal is pending in the Court of Criminal Appeal against - (i) a conviction or indictment; or (ii) a sentence passed on conviction on the indictment ... (b) bail shall not be granted by the Court of Criminal Appeal or any other Court unless it is established that special or exceptional circumstances exist justifying the grant of bail." 16 As quoted above Grove J contemplated the possibility that the order for bail by Hidden J was a 'nullity'. His Honour was not using that term in a technical sense. An order of a superior Court is not a nullity, it is valid until set aside. (See for example Cameron v Cole (1943) 68 CLR 571 esp at 590 to 591). Rather, his Honour was indicating that the bail granted by Hidden J was not authorised by the Bail Act 1978. However, it was never set aside. 17 It may be, therefore, that the order by Hidden J to grant bail satisfied the description of 'liberty on bail' within the meaning of s18(2). However, that is not the full statutory description. These words are immediately succeeded by words in parenthesis as follows: "Pending the determination of his or her appeal". 18 The issue is whether or not the order satisfied the full statutory description of s18(2). Mr Lamprati, who appeared for the Crown in this matter, conceded that unless he could bring himself within s18(2) there was no other basis on which he could contend that the sentence had not expired. 19 In Whan v McConaughy (1984) 153 CLR 631 the appellant had been sentenced to a term of three months to be served by way of periodic detention. He lodged an appeal and was granted bail. When he appeared again in the Supreme Court it was common ground that the appeal which he had lodged was incompetent. He was granted further bail in anticipation of instituting proceedings for relief by way of prerogative writ. As the four person joint judgment described the case: "The effect of the argument which it is sought to advance on behalf of the applicant is that the unforeseen consequence of the grant and continuation of bail without any accompanying order that the execution of his sentence be stayed, was that he had avoided serving a term of periodic detention to which he had been duly sentenced. It is obvious that that argument has nothing to recommend it in terms of substantive merit. The question which the applicant wishes to raise is, however, a question of some general importance involving personal liberty. Reluctantly, we have come to the view that special leave to appeal should be granted." (Page 634 to 635). 20 Similar considerations of a lack of substantive merit in the points taken, however, arise in this case. 21 In Whan v McConaughy the joint judgment went on to state: "A sentence of imprisonment, like any other order, must operate in accordance with its terms as interpreted in the context of any statutory provision pursuant to which it is imposed or framed ... The framing of the sentence with the effect of over-riding statutory provisions can, however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date ... In the absence of statutory provisions or valid Court order to the contrary, however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day." (Pages 635 to 636). 22 The Court referred to s8 of the Periodic Detention of Prisoners Act 1981 (NSW) and construed it to mean that the term of imprisonment that is required to be served is the term commencing on the specifically designated date. Their Honours went on to say: "The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run." (636) 23 This case is not distinguishable in this respect from Whan v McConaughy. Section 8 of the Sentencing Act 1989 is to the same effect as s8 of Periodic Detention of Prisoners Act 1981 considered in that case. It provides: "8(1) When setting a minimum or fixed term, a court is required to specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole .... (3) In specifying a day under this section the court may rely on the information then available to the court. (4) The purpose of this section is to require the court to give information about the likely effects of a sentence." 24 In Whan v McConaughy the Court went on to consider whether the orders for bail purportedly made by the Supreme Court operated to prevent the commencement of the term of imprisonment or to interrupt it after it had commenced. The Court directed attention to s6(e) of the Bail Act 1978, to which I have referred above. It then directed attention to the extended definition of 'appeal' in s4 of the Bail Act to include 'a proceeding by way of appeal'. The Court concluded: "The extended definition is wide enough to comprehend proceedings in the nature of prohibition or certiorari the object of which is to prohibit further proceedings on, or to secure a quashing of a conviction or sentence for want of jurisdiction or error of law or otherwise ... The expression 'proceeding by way of appeal' is also sufficiently wide to include a proceeding by way of appeal which was duly instituted but which was incompetent." (637) 25 Relevant to this case is the phrase used in the joint judgment of an "appeal which was duly instituted". 26 In Whan v McConaughy the High Court went on to hold that the grant of bail did not have the effect of a stay of the order of sentence. It concluded that the sentence had run its term by the time that the Court of Appeal purported to set a new date for its commencement. Section 18(2) of the Criminal Appeal Act 1912, (then found in s18(3) of the Act before a 1995 amendment) was inapplicable. The Court of Appeal was the relevant court, not the Court of Criminal Appeal. 27 The joint judgment in Whan v McConaughy established that the phrase 'proceeding by way of appeal' is sufficiently wide to encompass an appeal 'which was duly instituted but which was incompetent'. In the case now before the Court there was no appeal of any character to this Court, let alone one that was 'duly instituted'. 28 In his submissions Mr Lamprati for the Crown said that the purpose of Hidden J was to release the applicant pending a determination of an appeal, it then being assumed by all persons appearing before him that an appeal had been lodged. Purpose or intention is not sufficient to answer the statutory description in the words of s18(2) 'liberty on bail (pending the determination of his or her appeal)'. This is a provision directly benefiting the liberty of the accused and must be construed strictly in accordance with the well-established doctrine for provisions having such consequences. (See for example Re Bolton; Ex parte Beane (1987) 162 CLR 514). 29 In my view the absence of an appeal to this Court prevents the statutory description within s18(2) being satisfied on the facts of this case, for the same reasons that the High Court in Whan v McConaughy concluded in that case, with respect to the Periodic Detention of Prisoners Act there under consideration. In my opinion, s8 of the Sentencing Act is to the same effect. Time continued to run under the sentences originally imposed by her Honour. Section 18(2) was, as I have indicated above, the only provision which could have had a relevant consequence. On its proper construction, in my view, it did not have that consequence. 30 Accordingly, the first of the submissions made on behalf of the applicant is upheld. There is no need for the Court to address the application for leave to appeal as the subject matter of complaint has expired. 31 JAMES J: I agree with the judgment of the Chief Justice. 32 BELL J: I also agree.

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